AFARS -- Part 3
Improper Business Practices and Personal Conflicts of Interest
AAC 96-3
June 23, 1999
3.104 -- Procurement Integrity.
(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)
(i) Pursuant to 32 CFR 286h.3(b)(3)(ii), the contracting officer may release or disclose contractor bid and proposal information after contract award when the information to be released is not subject to a proper restrictive legend, or release is not otherwise restricted by law or regulation.
(ii) Pursuant to 32 CFR 286h.3(b)(4)(ii)(A), when neither the contracting officer nor the source selection authority has been designated or appointed, the chief of the contracting office is authorized access to source selection information and shall ensure that such information is properly restricted.
(iii) Pursuant to 32 CFR 286h.3(b)(4)(ii)(B)(1), the following individuals may make determinations that release of source selection information is in the public interest and would not jeopardize the integrity or successful completion of the procurement:
(A) Prior to issuance of the solicitation -- the contracting officer;
(B) After release of the solicitation, but prior to contract award -- the source selection authority for formal source selections (FAR Subpart 15.6); and
(C) For other than formal source selections -- the HCA.
(d)(1)
(A) The following persons and those persons, or classes of persons, they may designate are authorized access to proprietary and source selection information when access is necessary for the performance of their official duties:
(1) The Under Secretary of the Army.
(2) The ASA(RDA).
(3) The DASA(P).
(4) The General Counsel of the Army.
(5) The Auditor General of the Army.
(6) Commander, U.S. Army Materiel Command.
(7) Each HCA.
(8) Each Program Executive Officer.
(9) Each Source Selection Authority.
(B) The following classes of persons are authorized access to proprietary and source selection information when access is necessary for the performance of their official duties:
All persons in the --
(1) Office of the Secretary;
(2) Office of the Under Secretary;
(3) Office of each Assistant Secretary;
(4) Office of the General Counsel;
(5) Office of the Director of Small and Disadvantaged Business Utilization;
(6) Office of the Director of Information Systems for Command, Control, Communications and Computers;
(7) Office of the Chief of Staff;
(8) Offices of the Army General Staff; and
(9) Offices of the Army Special Staff.
(C) The contracting officer or, in the absence of the contracting officer, the person releasing proprietary or source selection information, shall ensure that every individual present or receiving source selection information during any assembly where proprietary or source selection information will be discussed completes a nondisclosure certificate.
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.
(1)
(i) This requirement is satisfied by including the contracting officer certification in the contract file.
(e) Recordkeeping requirements.
(2) The certifications shall be maintained as follows:
(A) The original shall be maintained in the office files for the person certifying and, at a minimum, copies shall be maintained in the contracting office(s) where the procurements on which the person acts as a procurement official will be accomplished and with the Financial Disclosure Report (SF 278 or SF 450, as appropriate) if the person certifying has filed such a report. Financial disclosure reports shall not be included in contract or source selection files.
(B) If the person certifying is reassigned or moves to another position, that person should bring the original to the new office and, if that person will act as a procurement official in the new office, then the original and copies shall be distributed, as a minimum, as directed in (A).
(C) If a person who will act as a procurement official arrives at the new position without a certificate, that person shall execute a new one.
(3) The ethics advisory opinions shall be maintained in the files of the Ethics Counselor issuing the opinions.
3.104-11 -- Processing Violations or Possible Violations.
(a)
(1) Forward information and documentation to the chief of the contracting office.
(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.
(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
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).
(i) If the evaluation supports applicability of the Gratuities clause, the military commander shall forward the matter promptly and directly to the cognizant HCA, ensuring that the following information is initially furnished:
(A) The name and address of the contractor, together with a statement as to form of organization, including names and addresses of principals.
(B) Complete contract data, including number, date, estimated day of completion of performance, general description of supplies or services procured, dollar amount, status of performance and payment, urgency of requirements and availability of the supplies or services from other sources.
(C) A summary of the facts concerning the suspected violation, including names and addresses, dates and references to documentary evidence available.
(D) The status of any ongoing investigation with an estimated date upon which the report of investigation will be submitted.
(ii) If required, submit a complete report of investigation as soon as practicable (exempt report, AR 335-15, paragraph 5-2). Be careful to preserve the admissibility of documentary evidence and exhibits, bearing in mind that action adverse to a contractor under the Gratuities clause is subject to review by a competent court. Copies or descriptions shall be used in this report where necessary or desirable to preserve the chain of custody.
(iii) The cognizant contracting activity shall forward the matter to the appropriate Debarring Official (9.403 and DFARS 209.403).
(iv) The contracting officer administering the contract(s) involved shall withhold from payments otherwise due the contractor a sum up to 10 times the estimated amount of the gratuities alleged to have been offered or given by the contractor, its agents, or other representatives, in violation of the Gratuities clause.
(v) Pending final decision on the matter, the cognizant contracting activity shall submit to the Debarring Official information regarding any termination, set-off, or withholding action proposed or taken against the contractor.
3.204 -- Treatment of Violations.
(a)
(i) The Debarring Official shall be the hearing officer. The Debarring Official is responsible for notifying a contractor of any suspected violation of the Gratuities clause. The notification shall describe the suspected violation and provide a copy of the record which formed the basis for the notification by the Debarring Official. If there is a reason to withhold from the contractor any portion of the record, the contractor shall be informed of what is withheld and the reasons for such withholding. The contractor shall have 30 working days from receipt of notice to submit written matters in opposition or request an in-person hearing on the matter.
(ii) The contractor shall be informed that it may oppose the charges set forth in the notice letter. The contractor may oppose the charges individually or through counsel. The contractor may submit documentary evidence, present witnesses at its own expense, and question any person the agency presents on the matter.
(iii) If the contractor does not request an in-person hearing, the Debarring Official shall make findings, conclusions and recommendations on the basis of the written record. If a contractor desires to present matters in person or through counsel, any written material should be delivered at least five working days in advance of the hearing.
(iv) In-person hearings will be informal and nonadversarial in nature. The Debarring Official and/or other agency representatives may ask questions of the contractor or its representative making the presentation.
(v) The Government's representative and the contractor or its representative will have an opportunity to present evidence relevant to the facts at issue.
(vi) Witnesses may testify and shall be sworn. Witnesses shall be reminded of the official nature of the proceeding and that they are subject to criminal prosecution for any falsified testimony. Witnesses are subject to cross-examination.
(vii) Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure govern the conduct of the in-person hearing. Hearsay evidence may be presented and shall be given appropriate weight.
(viii) A verbatim transcript of the hearing shall be made and will become part of the administration record. The contractor will be provided a copy of the transcript. The contractor will have seven working days from receipt of the transcript to provide final comments to the Debarring Official.
(ix) The Debarring Official's findings, conclusions, and recommendations shall be based on the preponderance of the evidence found in the administrative record. The Debarring Official shall make all findings and conclusions relevant to whether a violation of the Gratuities Clause occurred, whether any contractor's right to proceed should be terminated, whether an assessment of damages is appropriate, and, if so, what the amount of such an assessment should be. The Debarring Official shall submit, for final decision, the administrative record with findings, conclusions and recommendations as to the final disposition of the case to the deciding official, the ASA(RDA) or designee. The decision of the ASA(RDA) or designee shall be based on the preponderance of the evidence found in the administrative record. The decision shall be promptly provided to the contracting officer for appropriate action authorized under the Gratuities clause.
(x) The Judge Advocate General (TJAG) shall provide administrative support to the Debarring Official. The TJAG Counsel shall act as the Government's representative in any proceeding pursuant to this subpart of the AFARS.
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
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.)