Representation Relating to Compensation of Former DoD Officials (DFARS Case 2010-D020)

Summary:

DCN 20111118 includes a final rule amending the DFARS to require offerors to represent whether former DoD officials who are employees of the offeror are in compliance with post-employment restrictions.

Supplementary Information:

I.  Background

DoD published a proposed rule at 76 FR 32846 on June 6, 2011, that proposed adding a requirement for offerors submitting proposals to DoD to represent whether former DoD officials employed by the offeror are in compliance with post-employment restrictions. Four respondents submitted public comments on the proposed rule.

A.  Post-Employment Statutory Restrictions and Regulatory Implementation

The principal statutory restrictions concerning post-Government employment for DoD officials after leaving Government employment are at 18 U.S.C. 207 and 41 U.S.C. 2104 (formerly 41 U.S.C. 423) and 5 CFR parts 2637 and 2641.

1.  FAR 3.104 implements 41 U.S.C 2104 and 18 U.S.C. 207.

2.  DFARS 203.104 implements the Procurement Integrity Act for DoD.

3.  DFARS 203.171-3 implements section 847 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008.

B.  General Accountability Office (GAO) Study GAO-08-485

The Congress included a provision in the NDAA for FY 2007 (section 851 of Pub. L. 109-364) requiring the GAO to report on recent employment of former DoD officials by major defense contractors. In May 2008, the GAO issued its report, entitled "Defense Contracting: Post-Government Employment of Former DoD Officials Needs Greater Transparency" (GAO-08-485). The GAO found that contractors significantly under-reported the employment of former DoD officials and concluded that defense contractors may employ a substantial number of former DoD officials on assignments related to their former positions. GAO further concluded that greater transparency is needed by DoD with respect to former senior and acquisition executives to ensure compliance with applicable post-employment restrictions. The GAO recommended that DoD ask potential offerors to certify that the former DoD officials employed by the offeror are in compliance with post-employment restrictions when contracts are being awarded and that contracting officers consider continuing certifications throughout the performance of the contract.

C.  DFARS Rule

This DFARS rule implements the recommendation of the GAO by adding a new representation for offerors to complete and provide as part of each proposal, including proposals for commercial items. DoD elected to employ a representation rather than a certification and have the representation submitted by offerors as part of the proposal process. The representation will be required only one time rather than continuously throughout contract performance. The provision will not be included in the annual representations and certifications.

The solicitation provision at DFARS 252.203-7005, entitled "Representation Relating to Compensation of Former DoD Officials," is a representation that all of the offeror's employees who are former DoD officials are in compliance with the post-employment restrictions at 18 U.S.C. 207, 41 U.S.C. 2101-2107, and 5 CFR parts 2637 and 2641, as well as FAR 3.104-2.

II.  Discussion and Analysis of the Public Comments

DoD reviewed the public comments received in response to the proposed rule in the formation of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is here.

Dates:

The Effective Date for this final rule is 18 November 2011.

Click here to read the entire Federal Register notice for this rule.