9.109-4 Certification by the offeror
Source: FAR 9.109-4 on acquisition.gov
Offerors must submit a specific certification with each offer confirming they and their affiliates have not contributed to arms control violations, or provide evidence of a waiver or cessation, or risk severe penalties for false statements.
Overview
FAR 9.109-4 requires offerors to certify, as a condition of contract eligibility, 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 with the United States. Alternatively, offerors may provide evidence of a Presidential waiver or a determination that prohibited activities have ceased. The certification must be submitted with the offer (not as part of annual SAM representations). Contracting officers may rely on the certification unless there is reason to doubt its validity. False certifications can result in suspension or debarment for at least two years.
Key Rules
- Certification Requirement
- Offerors must certify they and their controlled entities have not contributed to violations of arms control agreements, or provide evidence of a waiver or cessation determination.
- Submission Timing
- Certification must be submitted with the offer, not through annual SAM representations.
- Reliance on Certification
- Contracting officers may rely on the certification unless there is reason to question it.
- Consequences of False Certification
- False certifications can lead to suspension or debarment for at least two years.
Responsibilities
- Contracting Officers: Must ensure receipt of the required certification and may rely on it unless there is cause for doubt; must take action if a false certification is discovered.
- Contractors: Must accurately certify compliance or provide required information about waivers or cessation; must submit certification with each offer.
- Agencies: Must enforce compliance and apply remedies for false certifications.
Practical Implications
- This regulation ensures that U.S. government contracts are not awarded to entities involved in violating arms control agreements, supporting national security objectives.
- Contractors must be diligent in reviewing their own and their affiliates' activities to avoid false certification.
- Failure to comply or submitting a false certification can result in severe penalties, including multi-year debarment.
(a) In order to be eligible for contract award, an offeror is required to—
(1)
(i) Certify that 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) Similarly certify with regard to any entity owned or controlled by the offeror; or
(2) Provide 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).
(b) If certifying in accordance with 52.209-13(b)(1), the Offeror is required to submit the certification with the offer. It is not included in the annual representations and certifications in the System for Award Management.
(c) The contracting officer may rely on an offeror's certification unless the contracting officer has reason to question the certification.
(d) Upon the determination of a false certification under 52.209-13, an offeror will be subject to such remedies as suspension or debarment under subpart 9.4 shall be for a period of not less than 2 years, inclusive of any suspension period, if suspension precedes a debarment (see 9.406-4(a)(1)(iii) and (a)(2)).