3.104-5 Disqualification
Source: FAR 3.104-5 on acquisition.gov
Agency officials must promptly disqualify themselves and provide written notice if employment contacts with an offeror occur, and may only resume participation after meeting strict legal and ethical requirements.
Overview
FAR 3.104-5 outlines the procedures and requirements for disqualification of agency officials from participating in a procurement when employment contacts with an offeror occur. It addresses the need for disqualification when such contacts are made directly or through intermediaries, the process for submitting a disqualification notice, and the conditions under which an official may resume participation in the procurement. The section also references compliance with related statutes and regulations, such as 18 U.S.C. 208 and 5 CFR part 2635, to ensure impartiality and integrity in the procurement process.
Key Rules
- Employment Contacts Through Intermediaries
- Disqualification may be required if employment contacts occur through agents or intermediaries, not just direct contact.
- Disqualification Notice
- Officials must promptly submit a written notice of disqualification, identifying the procurement, their role, and the offeror involved, to the contracting officer, source selection authority, and immediate supervisor.
- Resumption of Participation
- Disqualified officials may only resume participation if authorized by the agency, after meeting specific conditions and with written approval from the HCA, who must consult with the agency ethics official.
- Additional Legal Compliance
- Officials must comply with 18 U.S.C. 208 and 5 CFR part 2635, and may only be reinstated if they receive a waiver or authorization as specified.
Responsibilities
- Contracting Officers: Must receive and process disqualification notices and ensure compliance with reinstatement procedures.
- Contractors: Should avoid improper employment contacts and be aware of the implications for procurement officials.
- Agencies: Must oversee the disqualification and reinstatement process, ensuring all legal and ethical requirements are met.
Practical Implications
- This section exists to prevent conflicts of interest and maintain procurement integrity.
- It impacts daily operations by requiring prompt reporting and documentation of employment contacts and disqualifications.
- Common pitfalls include failure to properly notify or document disqualification, or resuming participation without proper authorization.
(a) Contacts through agents or other intermediaries. Employment contacts between the employee and the offeror, that are conducted through agents, or other intermediaries, may require disqualification under 3.104-3(c)(1). These contacts may also require disqualification under other statutes and regulations. (See 3.104-2(b)(2).)
(b) Disqualification notice. In addition to submitting the contact report required by 3.104-3(c)(1), an agency official who must disqualify himself or herself pursuant to 3.104-3(c)(1)(ii) must promptly submit written notice of disqualification from further participation in the procurement to the contracting officer, the source selection authority if other than the contracting officer, and the agency official’s immediate supervisor. As a minimum, the notice must-
(1) Identify the procurement;
(2) Describe the nature of the agency official’s participation in the procurement and specify the approximate dates or time period of participation; and
(3) Identify the offeror and describe its interest in the procurement.
(c) Resumption of participation in a procurement.
(1) The official must remain disqualified until such time as the agency, at its sole and exclusive discretion, authorizes the official to resume participation in the procurement in accordance with 3.104-3(c)(1)(ii).
(2) After the conditions of 3.104-3(c)(1)(ii)(A) or (B) have been met, the head of the contracting activity (HCA), after consultation with the agency ethics official, may authorize the disqualified official to resume participation in the procurement, or may determine that an additional disqualification period is necessary to protect the integrity of the procurement process. In determining the disqualification period, the HCA must consider any factors that create an appearance that the disqualified official acted without complete impartiality in the procurement. The HCA’s reinstatement decision should be in writing.
(3) Government officer or employee must also comply with the provisions of http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section208&num=0&edition=prelim" target="_blank">18 U.S.C.208 and 5 CFR part 2635 regarding any resumed participation in a procurement matter. Government officer or employee may not be reinstated to participate in a procurement matter affecting the financial interest of someone with whom the individual is seeking employment, unless the individual receives-
(i) A waiver pursuant to http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section208(b)(1)&num=0&edition=prelim" target="_blank">18 U.S.C. 208(b)(1) or (b)(3); or
(ii) An authorization in accordance with the requirements of subpart F of 5 CFR part 2635.