52.203-18 Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation
Source: FAR 52.203-18 on acquisition.gov
Offerors must certify they do not require employees or subcontractors to sign confidentiality agreements that restrict lawful whistleblower reporting related to federal contracts.
Overview
FAR 52.203-18 requires offerors to represent that they do not require employees or subcontractors to sign internal confidentiality agreements or statements that would restrict lawful reporting of waste, fraud, or abuse to federal authorities. This provision implements statutory prohibitions on using appropriated funds for contracts with entities that impose such restrictions, ensuring whistleblower protections are upheld in federal contracting. The rule does not affect nondisclosure agreements related to classified information, such as Standard Form 312 or Form 4414.
Key Rules
- Prohibition on Restrictive Confidentiality Agreements
- Contractors cannot require employees or subcontractors to sign internal confidentiality agreements that prohibit or restrict lawful reporting of waste, fraud, or abuse to federal investigative or law enforcement representatives.
- Representation Requirement
- Offerors must affirmatively represent, as part of their offer, that they do not and will not impose such restrictive agreements or statements.
- Exemption for Classified Information NDAs
- The prohibition does not apply to nondisclosure agreements required for classified information, such as SF 312 or Form 4414.
Responsibilities
- Contracting Officers: Must include this provision in solicitations as prescribed and ensure offerors provide the required representation.
- Contractors/Offerors: Must ensure internal policies and agreements comply, and must represent compliance in their offer.
- Agencies: Must not award contracts using appropriated funds to non-compliant entities.
Practical Implications
- This provision protects whistleblowers and ensures transparency in government contracting.
- Contractors must review and, if necessary, revise internal confidentiality policies to avoid disqualification.
- Failure to comply can result in ineligibility for federal contracts and potential legal consequences.
As prescribed in 3.909-3(a), insert the following provision:
Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation (Jan 2017)
(a) Definition. As used in this provision-
Internal confidentiality agreement or statement, subcontract, and subcontractor , are defined in the clause at 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements.
(b) In accordance with 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), Government agencies are not permitted to use funds appropriated (or otherwise made available) for contracts 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.
(c) The prohibition in paragraph (b) of this provision 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.
(d) Representation. By submission of its offer, the Offeror represents that it will not require its employees or subcontractors to sign or comply with 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).
(End of provision)