AFARS PART 5103

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AFARS -- Part 5103

Improper Business Practices and Personal Conflicts of Interest

Subpart 5103.1 -- Safeguards [AFARS Revision #008, dated February 3, 2004]

5103.104 -- Procurement integrity. [AFARS Revision #008, dated February 3, 2004]

5103.104-1 -- Definitions. [AFARS Revision #008, dated February 3, 2004]

The Department of the Army General Counsel (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 authority to provide consultation and advice under 5103.104-6(c). This authority may be further delegated to other ethics counselors. [AFARS Revision #008, dated February 3, 2004]

5103.104-4 -- Disclosure, protection, and marking of contractor bid or proposal information and source selection information. [AFARS Revision #008, dated February 3, 2004]

(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 Deputy Assistant Secretary of the Army (Policy and Procurement) (ODASA(P&P)) and the Office of the Army General Counsel, who are performing Headquarters, Department of the Army level 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 Department of Defense (DOD), who are supporting the procurement.

(vi) Other personnel designated by the Deputy Assistant Secretary of the Army (Policy and Procurement) (DASA(P&P)), the Head of the Contracting Activity (HCA), or the contracting officer or the source selection authority on an individual basis.

(vii) Supervisors, at any level, of the personnel listed in paragraphs 5103.104-4(a)(i) through (vi). [AFARS Revision #008, dated February 3, 2004]

5103.104-6 -- Ethics advisory opinions regarding prohibitions on a former official’s acceptance of compensation from a contractor.

(c) Ethics advisory opinions. The issuance of advice is reserved to an Ethics Counselor who has been delegated (or redelegated) such authority from the designated agency ethics official. [AFARS Revision #008, dated February 3, 2004]

5103.104-7 -- Violations or possible violations.

(a) (1) Send information and documentation to the chief of the contracting office.

(b) Upon receipt of information, the HCA, or designee, must take appropriate action after consulting with 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.

[AFARS Revision #008, dated February 3, 2004]

Subpart 5103.2 -- Contractor Gratuities to Government Personnel

5103.201 -- Applicability.

This subpart establishes procedures pursuant to the Gratuities clause in FAR 52.203-3. To the extent practicable, hearings should be held concurrently with any debarment proceedings initiated. See FAR Subpart 9.4.

5103.203 -- Reporting suspected violations of the Gratuities clause.

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

5103.204 -- Treatment of violations.

(a) (i) The Debarring Official will be the hearing officer and responsible for notifying a contractor of any suspected violation of the Gratuities clause. The notification must describe the suspected violation and provide a copy of the record that forms the basis for the notification by the Debarring Official. If there is a reason to withhold any portion of the record, the contractor must be informed of what is withheld and the reasons for such withholding. The contractor must have 30 working days from receipt of notice to submit written matters in opposition or request an in-person hearing on the matter.

Subpart 5103.3 -- Reports of Suspected Antitrust Violations

5101.390 -- Interagency coordination 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, & Logistics) or higher. Only the Secretary of Defense, the Deputy Secretary of Defense, and the Under Secretary of Defense (Acquisition, Technology & Logistics) (USD(AT&L)), 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, provided that such communication is coordinated in advance with the USD(AT&L) and the DoD General Counsel.

(e) Army personnel are authorized to respond directly to requests for information received from the office of the USD(AT&L) 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 HQDA, 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 (Acquisition, Logistics and Technology) (ASA(ALT)) or to the Army OGC.

[AFARS Revision #21, dated May 22, 2007]

Subpart 5103.6 -- Contracts with Government Employees or Organizations Owned or Controlled by Them

5103.602 -- Exceptions.

Only HCAs may authorize exceptions to the policy in FAR 3.601.

Subpart 5103.8 -- Limitation on the Payment of Funds to Influence Federal Transactions

5103.806 -- Processing suspected violations.

See AR 27-40, paragraph 8-4.

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