3.909-3 Solicitation provision and contract clause
Source: FAR 3.909-3 on acquisition.gov
Contracting officers must include specific FAR provisions and clauses to prohibit certain internal confidentiality agreements when using applicable federal funds, with exceptions for personal services contracts with individuals.
Overview
FAR 3.909-3 outlines the requirements for including specific solicitation provisions and contract clauses when using funds subject to the prohibition on contracting with entities that require certain internal confidentiality agreements or statements. Contracting officers must ensure that the appropriate FAR provisions and clauses are included in solicitations and contracts to comply with statutory restrictions on the use of federal funds, particularly those related to FY 2015 and subsequent years. There are exceptions for personal services contracts with individuals, where these requirements do not apply if the services are performed solely by the individual.
Key Rules
- Provision at 52.203-18
- Must be included in all solicitations using applicable funds, except for personal services contracts with individuals performing the work themselves.
- Clause at 52.203-19
- Must be included in all solicitations and resulting contracts (except personal services contracts with individuals).
- Existing contracts (other than personal services contracts with individuals) must be modified to include this clause before obligating FY 2015 or later funds subject to the prohibition.
Responsibilities
- Contracting Officers: Ensure inclusion of the correct provision and clause in solicitations and contracts; modify existing contracts as required; identify exceptions for personal services contracts with individuals.
- Contractors: Review solicitations and contracts for the required provision and clause; ensure compliance with the prohibition on certain internal confidentiality agreements.
- Agencies: Oversee compliance with statutory funding restrictions and ensure proper contract administration.
Practical Implications
- This section ensures federal funds are not used with entities that restrict employees from reporting waste, fraud, or abuse.
- Contracting officers must be diligent in applying the correct clauses and identifying exceptions.
- Failure to comply can result in improper contract awards or funding obligations, leading to potential legal and financial consequences.
When using funding subject to the prohibitions in 3.909-1(a), the contracting officer shall-
(a)
(1) Include the provision at 52.203-18, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation, in all solicitations, except as provided in paragraph (a)(2) of this section; and
(2) Do not insert the provision in solicitations for a personal services contract with an individual if the services are to be performed entirely by the individual, rather than by an employee of the contractor or a subcontractor.
(b)
(1) Include the clause at 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements, in all solicitations and resultant contracts, other than personal services contracts with individuals.
(2) Modify existing contracts, other than personal services contracts with individuals, to include the clause before obligating FY 2015 or subsequent FY funds that are subject to the same prohibition on internal confidentiality agreements or statements.