AFARS – PART 5103
Improper Business Practices and Personal Conflicts of Interest
(Revised 18 November 2021)
The Army General Counsel is the Designated Agency Ethics Official (DAEO). The General Counsel has designated deputy DAEOs (DDAEOs) and has delegated to them the authority to act on his behalf concerning procurement integrity matters. The General Counsel has authorized DDAEOs to further delegate that authority to subordinate ethics counselors under their area of responsibility.
5103.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information.
(a) Personnel serving in the following positions are authorized access to contractor bid or proposal information and source selection information to the extent necessary to perform their official duties:
(i) Personnel assigned to the Office of the Assistant Secretary of the Army for Acquisition, Logistics and Technology (ASA(ALT)), Office of the Assistant Secretary of the Army for Financial Management & Comptroller (ASA(FMC)) and the Office of the Army General Counsel, who are performing Headquarters, Department of the Army level reviews or oversight.
(ii) Personnel participating in the evaluation of an offeror’s or bidder’s proposal or in the review and defense of protests.
(iii) Personnel in the responsible contracting office, along with supporting legal and small business office personnel.
(iv) The initiator of the procurement request, to include the official having principal technical cognizance over the requirement.
(v) Personnel assigned to the Defense Contract Audit Agency and contract administration offices of the DoD, who are supporting the procurement.
(vi) Personnel assigned to the DoD Office of Cost Assessment and Program Evaluation (CAPE) performing reviews or oversight.
(vii) Other personnel whom the Deputy Assistant Secretary of the Army (Procurement), the head of the contracting activity (HCA), contracting officer, or the source selection authority designates on an individual basis.
(viii) Supervisors, at any level, of the personnel listed in paragraphs (a)(i) through (vi) of this section.
(b) Follow the procedures at AFARS PGI 5103.104-4-1 Access to Contract Procurement Data and Documentation to provide access.
(c)(2) The head of contracting activity shall make the determination as described in FAR 3.104-5(c)(2). See Appendix GG for further delegation.
5103.104-6 Ethics advisory opinions regarding prohibitions on a former official’s acceptance of compensation from a contractor.
(c) The appropriate agency ethics official to provide an ethics advisory opinion is any properly appointed ethics official or ethics counselor within the servicing legal office for the last unit or organization to which the former official was assigned.
(a) If a contracting officer receives information of a violation or possible violation of the Restrictions on Obtaining and Disclosing Certain Information statute and –
(1) Concludes that there is no impact on the procurement, the contracting officer must forward the information to the chief of the contracting office who will follow the procedures set forth in FAR 3.104-7(a)(1); or
(2) Concludes that the violation or possible violation impacts the procurement, the contracting officer must promptly forward the information through the chief of the contracting office to the HCA.
(b) Upon receipt of information, the HCA, on a non-delegable basis, must take appropriate action after consulting with the contracting officer and legal counsel.
(f) The HCA must:
(i) Notify the ASA(ALT) (see 5101.290) when the HCA has determined that urgent and compelling circumstances justify an award, or award is otherwise in the interests of the Government; and
(ii) Obtain written verification that the ASA(ALT) has received the notification before authorizing award of the contract or execution of the contract modification.
(a) The appropriate agency ethics official to provide a written opinion regarding the applicability of post-employment restrictions to a covered DoD official is any properly appointed ethics official or ethics counselor within the servicing legal office for the last unit or organization to which the covered DoD official was assigned.
This subpart establishes Army procedures for addressing suspected violations of the Gratuities clause. These procedures are not intended to be an exclusive remedy that would preclude or limit otherwise appropriate criminal, civil, or administrative action.
(a)(i) Violations of the Gratuities clause include, but are not limited to, entertainment or gift(s) offered or given by a contractor or a contractor’s agent or representative to any officer, official, or employee of the Government to obtain an Army contract or favorable treatment in the awarding, amending, or making of determinations concerning the performance of an Army contract.
(ii) Provide reports of suspected violations of the Gratuities clause to the following Army officials (see FAR 3.203 and 52.203-3):
(A) The chief of the contracting office responsible for the contract with the potential infraction, unless the chief of the contracting office is suspected to be a party to the proffered gratuity, in which case refer to paragraph (B) of this section.
(B) The senior contracting official (SCO) having responsibility for the contract with the potential infraction.
(b) As soon as practicable, the chief of the contracting office, or SCO if necessary under paragraph (a)(ii)(B) of this section, shall:
(i) Report the suspected violation to the Army Criminal Investigation Division (CID) for appropriate action.
(ii) In coordination with the local procurement fraud advisor (PFA), report the suspected violation to the HCA, with a complete copy to the Chief of the Army Procurement Fraud Branch (see 5101.290(b)(5)). Include the following information:
(A) The name and address of the contractor, a statement as to the form of the 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 reported information concerning the suspected violation, with names and addresses, dates and references to documentary evidence available.
(iii) Contracting personnel will cooperate fully with Army CID personnel, the organization’s PFA and the Chief of the Army Procurement Fraud Branch and preserve any documentary evidence and exhibits.
(iv) If Army CID declines to initiate a criminal investigation, the HCA will coordinate with the organization’s PFA and the Chief of the Army Procurement Fraud Branch to decide whether the circumstances warrant the initiation of an administrative investigation of the suspected violation under Army Regulation 15-6. If the HCA decides not to initiate an investigation, the HCA will prepare a memorandum to document the basis for the decision.
(v) If a CID or administrative investigation is conducted, at its conclusion the HCA will coordinate with the organization’s PFA and the Chief of the Army Procurement Fraud Branch to determine whether further action is necessary.
(A) If the HCA decides that no further action is necessary, the HCA will prepare a memorandum to document the basis for the decision.
(B) If the HCA decides that further action is necessary, the HCA shall refer the matter, along with all supporting documentation, to the Army suspension and debarment official (SDO) through the Chief of the Army Procurement Fraud Branch. The Army SDO, or other senior official designated by The Judge Advocate General, shall proceed in accordance with FAR 3.204 and 5103.204.
(a) Pre-hearing procedures.
(i) The Army SDO, or other senior official designated by The Judge Advocate General, is the hearing officer for hearings under FAR 3.204 and is responsible for determining whether a violation of the Gratuities clause occurred. The Chief of the Army Procurement Fraud Branch will generally provide administrative support to the Army SDO to include providing counsel to act as the Government’s representative in any proceeding pursuant to this subpart. See Appendix GG.
(ii) The hearing officer is responsible for notifying the contractor of any suspected violation of the Gratuities clause. The notice to the contractor is sent by registered or certified mail, or another, similar commercial means that provides a signed delivery receipt. The notice will accomplish the following:
(A) Describe the suspected violation(s) in sufficient detail to reasonably apprise the contractor of the alleged violation(s).
(B) State the potential penalties for a violation of the Gratuities clause.
(C) Include a copy of the supporting record, with a general description of any redacted material, such as social security numbers, dates of birth, and financial account numbers, and the reasons for withholding.
(D) Inform the contractor that it may refute the allegations set forth in the notice. The contractor may refute the allegations and provide in person, through a representative at its own expense, or in writing any information the contractor wishes to have considered. The contractor may submit documentary evidence and arguments. If the contractor requests a hearing, at that hearing the contractor may confront any person the Government representative presents as a witness and may present witnesses at the contractor’s own expense. Inform the contractor that any hearings will be conducted in accordance with paragraph (b) of this section.
(E) State that the contractor has 30 working days from receipt of the notice to submit written matters concerning the allegations and to request a hearing. Any timely submissions by the contractor will become part of the evidentiary record.
(F) Advise the contractor that if a hearing is requested, a list of any witnesses the contractor wishes to present and a concise statement of each witness’s relevance to the hearing will be delivered to the Chief of the Army Procurement Fraud Branch no later than five working days in advance of the hearing date.
(b) Hearing and post-hearing procedures.
(i) The hearing officer will schedule the hearing as soon as practicable after receipt of the contractor’s request. The hearing officer may inform the contractor of the hearing date by email if the contractor so requests and provides an email address for that purpose when requesting a hearing.
(ii) Hearings shall be conducted at the hearing officer’s office.
(iii) Hearings shall be consistent with FAR 3.204(b), and they shall be non-adversarial in nature.
(iv) The hearing officer and the Government representative may ask questions of the contractor or its representatives making the presentation.
(v) The contractor or its representatives and the Government representatives shall have an opportunity to present information, including witness testimony, relevant to the facts at issue. The hearing officer may permit witnesses to appear by videoconference or other electronic means rather than in person. Witnesses will be sworn in and reminded of the official nature of the proceedings and that they are subject to criminal prosecution for any false testimony. Witnesses are subject to cross-examination. The hearing officer may ask questions of any witness.
(vi) Documents and testimony not ordinarily admissible under legal rules of evidence may be received at the discretion of the hearing officer and will be given appropriate weight. The hearing officer may exclude from the evidentiary record irrelevant or unduly repetitive information presented by the contractor or the Government representative.
(vii) A verbatim transcript of the hearing will be made and will become part of the evidentiary record. Additional documentary materials or comments the hearing officer permits the contractor or the Government representative to submit to the hearing officer at or following the hearing become part of the evidentiary record. The party submitting such additional materials or comments to the hearing officer shall simultaneously provide the same materials to the other party, and the other party shall have five working days from receipt to submit comments to the hearing officer on the post-hearing submission.
(viii)(A) The hearing officer shall make all findings of fact and conclusions of law relevant to whether a violation of the Gratuities clause occurred, including the dollar value of any gratuity. The hearing officer also makes all findings of fact, conclusions of law, and recommendations relevant to whether the contractor’s right to proceed under the contract should be terminated, and, if so, whether an assessment of exemplary damages is appropriate and in what amount. These findings will be based on a preponderance of the evidence contained in the evidentiary record. The decision of the hearing officer as to whether a violation of the Gratuities clause has occurred will be the Department of the Army’s final decision.
(B) If the contractor does not request a hearing in a timely manner or abandons its request, the hearing officer will make the findings of fact, conclusions of law, and recommendations on the basis of the written record.
(C) The hearing officer may permit the contractor and the Government representative to submit proposed findings of fact, conclusions of law, and recommendations by the date specified by the hearing officer. The hearing officer also may require the contractor and the Government representative to submit stipulated findings of fact and conclusions of law.
(ix) The hearing officer shall issue a written decision as soon as practicable after the conclusion of the hearing or the hearing officer’s receipt of all documentary submissions. If the hearing officer concludes that a violation of the Gratuities clause occurred, the decision shall include:
(A) The findings of fact and conclusions of law that the hearing officer relied upon and
(B) The findings of fact, conclusions of law, and recommendations relevant to whether the contractor’s right to proceed under the contract should be terminated, and, if so, whether an assessment of exemplary damages is appropriate and in what amount.
(x) If the hearing officer determines that a violation of the Gratuities clause occurred, the hearing officer will submit the written decision and evidentiary record to the responsible HCA.
(c)(i) As soon as practicable upon receipt of the written decision and evidentiary record the Assistant Secretary of the Army (Acquisition, Logistics and Technology) shall determine whether to terminate the contractor’s right to proceed under the contract, and, if so, whether to assess exemplary damages and in what amount. The decision will be the final decision of the Department of the Army with respect to those determinations. See Appendix GG for further delegation.
(ii) Officials of the responsible contracting activity will promptly provide written notice of the decision, together with the written decision of the hearing officer, to the contractor by registered or certified mail, or another, similar commercial means that provides a signed delivery receipt.
Only HCAs may authorize exceptions to the policy in FAR 3.601.
The authority to act for the agency head under this subpart is limited to a level no lower than an official who is appointed by and with the advice of the Senate, without power of redelegation. For the Department of the Army, the Assistant Secretary of the Army (Acquisition, Logistics and Technology), without power of further delegation, performs the functions under this subpart.
(c) The head of contracting activity, on a non-delegable basis, shall perform the penalty-related duties as described in FAR 3.704(c)(1) and (2).
(2) The Office of the Deputy Assistant Secretary of the Army (Procurement) will forward the DoD Inspector General’s initial notification and subsequent written report of findings to the cognizant head of the contracting activity.
The Assistant Secretary of the Army (Acquisition, Logistics and Technology) performs the functions specified in DFARS 203.906. See Appendix GG for further delegations.
(a) Insert the clause at FAR 52.203-13, Contractor Code of Business Ethics and Conduct, in full text.