52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements
Source: FAR 52.203-19 on acquisition.gov
Contractors must not use internal confidentiality agreements that restrict lawful reporting of waste, fraud, or abuse on government contracts, and must notify employees and subcontractors that any conflicting agreements are void.
Overview
FAR 52.203-19 prohibits contractors from requiring employees or subcontractors to sign internal confidentiality agreements or statements that restrict lawful reporting of waste, fraud, or abuse related to government contracts. The clause ensures that such agreements do not impede individuals from communicating with authorized federal investigative or law enforcement representatives. Contractors must also notify current employees and subcontractors that any conflicting preexisting confidentiality agreements are no longer in effect. The clause does not override requirements for nondisclosure of classified information under specific federal forms. Noncompliance can result in the prohibition of the use of appropriated funds, and contractors are required to flow down this clause to all subcontracts.
Key Rules
- Prohibition on Restrictive Confidentiality Agreements
- Contractors cannot require internal confidentiality agreements that prevent lawful reporting of waste, fraud, or abuse to federal authorities.
- Notification Requirement
- Contractors must inform employees and subcontractors that any conflicting preexisting agreements are no longer valid.
- Exemption for Classified Information
- The clause does not affect nondisclosure agreements required for classified information (e.g., SF 312, Form 4414).
- Funding Consequences
- Government funds may not be used if the contractor is found noncompliant with this clause.
- Flowdown Requirement
- The substance of this clause must be included in all subcontracts.
Responsibilities
- Contracting Officers: Ensure inclusion of this clause in applicable contracts and monitor compliance.
- Contractors: Avoid restrictive confidentiality agreements, notify affected parties, and flow down the clause to all subcontracts.
- Agencies: Withhold appropriated funds if noncompliance is determined and oversee enforcement.
Practical Implications
- This clause protects whistleblower rights and ensures transparency in government contracting.
- Contractors must review and update internal confidentiality practices and agreements.
- Failure to comply can result in loss of contract funding and potential legal consequences.
As prescribed in 3.909-3(b), insert the following clause:
Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017)
(a) Definitions. As used in this clause-
Internal confidentiality agreement or statement means a confidentiality agreement or any other written statement that the contractor requires any of its employees or subcontractors to sign regarding nondisclosure of contractor information, except that it does not include confidentiality agreements arising out of civil litigation or confidentiality agreements that contractor employees or subcontractors sign at the behest of a Federal agency.
Subcontract means any contract as defined in subpart 2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.
Subcontractor means any supplier, distributor, vendor, or firm (including a consultant) that furnishes supplies or services to or for a prime contractor or another subcontractor.
(b) The Contractor shall 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).
(c) The Contractor shall notify current employees and subcontractors that prohibitions and restrictions of any preexisting internal confidentiality agreements or statements covered by this clause, to the extent that such prohibitions and restrictions are inconsistent with the prohibitions of this clause, are no longer in effect.
(d) The prohibition in paragraph (b) of this clause 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.
(e) 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) use of funds appropriated (or otherwise made available) is prohibited, if the Government determines that the Contractor is not in compliance with the provisions of this clause.
(f) The Contractor shall include the substance of this clause, including this paragraph (f), in subcontracts under such contracts.
(End of clause)