3.909-1 Prohibition
Source: FAR 3.909-1 on acquisition.gov
Federal contracts cannot be awarded to entities that restrict employees or subcontractors from lawfully reporting waste, fraud, or abuse to federal authorities through internal confidentiality agreements.
Overview
FAR 3.909-1 prohibits the federal government from awarding contracts using FY 2015 or later funds to entities that require employees or subcontractors to sign internal confidentiality agreements restricting lawful reporting of waste, fraud, or abuse to authorized federal officials. This rule ensures that whistleblowers can report wrongdoing without fear of violating internal company policies. However, the prohibition does not apply to nondisclosure agreements related to classified information, such as Standard Form 312 or Form 4414, or other federal forms governing classified disclosures.
Key Rules
- Prohibition on Restrictive Confidentiality Agreements
- Contractors cannot require employees or subcontractors to sign internal confidentiality agreements that prevent or restrict lawful reporting of waste, fraud, or abuse to federal authorities.
- Exemption for Classified Information NDAs
- The prohibition does not override requirements for nondisclosure agreements related to classified information, such as SF 312, Form 4414, or similar federal forms.
Responsibilities
- Contracting Officers: Must ensure that contract awards do not go to entities with prohibited internal confidentiality agreements.
- Contractors: Must not impose or enforce internal confidentiality agreements that restrict lawful whistleblower disclosures to federal authorities.
- Agencies: Must oversee compliance and ensure funds are not used in violation of this prohibition.
Practical Implications
- This rule protects whistleblower rights and encourages reporting of misconduct.
- Contractors must review and revise internal policies and agreements to ensure compliance.
- Failure to comply can result in ineligibility for federal contracts and potential legal consequences.
(a) The Government is prohibited from using fiscal year 2015 and subsequent fiscal year funds for a contract with an entity that requires employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information. See section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions.)
(b) The prohibition in paragraph (a) of this section does not contravene requirements applicable to Standard Form 312 (Classified Information Nondisclosure Agreement), Form 4414 (Sensitive Compartmented Information Nondisclosure Agreement), or any other form issued by a Federal department or agency governing the nondisclosure of classified information.