Federal Acquisition Regulation: Contractor Employee Internal Confidentiality Agreements, 3763-3767 [2016-01050]
Download as PDF
<![CDATA[
wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Proposed Rules
causes as it considers to be ‘‘in the
national public interest and
appropriate.’’ See 39 U.S.C. 416(b). On
June 12, 2001, the Postal Service
published a final rule establishing the
regulations in 39 CFR part 551 for the
discretionary Semipostal Stamp
Program (66 FR 31826). Minor revisions
were made to these regulations to
implement Public Law 107–67, 115 Stat.
514 (2001), and to reflect minor
organizational changes in the Postal
Service (67 FR 5215 (February 5, 2002)).
On February 19, 2004, the Postal Service
published a final rule clarifying the
cost-offset policy for semipostal stamps
(69 FR 7688), and on February 9, 2005,
the Postal Service also published an
additional minor clarifying revision to
these cost-offset regulations (70 FR
6764).
The Postal Service now proposes to
revise paragraphs (a) and (b) of 39 CFR
551.5. A brief description of each
proposed change follows.
The proposed revision of § 551.5(a)
would remove certain restrictions on the
commencement date of the
discretionary Semipostal Stamp
Program. Under current regulations, the
10-year period for the discretionary
semipostal stamp program commences
on a date determined by the Office of
Stamp Services, but that date must be
after the sales period of the Breast
Cancer Research Stamp (BCRS) is
concluded. Most recently, Public Law
114–99 (December 11, 2015) extended
that sales period to December 31, 2019.
The proposed revision of § 551.5(a)
would specify that the 10-year period
will commence on a date determined by
the Office of Stamp Services, but this
date need not be after the BCRS sale
period concludes.
The proposed revision of § 551.5(b)
would clarify that although only one
semipostal stamp under the
discretionary Semipostal Stamp
Program under 39 U.S.C. 416 (a
‘‘discretionary program semipostal
stamp’’) will be offered for sale at any
one time, other semipostal stamps
required to be issued by Congress (such
as the BCRS) may be on sale when a
discretionary program semipostal stamp
is on sale. Current regulations state that
the Postal Service will offer only one
semipostal stamp for sale at any given
time during the 10-year period (not
specifying whether it is a discretionary
program semipostal stamp or a
semipostal stamp required by Congress).
The proposed revision of § 551.5(b)
would clarify that the one-at-a-time
limitation on the sale of semipostal
stamps applies only to discretionary
program semipostal stamps.
VerDate Sep<11>2014
14:28 Jan 21, 2016
Jkt 238001
We will publish an appropriate
amendment to 39 CFR part 551 to reflect
these changes if the proposal is adopted.
List of Subjects in 39 CFR Part 551
Administrative practice and
procedure.
In accordance with 39 U.S.C.
416(e)(2), the Postal Service invites
public comment on the following
proposed amendments to the Code of
Federal Regulations. For the reasons
stated in the preamble, the Postal
Service proposes to revise 39 CFR part
551 as follows:
PART 551—SEMIPOSTAL STAMP
PROGRAM
1. The authority citation for 39 CFR
part 551 continues to read as follows:
■
Authority: 39 U.S.C. 101, 201, 203, 401,
403, 404, 410, 414, 416.
2. In § 551.5, revise paragraphs (a) and
(b) to read as follows:
■
§ 551.5
Frequency and other limitations.
(a) The Postal Service is authorized to
issue semipostal stamps for a 10-year
period beginning on the date on which
semipostal stamps are first sold to the
public under 39 U.S.C. 416. The Office
of Stamp Services will determine the
date of commencement of the 10-year
period.
(b) The Postal Service will offer only
one semipostal stamp pursuant to the
discretionary semipostal stamp program
under 39 U.S.C. 416 for sale at any given
time during the 10-year period.
*
*
*
*
*
Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2016–01070 Filed 1–21–16; 8:45 am]
BILLING CODE 7710–12–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 3, 4, and 52
[FAR Case 2015–012; Docket No. 2015–
0012; Sequence No. 1]
RIN 9000–AN04
Federal Acquisition Regulation:
Contractor Employee Internal
Confidentiality Agreements
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
AGENCY:
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
ACTION:
3763
Proposed rule.
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement a section of the Consolidated
and Further Continuing Appropriations
Act, 2015, that prohibits the use of
funds, appropriated or otherwise made
available, for a contract with an entity
that requires employees or
subcontractors to sign an internal
confidentiality agreement that restricts
such employees or subcontractors from
lawfully reporting waste, fraud, or abuse
to a designated Government
representative authorized to receive
such information.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat at one of the addresses
shown below on or before March 22,
2016 to be considered in the formation
of the final rule.
ADDRESSES: Submit comments in
response to FAR Case 2015–012 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching for ‘‘FAR Case 2015–012’’.
Select the link ‘‘Comment Now’’ that
corresponds with FAR Case 2015–012.
Follow the instructions provided on the
screen. Please include your name,
company name (if any), and ‘‘FAR Case
2015–012’’ on your attached
document(s).
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Ms. Flowers, 1800 F
Street NW., 2nd Floor, Washington, DC
20405–0001.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2015–012’’ in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Cecelia L. Davis, Procurement Analyst,
at 202–219–0202 for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAR Case 2015–012.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
This proposed rule revises the FAR to
implement section 743 of Division E,
E:\FR\FM\22JAP1.SGM
22JAP1
3764
Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Proposed Rules
Title VII, of the Consolidated and
Further Continuing Appropriations Act,
2015 (Pub. L. 113–235) and successor
provisions in subsequent appropriations
acts (and as extended in continuing
resolutions). Section 743 prohibits the
use of funds appropriated or otherwise
made available by Division E or any
other Act for a contract, grant, or
cooperative agreement 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.
II. Discussion and Analysis
wgreen on DSK2VPTVN1PROD with PROPOSALS
A. FAR Changes
This proposed rule implements
section 743 by adding a new FAR
section 3.909, Prohibition on
contracting with entities that require
certain internal confidentiality
agreements. The proposed rule is
written to also cover future successor
provisions in subsequent appropriations
acts and perpetuation of the
requirement through continuing
resolutions. This allows more seamless
implementation. If at any point an
appropriations act does not include a
similar prohibition, the FAR will be
modified accordingly.
The proposed rule requires that each
offeror, in order to be eligible for award,
represent, by submission of its offer,
that it does not require employees or
subcontractors to sign or comply with
such internal confidentiality
agreements. The representation is in a
new provision at FAR section 52.203–
XX, Prohibition on Contracting with
Entities that Require Certain Internal
Confidentiality Agreements—
Representation, which must be included
in all solicitations, except solicitations
for personal services contracts with an
individual, using funds subject to the
prohibition, except that this
requirement is implemented for
commercial item solicitations by the
part 12 provision at FAR section
52.212–3, paragraph (q). Contracting
officers shall not insert this provision in
solicitations for personal services
contracts 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.
VerDate Sep<11>2014
14:28 Jan 21, 2016
Jkt 238001
The new FAR clause 52.203–YY,
Prohibition on Contracting with Entities
that Require Certain Internal
Confidentiality Agreements, notifies the
contractor of the prohibition on use of
funds for the contract, if the contractor
is in noncompliance with the
requirements of the clause. The clause
also requires that contractors notify
employees that any such agreements in
pre-existing confidentiality agreements
are no longer in effect. This notice could
be accomplished through normal
business communication channels, such
as email. This clause must be included
in all solicitations and resultant
contracts, except for personal services
contracts with individuals.
Existing contracts must be modified to
include the clause before obligating
Fiscal Year (FY) 2015 or subsequent FY
funds that are subject to the same
prohibition on confidentiality
agreements, except for personal services
contracts with individuals.
There are also conforming changes at
FAR sections 3.900, 4.1202, 52.204–8,
and 52.212–5.
B. Applicability
DoD, GSA, and NASA are proposing
to apply this rulemaking to all
solicitations and resultant contracts that
are funded with FY 2015 funds or
subsequent FY funds that are subject to
the same prohibition on confidentiality
agreements, including contracts and
subcontracts for acquisitions in amounts
not greater than the simplified
acquisition threshold, and contracts and
subcontracts for the acquisition of
commercial items, (including
commercially available off-the-shelf
items).
Because the emphasis of section 743
is to prohibit restrictions on the ability
of employees and subcontractors to
report waste, fraud, or abuse to
appropriate Government authorities, it
is not in the best interest of the Federal
Government to waive the applicability
of section 743 to contracts and
subcontracts in amounts not greater
than the simplified acquisition
threshold, or for the acquisition of
commercial items (including
commercially available off-the-shelf
items).
In making the initial determination to
prohibit restrictions on the ability of
employees and subcontractors to report
waste, fraud, or abuse to appropriate
Government authorities, it is not in the
best interest of the Federal Government
to waive the applicability of section 743
to contracts and subcontracts in
amounts not greater than the simplified
acquisition threshold, or for the
acquisition of commercial items
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
(including commercially available offthe-shelf items), since it would exclude
a significant number of acquisitions and
thereby further limit the number of
contractor and subcontractor employees
affected by section 743.
The FAR Council considered the
following factors: (1) The benefits of the
policy in furthering Administration
goals, (2) the extent to which the
benefits of the policy would be reduced
if an exemption is provided for
acquisitions in amounts not greater than
the simplified acquisition threshold, or
for the acquisition of commercial items
(including commercially available offthe-shelf items), and (3) the burden on
contractors if the policy is applied to
acquisitions in amounts not greater than
the simplified acquisition threshold, or
for the acquisition of commercial items
(including commercially available offthe-shelf items).
With respect of the first factor, the
Administration is committed to
implementing policy that ensures
reducing waste, fraud, or abuse in all
Federal acquisitions is achieved. This
proposed rule makes certain that there
are no restrictions that prevent
contractors and subcontractors from
reporting these types of situations to a
designated Government representative.
With respect to the second factor (the
impact of excluding acquisitions in
amounts not greater than the simplified
acquisition threshold, and contracts and
subcontracts for the acquisition of
commercial items, (including
commercially available off-the-shelf
items) on the overall benefits of the
underlying policy), the FAR Council
believes impact on these benefits may
inhibit contractor employees and
subcontractors subject to such internal
confidentiality agreements from
reporting of waste, fraud, or abuse to
appropriate Government authorities,
thus allowing the perpetuation of such
waste, fraud, or abuse.
With respect to the third factor, this
proposed rule imposes a minimal
burden on offerors and contractors,
requiring only that offerors represent by
submission of the offer that they do not
require certain internal confidentiality
agreements, and contractors must notify
employees that the prohibition and
restrictions of any internal
confidentiality agreements covered by
the clause are no longer in effect. This
proposed rule does not contain any
information collection requirements.
Public feedback is welcomed on the
analysis and preliminary determination
to cover acquisitions in amounts not
greater than the simplified acquisition
threshold, and contracts and
subcontracts for the acquisition of
E:\FR\FM\22JAP1.SGM
22JAP1
Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Proposed Rules
commercial items, (including
commercially available off-the-shelf
items). After receipt and analysis of
public comments, and in accordance
with 41 U.S.C. 1905, 1906, and 1907,
the FAR Council and the Administrator
for Federal Procurement Policy will
determine whether to incorporate in the
final rule this proposed applicability to
all solicitations and resultant contracts,
including contracts and subcontracts for
acquisitions in amounts not greater than
the simplified acquisition threshold,
and contracts and subcontracts for the
acquisition of commercial items,
(including commercially available offthe-shelf items).
III. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This is a
significant regulatory action and,
therefore, was subject to review under
section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated
September 30, 1993. This proposed rule
is not a major rule under 5 U.S.C. 804.
wgreen on DSK2VPTVN1PROD with PROPOSALS
IV. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. However, an Initial Regulatory
Flexibility Analysis (IRFA) has been
performed and is summarized as
follows:
This action is necessary to implement
section 743 of Division E, Title VII, of the
Consolidated and Further Continuing
Appropriations Act, 2015 (Pub. L. 113–235)
and successor provisions in subsequent
appropriations acts (and as extended in
continuing resolutions). Section 743
prohibits the use of funds appropriated or
otherwise made available by Division E or
any other Act for a contract, grant, or
cooperative agreement 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.
VerDate Sep<11>2014
14:28 Jan 21, 2016
Jkt 238001
The objective of the rule is to remove
restrictions on the ability of employees and
subcontractors to report waste, fraud, or
abuse to the appropriate Government
authorities. The legal basis for the rule is the
above cited statute.
This rule will apply to all small entities
that receive Government contracts awarded
using funds subject to the restriction of
section 743, or successor provisions in
subsequent appropriations acts with the same
prohibition (and as extended in continuing
resolutions). Based on FPDS data for Fiscal
Year 2014, this rule may affect up to 108,500
small entities per year (75,000 small entities
receiving new awards, 33,500 modifications).
However, it is doubtful that most small
entities have any such prohibited internal
confidentiality agreements with their
employees and subcontractors.
The rule has no significant economic
impact on small entities. DoD, GSA, and
NASA did not identify any significant
alternatives that would reduce the impact on
small entities and still meet the objectives of
the statute.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat. DoD, GSA, and
NASA invite comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2015–012), in
correspondence.
V. Paperwork Reduction Act
The proposed rule does not contain
any information collection requirements
that require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subject in 48 CFR Parts 3, 4, and
52
Government procurement.
Dated: January 11, 2016.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are
proposing to amend 48 CFR parts 3, 4,
and 52 as set forth below:
■ 1. The authority citation for 48 CFR
parts 3, 4, and 52 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
3765
PART 3—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
2. Amend section 3.900 by—
a. Removing from the introductory
paragraph ‘‘three different’’ and adding
‘‘various’’ in its place;
■ b. Redesignating paragraph (c) as
paragraph (d); and
■ c. Adding new paragraph (c) to read
as follows:
■
■
3.900
Scope of subpart.
*
*
*
*
*
(c) Section 743 of Division E, Title
VII, of the Consolidated and Further
Continuing Appropriations Act, 2015
(Pub. L. 113–235) and successor
provisions in subsequent appropriations
acts (and as extended in continuing
resolutions), implemented in 3.909,
applicable to all agencies.
*
*
*
*
*
■ 3. Add section 3.909 to Subpart 3.9—
Whistleblower Protections for
Contractor Employees to read as
follows:
3.909 Prohibition on contracting with
entities that require certain internal
confidentiality agreements.
3.909–1
Prohibition.
(a) The Government is prohibited
from using certain appropriated funds
for a contract 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.
See 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.)
(b) The prohibition in paragraph (a) of
this section 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.
3.909–2
Representation by the offeror.
(a) In order to be eligible for contract
award, an offeror must represent that it
does not require employees or
E:\FR\FM\22JAP1.SGM
22JAP1
3766
Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Proposed Rules
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. Any offeror
that cannot so represent is ineligible for
award of a contract.
(b) The contracting officer may rely on
an offeror’s representation unless the
contracting officer has reason to
question the representation.
3.909–3 Solicitation provision and
contract clause.
When using funding subject to the
prohibitions in 3.909–1(a) of this
subpart, the contracting officer shall—
(a)(1) Include the provision at 52.203–
XX, Prohibition on Contracting with
Entities that Require Certain Internal
Confidentiality Agreements—
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–
YY, Prohibition on Contracting with
Entities that Require Certain Internal
Confidentiality Agreements, 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 confidentiality
agreements.
PART 4—ADMINISTRATIVE MATTERS
4. Amend section 4.1202, as amended
in 80 FR 75905 (December 4, 2015),
effective February 26, 2016, by
redesignating paragraphs (a)(3) through
(30) as paragraphs (a)(4) through (31),
respectively; and adding new paragraph
(a)(3) to read as follows:
wgreen on DSK2VPTVN1PROD with PROPOSALS
■
4.1202 Solicitation provision and contract
clause.
(a) * * *
(3) 52.203–XX, Prohibition on
Contracting with Entities that Require
Certain Internal Confidentiality
Agreements—Representation.
*
*
*
*
*
VerDate Sep<11>2014
14:28 Jan 21, 2016
Jkt 238001
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
5. Add sections 52.203–XX and
52.203–YY to read as follows:
■
52.203–XX Prohibition on Contracting with
Entities that Require Certain Internal
Confidentiality Agreements—
Representation.
As prescribed in 3.909–3(a), insert the
following provision:
Prohibition on Contraction With Entities
That Require Certain Internal
Confidentiality Agreements—Representation
(Date)
(a) 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.
(b) The prohibition in paragraph (a) 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.
(c) Representation. By submission of its
offer, the Offeror represents that it does not
require employees or subcontractors of such
entity seeking to report waste, fraud, or abuse
to sign or comply with 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.
(End of provision)
52.203–YY Prohibition on Contracting with
Entities that Require Certain Internal
Confidentiality Agreements.
As prescribed in 3.909–3(b), insert the
following clause:
Prohibition on Contraction With Entities
That Require Certain Internal
Confidentiality Agreements (Date)
(a) The Contractor shall not require
employees or subcontractors of such entity
seeking to report waste, fraud, or abuse to
sign or comply with internal confidentiality
agreements or statements prohibiting or
otherwise restricting such employees or
subcontractors from lawfully reporting such
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
waste, fraud, or abuse to a designated
investigative or law enforcement
representative of a Federal department or
agency authorized to receive such
information.
(b) The Contractor shall notify employees
that the prohibitions and restrictions of any
internal confidentiality agreements covered
by this clause are no longer in effect.
(c) The prohibition in paragraph (a) 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.
(d) In accordance with section 743 of
Division E, Title VII, of the Consolidated and
Further Continuing Appropriations Act,
2015, (Pub. L. 113–235), use of funds
appropriated (or otherwise made available)
under that or any other Act may be
prohibited, if the Government determines
that the Contractor is not in compliance with
the provisions of this clause.
(e) The contractor shall include the
substance of this clause, including this
paragraph (e), in subcontracts under such
contracts.
(End of clause)
6. Amend section 52.204–8, as
amended in 80 FR 75906 (December 4,
2015), effective February 26, 2016, by—
■ a. Revising the date of the provision;
■ b. Redesignating paragraphs (c)(1)(iii)
through (xxii) as (c)(1)(iv) through
(xxiii), respectively; and
■ c. Adding new paragraph (c)(1)(iii).
The revised and added text reads as
follows:
■
52.204–8 Annual Representations and
Certifications.
*
*
*
*
*
Annual Representations and Certifications
(Date)
*
*
*
*
*
(c)(1) * * *
(iii) 52.203–XX, Prohibition on Contracting
with Entities that Require Certain Internal
Confidentiality Agreements—Representation.
This provision applies to all solicitations.
*
*
*
*
*
7. Amend section 52.212–3, as
amended at 80 FR 75907 (December 4,
2015), effective February 26, 2016, by—
■ a. Revising the date of the provision;
■ b. Removing from the introductory
paragraph and paragraph (b)(2) ‘‘through
(q)’’ and adding ‘‘through (r)’’ in its
place; and
■ c. Adding paragraph (r).
The revised and added text reads as
follows:
■
52.212–3 Offeror Representations and
Certifications—Commercial Items.
*
*
*
*
*
Offeror Representations and Certifications—
Commercial Items (Date)
*
E:\FR\FM\22JAP1.SGM
*
*
22JAP1
*
*
Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Proposed Rules
(r)(1) 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 appropriated (or otherwise made
available) funds 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.
(2) The prohibition in paragraph (r)(1) 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.
(3) Representation. By submission of its
offer, the Offeror represents that it does not
require employees or subcontractors of such
entity seeking to report waste, fraud, or abuse
to sign or comply with 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.
(End of provision)
8. Amend section 52.212–5, as
amended at 80 FR 75907 (December 4,
2015), effective February 26, 2016, by—
■ a. Revising the date of the clause;
■ b. Redesignating paragraphs (a)(1)
through (3) as paragraphs (a)(2) through
(4), respectively; and
■ c. Adding new paragraph (a)(1).
The revised and added text reads as
follows:
■
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
wgreen on DSK2VPTVN1PROD with PROPOSALS
*
*
*
*
*
Contract Terms and Conditions Required To
Implement Statutes or Executive Orders—
Commercial Items (Date)
(a) * * *
(1) 52.203–YY, Prohibition on Contracting
with Entities that Require Certain Internal
Confidentiality Agreements (DATE) (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)).
*
*
*
*
*
[FR Doc. 2016–01050 Filed 1–21–16; 8:45 am]
BILLING CODE 6820–EP–P
VerDate Sep<11>2014
14:28 Jan 21, 2016
Jkt 238001
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R1–ES–2015–0125;
4500030113]
RIN 1018–BB07
Endangered and Threatened Wildlife
and Plants; Endangered Status for 49
Species From the Hawaiian Islands
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period, and announcement of
public information meeting and hearing.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the comment period on our
September 30, 2015, proposed rule to
list 49 species from the Hawaiian
Islands, including the Hawaiian distinct
population segment of the band-rumped
storm-petrel (Oceanodroma castro), the
orangeblack Hawaiian damselfly
(Megalagrion xanthomelas), the
anchialine pool shrimp (Procaris
hawaiana), seven yellow-faced bees
(Hylaeus anthracinus, H. assimulans, H.
facilis, H. hilaris, H. kuakea, H.
longiceps, and H. mana), and 39
endemic plant species, as endangered
species under the Endangered Species
Act of 1973, as amended (Act). We now
reopen the public comment period on
the proposed rule for an additional 30
days and announce a public information
meeting and public hearing on the
proposed rule. We are reopening the
public comment period and holding a
public hearing to allow all interested
parties an additional opportunity to
comment on the proposed rule.
DATES: Written Comments: We will
consider comments received or
postmarked on or before February 22,
2016 or at the public hearing. Please
note comments submitted electronically
using the Federal eRulemaking Portal
(see ADDRESSES, below) must be
received by 11:59 p.m. Eastern Time on
the closing date. Any comments that we
receive after the closing date may not be
considered in the final decision on these
actions.
Public Information Meeting and
Public Hearing: We will hold a public
information meeting, followed by a
public hearing, on Tuesday, February 9,
2016. The public information meeting
will be held from 5:00 p.m. to 6:00 p.m.,
and the public hearing will be held from
6:00 p.m. to 8:00 p.m.
ADDRESSES: Document Availability: You
may obtain copies of the proposed rule
SUMMARY:
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
3767
at https://www.regulations.gov at Docket
No. FWS–R1–ES–2015–0125; from the
Pacific Islands Fish and Wildlife
Office’s Web site (https://www.fws.gov/
pacificislands); or by contacting the
Pacific Islands Fish and Wildlife Office
directly (see FOR FURTHER INFORMATION
CONTACT).
Comment Submission: You may
submit comments by one of the
following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R1–ES–2015–0125, which is
the docket number for this action. You
may submit a comment by clicking on
‘‘Comment Now!’’
(2) By hard copy: Submit comments
on the proposed listing rule by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R1–ES–2015–
0125; Division of Policy, Performance,
and Management Programs; U.S. Fish
and Wildlife Service, MS: BPHC; 5275
Leesburg Pike; Falls Church, VA 22041–
3803.
(3) At the public hearing: Interested
parties may provide oral or written
comments at the public hearing.
We request that you provide
comments only by the methods
described above. We will post all
comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
PUBLIC COMMENTS section, below, for
more information).
Public Information Meeting and
Public Hearing: The public information
meeting and public hearing will be held
at Aunty Sally Kaleohano’s Luau Hale,
799 Piilani Street, Hilo, HI 96720.
FOR FURTHER INFORMATION CONTACT:
Mary Abrams, Field Supervisor, Pacific
Islands Fish and Wildlife Office, 300
Ala Moana Boulevard, Honolulu, HI
96850; by telephone at 808–792–9400;
or by facsimile at 808–792–9581.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
On September 30, 2015, we published
in the Federal Register a proposed rule
to list 49 species from the Hawaiian
Islands as endangered species (80 FR
58820). We accepted public comments
on the proposed rule for 60 days, ending
November 30, 2015. During the
comment period, we received a request
to hold a public hearing and to extend
the public comment period on the
proposed rule. In order to ensure that
E:\FR\FM\22JAP1.SGM
22JAP1
]]>Agencies
[Federal Register Volume 81, Number 14 (Friday, January 22, 2016)]
[Proposed Rules]
[Pages 3763-3767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01050]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3, 4, and 52
[FAR Case 2015-012; Docket No. 2015-0012; Sequence No. 1]
RIN 9000-AN04
Federal Acquisition Regulation: Contractor Employee Internal
Confidentiality Agreements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement a section of the Consolidated
and Further Continuing Appropriations Act, 2015, that prohibits the use
of funds, appropriated or otherwise made available, for a contract with
an entity that requires employees or subcontractors to sign an internal
confidentiality agreement that restricts such employees or
subcontractors from lawfully reporting waste, fraud, or abuse to a
designated Government representative authorized to receive such
information.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addresses shown below on or before
March 22, 2016 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2015-012 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2015-012''. Select the link ``Comment Now'' that corresponds with FAR
Case 2015-012. Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2015-012'' on
your attached document(s).
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405-0001.
Instructions: Please submit comments only and cite ``FAR Case 2015-
012'' in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement
Analyst, at 202-219-0202 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2015-012.
SUPPLEMENTARY INFORMATION:
I. Background
This proposed rule revises the FAR to implement section 743 of
Division E,
[[Page 3764]]
Title VII, of the Consolidated and Further Continuing Appropriations
Act, 2015 (Pub. L. 113-235) and successor provisions in subsequent
appropriations acts (and as extended in continuing resolutions).
Section 743 prohibits the use of funds appropriated or otherwise made
available by Division E or any other Act for a contract, grant, or
cooperative agreement 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.
II. Discussion and Analysis
A. FAR Changes
This proposed rule implements section 743 by adding a new FAR
section 3.909, Prohibition on contracting with entities that require
certain internal confidentiality agreements. The proposed rule is
written to also cover future successor provisions in subsequent
appropriations acts and perpetuation of the requirement through
continuing resolutions. This allows more seamless implementation. If at
any point an appropriations act does not include a similar prohibition,
the FAR will be modified accordingly.
The proposed rule requires that each offeror, in order to be
eligible for award, represent, by submission of its offer, that it does
not require employees or subcontractors to sign or comply with such
internal confidentiality agreements. The representation is in a new
provision at FAR section 52.203-XX, Prohibition on Contracting with
Entities that Require Certain Internal Confidentiality Agreements--
Representation, which must be included in all solicitations, except
solicitations for personal services contracts with an individual, using
funds subject to the prohibition, except that this requirement is
implemented for commercial item solicitations by the part 12 provision
at FAR section 52.212-3, paragraph (q). Contracting officers shall not
insert this provision in solicitations for personal services contracts
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.
The new FAR clause 52.203-YY, Prohibition on Contracting with
Entities that Require Certain Internal Confidentiality Agreements,
notifies the contractor of the prohibition on use of funds for the
contract, if the contractor is in noncompliance with the requirements
of the clause. The clause also requires that contractors notify
employees that any such agreements in pre-existing confidentiality
agreements are no longer in effect. This notice could be accomplished
through normal business communication channels, such as email. This
clause must be included in all solicitations and resultant contracts,
except for personal services contracts with individuals.
Existing contracts must be modified to include the clause before
obligating Fiscal Year (FY) 2015 or subsequent FY funds that are
subject to the same prohibition on confidentiality agreements, except
for personal services contracts with individuals.
There are also conforming changes at FAR sections 3.900, 4.1202,
52.204-8, and 52.212-5.
B. Applicability
DoD, GSA, and NASA are proposing to apply this rulemaking to all
solicitations and resultant contracts that are funded with FY 2015
funds or subsequent FY funds that are subject to the same prohibition
on confidentiality agreements, including contracts and subcontracts for
acquisitions in amounts not greater than the simplified acquisition
threshold, and contracts and subcontracts for the acquisition of
commercial items, (including commercially available off-the-shelf
items).
Because the emphasis of section 743 is to prohibit restrictions on
the ability of employees and subcontractors to report waste, fraud, or
abuse to appropriate Government authorities, it is not in the best
interest of the Federal Government to waive the applicability of
section 743 to contracts and subcontracts in amounts not greater than
the simplified acquisition threshold, or for the acquisition of
commercial items (including commercially available off-the-shelf
items).
In making the initial determination to prohibit restrictions on the
ability of employees and subcontractors to report waste, fraud, or
abuse to appropriate Government authorities, it is not in the best
interest of the Federal Government to waive the applicability of
section 743 to contracts and subcontracts in amounts not greater than
the simplified acquisition threshold, or for the acquisition of
commercial items (including commercially available off-the-shelf
items), since it would exclude a significant number of acquisitions and
thereby further limit the number of contractor and subcontractor
employees affected by section 743.
The FAR Council considered the following factors: (1) The benefits
of the policy in furthering Administration goals, (2) the extent to
which the benefits of the policy would be reduced if an exemption is
provided for acquisitions in amounts not greater than the simplified
acquisition threshold, or for the acquisition of commercial items
(including commercially available off-the-shelf items), and (3) the
burden on contractors if the policy is applied to acquisitions in
amounts not greater than the simplified acquisition threshold, or for
the acquisition of commercial items (including commercially available
off-the-shelf items).
With respect of the first factor, the Administration is committed
to implementing policy that ensures reducing waste, fraud, or abuse in
all Federal acquisitions is achieved. This proposed rule makes certain
that there are no restrictions that prevent contractors and
subcontractors from reporting these types of situations to a designated
Government representative.
With respect to the second factor (the impact of excluding
acquisitions in amounts not greater than the simplified acquisition
threshold, and contracts and subcontracts for the acquisition of
commercial items, (including commercially available off-the-shelf
items) on the overall benefits of the underlying policy), the FAR
Council believes impact on these benefits may inhibit contractor
employees and subcontractors subject to such internal confidentiality
agreements from reporting of waste, fraud, or abuse to appropriate
Government authorities, thus allowing the perpetuation of such waste,
fraud, or abuse.
With respect to the third factor, this proposed rule imposes a
minimal burden on offerors and contractors, requiring only that
offerors represent by submission of the offer that they do not require
certain internal confidentiality agreements, and contractors must
notify employees that the prohibition and restrictions of any internal
confidentiality agreements covered by the clause are no longer in
effect. This proposed rule does not contain any information collection
requirements.
Public feedback is welcomed on the analysis and preliminary
determination to cover acquisitions in amounts not greater than the
simplified acquisition threshold, and contracts and subcontracts for
the acquisition of
[[Page 3765]]
commercial items, (including commercially available off-the-shelf
items). After receipt and analysis of public comments, and in
accordance with 41 U.S.C. 1905, 1906, and 1907, the FAR Council and the
Administrator for Federal Procurement Policy will determine whether to
incorporate in the final rule this proposed applicability to all
solicitations and resultant contracts, including contracts and
subcontracts for acquisitions in amounts not greater than the
simplified acquisition threshold, and contracts and subcontracts for
the acquisition of commercial items, (including commercially available
off-the-shelf items).
III. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This is a significant regulatory action and, therefore,
was subject to review under section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This proposed
rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
However, an Initial Regulatory Flexibility Analysis (IRFA) has been
performed and is summarized as follows:
This action is necessary to implement section 743 of Division E,
Title VII, of the Consolidated and Further Continuing Appropriations
Act, 2015 (Pub. L. 113-235) and successor provisions in subsequent
appropriations acts (and as extended in continuing resolutions).
Section 743 prohibits the use of funds appropriated or otherwise
made available by Division E or any other Act for a contract, grant,
or cooperative agreement 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.
The objective of the rule is to remove restrictions on the
ability of employees and subcontractors to report waste, fraud, or
abuse to the appropriate Government authorities. The legal basis for
the rule is the above cited statute.
This rule will apply to all small entities that receive
Government contracts awarded using funds subject to the restriction
of section 743, or successor provisions in subsequent appropriations
acts with the same prohibition (and as extended in continuing
resolutions). Based on FPDS data for Fiscal Year 2014, this rule may
affect up to 108,500 small entities per year (75,000 small entities
receiving new awards, 33,500 modifications). However, it is doubtful
that most small entities have any such prohibited internal
confidentiality agreements with their employees and subcontractors.
The rule has no significant economic impact on small entities.
DoD, GSA, and NASA did not identify any significant alternatives
that would reduce the impact on small entities and still meet the
objectives of the statute.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-012),
in correspondence.
V. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subject in 48 CFR Parts 3, 4, and 52
Government procurement.
Dated: January 11, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
3, 4, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 3, 4, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
2. Amend section 3.900 by--
0
a. Removing from the introductory paragraph ``three different'' and
adding ``various'' in its place;
0
b. Redesignating paragraph (c) as paragraph (d); and
0
c. Adding new paragraph (c) to read as follows:
3.900 Scope of subpart.
* * * * *
(c) Section 743 of Division E, Title VII, of the Consolidated and
Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and
successor provisions in subsequent appropriations acts (and as extended
in continuing resolutions), implemented in 3.909, applicable to all
agencies.
* * * * *
0
3. Add section 3.909 to Subpart 3.9--Whistleblower Protections for
Contractor Employees to read as follows:
3.909 Prohibition on contracting with entities that require certain
internal confidentiality agreements.
3.909-1 Prohibition.
(a) The Government is prohibited from using certain appropriated
funds for a contract 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. See 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.)
(b) The prohibition in paragraph (a) of this section 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.
3.909-2 Representation by the offeror.
(a) In order to be eligible for contract award, an offeror must
represent that it does not require employees or
[[Page 3766]]
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. Any offeror that cannot so
represent is ineligible for award of a contract.
(b) The contracting officer may rely on an offeror's representation
unless the contracting officer has reason to question the
representation.
3.909-3 Solicitation provision and contract clause.
When using funding subject to the prohibitions in 3.909-1(a) of
this subpart, the contracting officer shall--
(a)(1) Include the provision at 52.203-XX, Prohibition on
Contracting with Entities that Require Certain Internal Confidentiality
Agreements--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-YY, Prohibition on Contracting
with Entities that Require Certain Internal Confidentiality Agreements,
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
confidentiality agreements.
PART 4--ADMINISTRATIVE MATTERS
0
4. Amend section 4.1202, as amended in 80 FR 75905 (December 4, 2015),
effective February 26, 2016, by redesignating paragraphs (a)(3) through
(30) as paragraphs (a)(4) through (31), respectively; and adding new
paragraph (a)(3) to read as follows:
4.1202 Solicitation provision and contract clause.
(a) * * *
(3) 52.203-XX, Prohibition on Contracting with Entities that
Require Certain Internal Confidentiality Agreements--Representation.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Add sections 52.203-XX and 52.203-YY to read as follows:
52.203-XX Prohibition on Contracting with Entities that Require
Certain Internal Confidentiality Agreements--Representation.
As prescribed in 3.909-3(a), insert the following provision:
Prohibition on Contraction With Entities That Require Certain Internal
Confidentiality Agreements--Representation (Date)
(a) 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.
(b) The prohibition in paragraph (a) 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.
(c) Representation. By submission of its offer, the Offeror
represents that it does not require employees or subcontractors of
such entity seeking to report waste, fraud, or abuse to sign or
comply with 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.
(End of provision)
52.203-YY Prohibition on Contracting with Entities that Require
Certain Internal Confidentiality Agreements.
As prescribed in 3.909-3(b), insert the following clause:
Prohibition on Contraction With Entities That Require Certain Internal
Confidentiality Agreements (Date)
(a) The Contractor shall not require employees or subcontractors
of such entity seeking to report waste, fraud, or abuse to sign or
comply with 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.
(b) The Contractor shall notify employees that the prohibitions
and restrictions of any internal confidentiality agreements covered
by this clause are no longer in effect.
(c) The prohibition in paragraph (a) 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.
(d) In accordance with section 743 of Division E, Title VII, of
the Consolidated and Further Continuing Appropriations Act, 2015,
(Pub. L. 113-235), use of funds appropriated (or otherwise made
available) under that or any other Act may be prohibited, if the
Government determines that the Contractor is not in compliance with
the provisions of this clause.
(e) The contractor shall include the substance of this clause,
including this paragraph (e), in subcontracts under such contracts.
(End of clause)
0
6. Amend section 52.204-8, as amended in 80 FR 75906 (December 4,
2015), effective February 26, 2016, by--
0
a. Revising the date of the provision;
0
b. Redesignating paragraphs (c)(1)(iii) through (xxii) as (c)(1)(iv)
through (xxiii), respectively; and
0
c. Adding new paragraph (c)(1)(iii).
The revised and added text reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Date)
* * * * *
(c)(1) * * *
(iii) 52.203-XX, Prohibition on Contracting with Entities that
Require Certain Internal Confidentiality Agreements--Representation.
This provision applies to all solicitations.
* * * * *
0
7. Amend section 52.212-3, as amended at 80 FR 75907 (December 4,
2015), effective February 26, 2016, by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory paragraph and paragraph (b)(2)
``through (q)'' and adding ``through (r)'' in its place; and
0
c. Adding paragraph (r).
The revised and added text reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Date)
* * * * *
[[Page 3767]]
(r)(1) 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 appropriated (or
otherwise made available) funds 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.
(2) The prohibition in paragraph (r)(1) 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.
(3) Representation. By submission of its offer, the Offeror
represents that it does not require employees or subcontractors of
such entity seeking to report waste, fraud, or abuse to sign or
comply with 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.
(End of provision)
0
8. Amend section 52.212-5, as amended at 80 FR 75907 (December 4,
2015), effective February 26, 2016, by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a)(1) through (3) as paragraphs (a)(2)
through (4), respectively; and
0
c. Adding new paragraph (a)(1).
The revised and added text reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Date)
(a) * * *
(1) 52.203-YY, Prohibition on Contracting with Entities that
Require Certain Internal Confidentiality Agreements (DATE) (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)).
* * * * *
[FR Doc. 2016-01050 Filed 1-21-16; 8:45 am]
BILLING CODE 6820-EP-P
