DATE: March 30, 2000

FROM: Barry McVay, CPCM

SUBJECT: Federal Acquisition Regulation (FAR); Procurement Integrity Rewrite

SOURCE: Federal Register, March 29, 2000, Vol. 65, No. 61, page 16757

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: It is proposed that FAR 3.104, Procurement Integrity, be rewritten in plain language as required by the June 1, 1998, presidential memorandum "Plain Language in Government Writing."

DATES: Submit comments on or before May 30, 2000.

ADDRESSES: Interested parties should submit written comments to the General Services Administration, FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405. Cite FAR case 1998-024 in all correspondence related to the proposed rule. Address e-mail comments to farcase.1998-024@gsa.gov.

FOR FURTHER INFORMATION CONTACT: Paul Linfield, Procurement Analyst, 202-501-1757.

SUPPLEMENTAL INFORMATION: FAR 3.104, Procurement Integrity, implements prohibitions, restrictions, and other requirements of the Procurement Integrity Act that are placed on certain agency officials who participate in federal procurements. This proposed rule seeks to improve FAR 3.104 by reorganizing and simplifying its text.

However, other statutes and regulations also govern the conduct of government employees. In particular, Office of Government Ethics (OGE) regulations provide guidance on other prohibitions that also apply to government employees who participate in procurement activities during the conduct of a federal procurement. While FAR 3.104 does not implement these other statutes and regulations, it is very important for federal employees to be aware of these other statutes and regulations because an employee can be subject to criminal and administrative penalties for engaging in prohibited conduct.

Therefore, the proposed rule also revises FAR 3.104 to alert agency officials that they may be precluded from participating in a procurement by these other statutes and regulations even if they are not "participating personally and substantially" in the procurement as defined in FAR 3.104. In general, the prohibitions in OGE's regulations involve accepting bribes or gifts, seeking employment, and other similar activities (particularly Title 5 of the Code of Federal Regulations (CFR), Section 2635.604, Disqualification While Seeking Employment, and Section 2635.606, Disqualification Based on an Arrangement Concerning Prospective Employment or Otherwise After Negotiations). In certain circumstances, an employee will be considered by the OGE regulations to be participating personally and substantially in a procurement even though, according to the Procurement Integrity Act and FAR 3.104, he or she is not.

Besides simplifying and clarifying the language of FAR 3.104, the following are the major changes being proposed:

In addition, references to the "source selection information" definition in FAR 2.101 are added in several places (such as paragraph (e) of FAR 4.802, Contract Files, and paragraph (a)(5) of FAR 15.404-2, Information to Support Proposal Analysis), and several cross-references to the redesignated subsections of FAR 3.104 are changed as well.

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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