[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2408-2410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-679]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 203, 209, and 252
RIN 0750-AG07
Defense Federal Acquisition Regulation Supplement; Senior DoD
Officials Seeking Employment With Defense Contractors (DFARS Case 2008-
D007)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Section 847 of
the National Defense Authorization Act for Fiscal Year 2008. Section
847 addresses requirements for senior DoD officials to obtain a post-
employment ethics opinion before accepting a position from a DoD
contractor within two years after leaving DoD service.
DATES: Effective date: January 15, 2009.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before March 16, 2009, to be
considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2008-D007,
using any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2008-D007 in the
subject line of the message.
[cir] Fax: 703-602-7887.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Angie
Sawyer, OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon,
Washington, DC 20301-3062.
[cir] Hand Delivery/Courier: Defense Acquisition Regulations
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Angie Sawyer, 703-602-8484.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Section 847
requires that a DoD official, who has participated personally and
substantially in a DoD acquisition exceeding $10 million or who has
held a key acquisition position, must obtain a written opinion from a
DoD ethics counselor regarding the activities that the official may
undertake on behalf of a DoD contractor within two years after leaving
DoD service. In addition, Section 847 prohibits a DoD contractor from
providing compensation to such a DoD official without first determining
that the official has received or appropriately requested a post-
employment ethics opinion.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does 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., because the
requirement to verify that a prospective employee has received or
requested the appropriate DoD ethics opinion should involve minimal
effort on the part of a contractor. Therefore, DoD has not performed an
initial regulatory flexibility analysis. DoD invites comments from
small businesses and other interested parties. DoD also will consider
comments from small entities concerning the affected DFARS subparts in
accordance with 5 U.S.C. 610. Such comments should be submitted
separately and should cite DFARS Case 2008-D007.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
This interim rule implements Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Section 847
requires that DoD officials that have participated personally and
substantially in a DoD acquisition exceeding $10 million, or that have
held certain key acquisition positions, must obtain a written opinion
from the appropriate DoD ethics
[[Page 2409]]
counselor before accepting compensation from a DoD contractor within
two years after leaving DoD service. In addition, Section 847 prohibits
a DoD contractor from providing compensation to such a DoD official
without first determining that the official has received or
appropriately requested a post-employment ethics opinion. Comments
received in response to this interim rule will be considered in the
formation of the final rule.
List of Subjects in 48 CFR Parts 203, 209, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR Parts 203, 209, and 252 are amended as follows:
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1. The authority citation for 48 CFR Parts 203, 209, and 252 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
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2. Section 203.104-4 is added to read as follows:
203.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
(d)(3) For purposes of FAR 3.104-4(d)(3) only, DoD follows the
notification procedures in FAR 27.404-5(a). However, FAR 27.404-5(a)(1)
does not apply to DoD.
203.104-5 [Removed]
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3. Section 203.104-5 is removed.
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4. Sections 203.171 through 203.171-4 are added to read as follows:
203.171 Senior DoD officials seeking employment with defense
contractors.
203.171-1 Scope.
This section implements Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Public Law 110-181).
203.171-2 Definition.
Covered DoD official as used in this section, is defined in the
clause at 252.203-7000, Requirements Relating to Compensation of Former
DoD Officials.
203.171-3 Policy.
(a) A DoD official covered by the requirements of Section 847 of
Public Law 110-181 (a ``covered DoD official'') who, within 2 years
after leaving DoD service, expects to receive compensation from a DoD
contractor, shall, prior to accepting such compensation, request a
written opinion from the appropriate DoD ethics counselor regarding the
applicability of post-employment restrictions to activities that the
official may undertake on behalf of a contractor.
(b) A DoD contractor may not knowingly provide compensation to a
covered DoD official within 2 years after the official leaves DoD
service unless the contractor first determines that the official has
received, or has requested at least 30 days prior to receiving
compensation from the contractor, the post-employment ethics opinion
described in paragraph (a) of this section.
(c) If a DoD contractor knowingly fails to comply with the
requirements of the clause at 252.203-7000, administrative and
contractual actions may be taken, including cancellation of a
procurement, rescission of a contract, or initiation of suspension or
debarment proceedings.
203.171-4 Contract clause.
Use the clause at 252.203-7000, Requirements Relating to
Compensation of Former DoD Officials, in all solicitations and
contracts.
PART 209--CONTRACTOR QUALIFICATIONS
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5. Section 209.406-2 is amended as follows:
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a. By redesignating paragraph (a) as paragraph (1); and
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b. By adding paragraph (2) to read as follows:
209.406-2 Causes for debarment.
* * * * *
(2) Any contractor that knowingly provides compensation to a former
DoD official in violation of Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) may face
suspension and debarment proceedings in accordance with 41 U.S.C.
423(e)(3)(A)(iii).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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6. Section 252.203-7000 is added to read as follows:
252.203-7000 Requirements Relating to Compensation of Former DoD
Officials.
As prescribed in 203.171-4, use the following clause:
REQUIREMENTS RELATING TO COMPENSATION OF FORMER DOD OFFICIALS (JAN
2009)
(a) Definition. Covered DoD official, as used in this clause,
means an individual that--
(1) Leaves or left DoD service on or after January 28, 2008; and
(2)(i) Participated personally and substantially in an
acquisition as defined in 41 U.S.C. 403(16) with a value in excess
of $10 million, and serves or served--
(A) In an Executive Schedule position under subchapter II of
chapter 53 of Title 5, United States Code;
(B) In a position in the Senior Executive Service under
subchapter VIII of chapter 53 of Title 5, United States Code; or
(C) In a general or flag officer position compensated at a rate
of pay for grade O-7 or above under section 201 of Title 37, United
States Code; or
(ii) Serves or served in DoD in one of the following positions:
Program manager, deputy program manager, procuring contracting
officer, administrative contracting officer, source selection
authority, member of the source selection evaluation board, or chief
of a financial or technical evaluation team for a contract in an
amount in excess of $10 million.
(b) The Contractor shall not knowingly provide compensation to a
covered DoD official within 2 years after the official leaves DoD
service, without first determining that the official has sought and
received, or has not received after 30 days of seeking, a written
opinion from the appropriate DoD ethics counselor regarding the
applicability of post-employment restrictions to the activities that
the official is expected to undertake on behalf of the Contractor.
(c) Failure by the Contractor to comply with paragraph (b) of
this clause may subject the Contractor to rescission of this
contract, suspension, or debarment in accordance with 41 U.S.C.
423(e)(3).
(End of clause)
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7. Section 252.212-7001 is amended as follows:
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a. By revising the clause date to read ``(JAN 2009)'';
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b. By redesignating paragraphs (b)(1) through (21) as paragraphs (b)(2)
through (22) respectively;
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c. By adding a new paragraph (b)(1);
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d. In newly designated paragraph (b)(5) by removing ``(JUN 2005)'' and
adding in its place ``(JAN 2009)''; and
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e. In newly designated paragraph (b)(13)(i) by removing ``(MAR 2007)''
and adding in its place ``(JAN 2009)''. The new paragraph (b)(1) reads
as follows:
252.212-7001 Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
* * * * *
(b) * * *
(1) ------252.203-7000, Requirements Relating to Compensation
[[Page 2410]]
of Former DoD Officials (JAN 2009) (Section 847 of Pub. L. 110-181).
* * * * *
[FR Doc. E9-679 Filed 1-14-09; 8:45 am]
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