Rule2022-20965
Defense Federal Acquisition Regulation Supplement: Representation Relating to Compensation of Former DoD Officials (DFARS Case 2021-D030)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 29, 2022
Effective
September 29, 2022
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the requirement for offerors to represent whether former DoD officials employed by the offeror are in compliance with post-employment restrictions.
Full Text
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<title>Federal Register, Volume 87 Issue 188 (Thursday, September 29, 2022)</title>
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[Federal Register Volume 87, Number 188 (Thursday, September 29, 2022)]
[Rules and Regulations]
[Pages 59028-59030]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20965]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
[Docket DARS-2022-0022]
RIN 0750-AL52
Defense Federal Acquisition Regulation Supplement: Representation
Relating to Compensation of Former DoD Officials (DFARS Case 2021-D030)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to clarify the requirement
for offerors to represent whether former DoD officials employed by the
offeror are in compliance with post-employment restrictions.
DATES: Effective September 29, 2022.
FOR FURTHER INFORMATION CONTACT: Monica Wideman, telephone 703-717-
3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is issuing a final rule to implement a recommendation of the
Government Accountability Office (GAO). Section 851 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007 (Pub. L.
109-364) required GAO to report on recent employment of former DoD
officials by major defense contractors. In May 2008, GAO issued a
report titled ``Defense Contracting: Post-Government Employment of
Former DoD Officials Needs Greater Transparency (GAO-08-485).'' GAO
concluded that greater transparency was needed by DoD with respect to
former senior and acquisition executives (i.e., DoD ``covered
officials'') to ensure compliance with applicable post-employment
restrictions.
Subsequently, DoD issued a final rule in the Federal Register at 76
FR 71826, effective November 18, 2011, which implemented the GAO
recommendation by adding a new representation for offerors to complete
and provide as part of each proposal, including proposals for
commercial items. The representation is required only one time rather
than continuously throughout contract performance. The solicitation
provision at DFARS 252.203-7005, 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 all 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 Federal Acquisition
Regulation (FAR) 3.104-2.
A more recent GAO Report titled ``GAO-21-104311, Post-Government
Employment Restrictions-DoD Could Further Enhance Its Compliance
Efforts Related to Former Employees Working for Defense Contractors,''
dated September 9, 2021, states that in 2011 DoD modified its
acquisition regulations to require that contractors, when submitting
proposals in response to DoD solicitations, represent their employees'
compliance with several post-Government employment restrictions.
Although GAO recognized that DoD has provided guidance on section 1045
of the NDAA for FY 2018 (Pub. L. 115-91), to include DoD Instruction
1000.32, ``Prohibition of Lobbying Activity by Former DoD Senior
Officials,'' the GAO report pointed out that DoD has not added section
1045 of the NDAA for FY 2018 to the list of post-Government
[[Page 59029]]
employment ethics provisions currently enumerated within the
solicitation provision at DFARS 252.203-7005. Specifically, since
section 1045, which restricts lobbying activities with respect to DoD
matters by former DoD senior officials, was enacted after the addition
of DFARS 252.203-7005 in 2011, it was not originally included in the
list of enumerated post-Government employment provisions. Therefore,
GAO recommended that DoD assess whether to amend the DFARS to add
section 1045 to the required offeror representation concerning
compliance with post-Government employment restrictions.
This final rule revises DFARS provision 252.203-7005,
Representation Relating to Compensation of Former DoD Officials, to add
the statutory reference to section 1045 of the NDAA for FY 2018 to the
existing list of post-Government employment restrictions to ensure
that, to the extent the individuals are ``covered DoD officials'' under
the definition at DFARS 252.203-7000, the lobbying activities
restrictions contained in section 1045 are included among the
enumerated post-Government employment ethics provisions. Additionally,
the provision language was revised to clarify that former personnel are
required to comply with all applicable post-Government employment
restrictions, not just those enumerated in the solicitation provision
at DFARS 252.203-7005.
An obsolete reference to 5 CFR 2637 is removed from the provision.
Part 2637 was removed from title 5 of the CFR in a final rule published
in the Federal Register at 73 FR 36168 (June 25, 2008).
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707, Publication of Proposed Regulations. Subsection (a)(1) of the
statute requires that a procurement policy, regulation, procedure, or
form (including an amendment or modification thereof) must be published
for public comment if it relates to the expenditure of appropriated
funds, and has either a significant effect beyond the internal
operating procedures of the agency issuing the policy, regulation,
procedure, or form, or has a significant cost or administrative impact
on contractors or offerors.
Under the existing DFARS requirement, offerors must represent that
their employees subject to section 847 of the NDAA for FY 2008 are in
compliance with applicable post-Government employment restrictions,
which are outlined in the written post-Government employment opinion
letter issued pursuant to section 847. Following the enactment of
section 1045 of the NDAA for FY 2018, DoD included the requirement in
DoD Instruction 1000.32, Prohibition of Lobbying Activity by Former DoD
Senior Officials, that post-Government employment opinions address
section 1045, where applicable. Therefore, this final rule is not
required to be published for public comment, because it does not
constitute a significant DFARS revision within the meaning of FAR
1.501-1 and does not have a significant cost or administrative impact
on contractors or offerors (see Section I of this preamble).
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This rule amends the solicitation provision at DFARS 252.203-7005.
However, this rule does not impose any new requirements on contracts at
or below the SAT or for commercial services or commercial products,
including COTS items. The provision will continue to apply to
acquisitions at or below the SAT and to acquisitions of commercial
services and commercial products, including COTS items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
this final rule does not constitute a significant DFARS revision within
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require
publication for public comment.
VII. Paperwork Reduction Act
This 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 Subjects in 48 CFR Part 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR part 252 is amended as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Amend section 252.203-7005 by--
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a. Revising the provision date;
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b. Revising paragraph (b); and
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c. Adding ``(End of provision)'' at the end of the provision.
The addition and revisions read as follows:
252.203-7000 Representation Relating to Compensation of Former DoD
Officials.
* * * * *
Representation Relating to Compensation of Former DOD Officials (Sep
2022)
* * * * *
(b) By submission of this offer, the Offeror represents, to the
best of its knowledge and belief, that all covered DoD officials
employed by or otherwise receiving compensation from the Offeror,
and who are expected to undertake activities on behalf of the
Offeror for any resulting contract, are presently in compliance with
all applicable post-employment restrictions, including those
contained in 18 U.S.C. 207, 41 U.S.C. 2101-2107, 5 CFR part 2641,
section 1045 of the National Defense Authorization Act for Fiscal
Year 2018 (Pub. L. 115-91), and Federal Acquisition Regulation
3.104-2.
[[Page 59030]]
(End of provision)
[FR Doc. 2022-20965 Filed 9-28-22; 8:45 am]
BILLING CODE 5001-06-P
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</html>Indexed from Federal Register on September 29, 2022.
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