3.909-2 Representation by the offeror
Source: FAR 3.909-2 on acquisition.gov
Offerors must certify they do not restrict employees or subcontractors from lawfully reporting waste, fraud, or abuse, or they will be ineligible for federal contract awards.
Overview
FAR 3.909-2 requires offerors to affirmatively represent that they do not require employees or subcontractors to sign internal confidentiality agreements or statements that would prohibit or restrict lawful reporting of waste, fraud, or abuse related to government contract performance. This representation is a condition of eligibility for contract award. The contracting officer is generally permitted to rely on the offeror's representation unless there is reason to doubt its accuracy. This rule is designed to ensure transparency and protect whistleblower rights in federal contracting.
Key Rules
- Offeror Representation Requirement
- Offerors must certify they do not require restrictive confidentiality agreements that would prevent lawful reporting of waste, fraud, or abuse.
- Eligibility for Award
- Failure to make this representation renders the offeror ineligible for contract award.
- Reliance by Contracting Officer
- Contracting officers may rely on the offeror's representation unless there is a reason to question its validity.
Responsibilities
- Contracting Officers: Must ensure the required representation is obtained and may rely on it unless there is reason to question it.
- Contractors/Offerors: Must not require employees or subcontractors to sign restrictive confidentiality agreements and must make the required representation.
- Agencies: Must enforce this requirement as part of the contract award process.
Practical Implications
- This section exists to protect whistleblower rights and promote transparency in government contracting.
- Contractors must review their internal policies and agreements to ensure compliance before submitting an offer.
- Failure to comply can result in ineligibility for contract awards, making this a critical compliance area for all offerors.
(a) In order to be eligible for contract award, an offeror must represent that it will not require its employees or subcontractors to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting waste, fraud, or abuse related to the performance of a Government contract to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information (e.g., agency Office of the Inspector General). Any offeror that does not so represent is ineligible for award of a contract.
(b) The contracting officer may rely on an offeror's representation unless the contracting officer has reason to question the representation.