AFARS PART 3

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AFARS -- Part 3

Improper Business Practices and Personal Conflicts of Interest

AAC 96-3
June 23, 1999

Subpart 3.1 -- Safeguards

3.104 -- Procurement Integrity.

3.104-4 -- Definitions.

(a) The General Counsel of the Army (SAGC), as the Army's designated agency ethics official, has delegated to the senior ethics counselor of each major command and of each field operating agency of HQDA the authority to provide consultation and advice under 3.104-6(f) and 3.104-8(e). This authority may be further delegated to other ethics counselors.

3.104-5 -- Disclosure, Protection, and Marking of Proprietary and Source Selection Information.

(a)

3.104-6 -- Restrictions on Employment or Business Opportunity Discussions Between Competing Contractors and Procurement Officials.

(f) Evaluation of recusal proposal. The agency ethics official is the HCA's Ethics Counselor.

3.104-8 -- Knowing Violations, Duty to Inquire, and Ethics Advisory Opinions.

(e) Ethics advisory opinions. The agency ethics official is the Ethics Counselor for the command or organization in which the individual requesting ethics advice and counsel is employed or assigned, or from which the individual left Government service, except that the issuance of written advice is reserved to an Ethics Counselor who has been delegated (or redelegated) such authority from the Army's designated agency ethics official.

3.104-9 -- Certification Requirements.

(c) Contracting officer certifications.

(e) Recordkeeping requirements.

3.104-11 -- Processing Violations or Possible Violations.

(a)

(b) Upon receipt of information regarding actual or possible violations, the HCA or designee shall take appropriate action after consulting the contracting officer and legal counsel.

(f) Verify receipt of the notification by the Agency Head before authorizing award of the contract or execution of the contract modification.

3.104-12 -- Ethics Program Training Requirements.

(a) Commanders, directors and supervisors are responsible for ensuring that Army personnel do not participate personally and substantially in any of the functions set out in FAR 3.104-4(h)(1) with respect to a particular procurement without having received the minimum required training and completing the certificate. Consult the supporting contracting officer for assistance in identifying "procurement officials" or in training them. Ethics Counselors may assist in providing training or training materials, but certification is not an Ethics Counselor responsibility.

3.170-3 -- Penalties.

(b) The Designated Agency Ethics Official is the Ethics Counselor who provides ethics support to the contracting official assessing the liquidated damages.

Subpart 3.2 -- Contractor Gratuities to Government Personnel

3.201 -- Applicability.

This subpart establishes procedures under which the Army will exercise the powers conferred upon the Secretary of the Army by 10 U.S.C.2207 with respect to hearings, findings, termination of contracts, and imposition of exemplary damages arising from violations by contractors, their agents, or other representatives pursuant to the Gratuities clause in FAR 52.203-3. To the extent practicable, hearings conducted pursuant to this subpart should be held concurrently with any debarment proceedings initiated. See FAR Subpart 9.4.

3.203 -- Reporting Suspected Violations of the Gratuities Clause.

(a) When information is received indicating that action under the Gratuities clause may be appropriate, forward it for evaluation and appropriate action through channels to the military commander having jurisdiction over the contract (exempt report, AR 335-15, paragraph 5-2).

3.204 -- Treatment of Violations.

(a)

Subpart 3.3 -- Reports of Suspected Antitrust Violations

3.304 -- Interagency Coordinations Concerning Business Mergers and Acquisitions.

(a) The DoD position concerning the impact of a business merger or acquisition on national security (including the impact on the Department and on the defense industrial base) will be determined at the level of the Under Secretary of Defense (Acquisition & Technology) or higher. Only the Secretary of Defense, the Deputy Secretary of Defense, and the Under Secretary of Defense (Acquisition & Technology), or, on behalf of the foregoing, the Assistant secretary of Defense for Economic Security or the DoD General Counsel, are authorized to communicate the DoD position to the media or to the two federal agencies responsible for enforcement of the antitrust laws, i.e., the Department of justice and the Federal Trade Commission (the "antitrust agencies").

(b) No member of the Department of the Army may communicate, either to the antitrust agencies or to the media, any official position concerning the impact that a particular merger or acquisition will have or may have on national security, unless delegated specific authority for such purpose.

(c) In connection with litigation, only the DoD General Counsel or his designee will communicate the DoD position concerning the impact that a particular merger or acquisition will or may have on national security.

(d) It is army policy to cooperate with the antitrust agencies as they review a merger or acquisition involving an Army supplier. Department of the army personnel may provide factual information (such as past and anticipated future sources and quantities of supply for particular products) to the antitrust agencies, provide that such communication is coordinated in advance with the Assistant Secretary of Defense for Economic Security and the DoD General Counsel.

(e) Army personnel are authorized to respond directly to requests for information received from the office of the Assistant Secretary of Defense for Economic Security or from the DoD General Counsel's office. The Office of the Army General Counsel (Army OGC), telephone (703) 697-5120, will provide liaison with DoD on mergers and acquisitions when requested.

(f) Army support for, or opposition to, a proposed merger or acquisition will be determined at HQ DA, after appropriate coordination and approval in the Office of the secretary of Defense. Army personnel who have information or opinions relevant to development of the Army position should forward their input, in coordination with local counsel, to the Assistant Secretary of the Army (Research, Development and Acquisition) or to the Army OGC.

Subpart 3.6 -- Contracts with Government Employees or Organizations Owned or Controlled by Them

3.602 -- Exceptions.

HCAs may authorize exceptions to the policy in FAR 3.601. This authority may not be redelegated.

Subpart 3.8 -- Limitation on the Payment of Funds to Influence Federal Transactions

3.806 -- Processing Suspected Violations.

Report suspected violations to the Procurement Fraud Advisor. (See AR 27-40, paragraph 8-4.)

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