B.  Penalties and Compliance

Comment: One respondent stated that DoD must prescribe a clear set of penalties for any violation of the new policy and recommended civil and criminal fines, imprisonment, the withholding of contract award fees, contract termination, and/or suspension and debarment.

Response: DoD has no authority to write civil or criminal penalties into the DFARS. Contracting officers have considerable discretion to exercise the usual broad range of contractual remedies, e.g., withholding contract award fees, contract termination, or suspension and/or debarment. Accordingly, no change has been made to the DFARS in response to this comment.

Comment: One respondent expressed concern that there would be attempts to evade the new policy by transferring detainees to the custody of non-DoD agencies or foreign governments that are not governed by the DFARS limitations. The respondent also suggested that similar coverage at FAR 7.503(c)(8) should be considered.

Response: The acquisition regulations are written based on the presumption that Government employees act in good faith and in accordance with acquisition regulations and the law. Further, since the coverage at FAR 7.503(c)(8) lists "the direction and control of intelligence and counter-intelligence operations" as an example of an inherently governmental function, there would be no value added by reiterating this language in the DFARS.