52.209-13 Violation of Arms Control Treaties or Agreements-Certification
Source: FAR 52.209-13 on acquisition.gov
Offerors must certify they have not contributed to foreign violations of arms control agreements or face serious consequences, including contract termination and debarment, for false statements.
Overview
FAR 52.209-13 requires offerors to certify that neither they nor their owned/controlled entities have engaged in activities contributing to a foreign country’s violation of arms control, nonproliferation, or disarmament agreements, as determined by the President or Secretary of State. This provision applies to acquisitions above the simplified acquisition threshold and excludes commercial products and services. Offerors must review the most recent unclassified annual report to Congress (per the Arms Control and Disarmament Act) to determine if their activities are implicated. If unable to certify compliance, offerors must provide specific information regarding waivers or cessation of activities. False certifications can result in contract termination, suspension, or debarment.
Key Rules
- Applicability
- Applies to non-commercial acquisitions above the simplified acquisition threshold.
- Certification Requirement
- Offerors must certify they and their controlled entities have not contributed to violations or provide information if unable to certify.
- Review of Annual Report
- Offerors must consult the annual unclassified report to identify relevant foreign countries and activities.
- Submission of Offer
- Offers cannot be submitted without the required certification or supporting information regarding waivers or cessation.
- Remedies for False Certification
- False certifications may lead to contract termination, suspension, or debarment.
Responsibilities
- Contracting Officers: Ensure inclusion of the provision and verify offeror certifications.
- Contractors: Review the annual report, complete the certification accurately, and provide supporting information if necessary.
- Agencies: Oversee compliance and enforce remedies for false certifications.
Practical Implications
- Ensures U.S. contractors do not support foreign violations of arms control agreements.
- Requires due diligence and documentation review by offerors.
- False certifications carry significant risks, including loss of contract and exclusion from future government work.
As prescribed in 9.109-5 , insert the following provision:
Violation of Arms Control Treaties or Agreements-Certification (Nov 2021)
(a) This provision does not apply to acquisitions at or below the simplified acquisition threshold or to acquisitions of commercial products and commercial services as defined in Federal Acquisition Regulation 2.101.
(b) Certification. [Offeror shall check either (1) or (2).]
__ (1) The Offeror certifies that–
(i) It does not engage and has not engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2593a&num=0&edition=prelim" target="_blank">22 U.S.C. 2593a). The report is available at https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/" target="_blank">https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/; and
(ii) No entity owned or controlled by the Offeror has engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2593a&num=0&edition=prelim" target="_blank">22 U.S.C. 2593a). The report is available at https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/" target="_blank">https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/; or
__ (2) The Offeror is providing separate information with its offer in accordance with paragraph (d)(2) of this provision.
(c) Procedures for reviewing the annual unclassified report (see paragraph (b)(1) of this provision). For clarity, references to the report in this section refer to the entirety of the annual unclassified report, including any separate reports that are incorporated by reference into the annual unclassified report.
(1) Check the table of contents of the annual unclassified report and the country section headings of the reports incorporated by reference to identify the foreign countries listed there. Determine whether the Offeror or any person owned or controlled by the Offeror may have engaged in any activity related to one or more of such foreign countries.
(2) If there may have been such activity, review all findings in the report associated with those foreign countries to determine whether or not each such foreign country was determined to be in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or to be not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. For clarity, in the annual report an explicit certification of non-compliance is equivalent to a determination of violation. However, the following statements in the annual report are not equivalent to a determination of violation:
(i) An inability to certify compliance.
(ii) An inability to conclude compliance.
(iii) A statement about compliance concerns.
(3) If so, determine whether the Offeror or any person owned or controlled by the Offeror has engaged in any activity that contributed to or is a significant factor in the determination in the report that one or more of these foreign countries is in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. Review the narrative for any such findings reflecting a determination of violation or non-adherence related to those foreign countries in the report, including the finding itself, and to the extent necessary, the conduct giving rise to the compliance or adherence concerns, the analysis of compliance or adherence concerns, and efforts to resolve compliance or adherence concerns.
(4) The Offeror may submit any questions with regard to this report by email to NDAA1290Cert@state.gov. To the extent feasible, the Department of State will respond to such email inquiries within 3 business days.
(d) Do not submit an offer unless—
(1) A certification is provided in paragraph (b)(1) of this provision and submitted with the offer; or
(2) In accordance with paragraph (b)(2) of this provision, the Offeror provides with its offer information that the President of the United States has
(i) Waived application under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2593e&num=0&edition=prelim" target="_blank">22 U.S.C. 2593e(d) or (e); or
(ii) Determined under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2593e&num=0&edition=prelim" target="_blank">22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which measures were imposed under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2593e&num=0&edition=prelim" target="_blank">22 U.S.C. 2593e(b).
(e) Remedies. The certification in paragraph (b)(1) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly submitted a false certification, in addition to other remedies available to the Government, such as suspension or debarment, the Contracting Officer may terminate any contract resulting from the false certification.
(End of provision)