In our earlier post, we discussed the provisions sprinkled throughout the Consolidated Appropriations Act of 2012 (Pub. L. 112-74) that prohibit certain agencies from using federal appropriated funds “to enter into a contract . . .[with] any corporation that was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government.” As we noted, this is not a government-wide prohibition, but rather Congress inexplicably included the exclusion provisions in only five of the nine Divisions comprising the Act, and established different standards in the various exclusion provisions.
Federal agencies are now attempting to implement this requirement. Indeed, contracting officers are particularly concerned as issuance of a contract in violation of the restriction could result in a violation of the Anti-Deficiency Act. The Federal Acquisition Regulatory Council opened a FAR Case and a proposed FAR provision is due to the Council on March 7, 2012. (FAR Case 2012-005). Given the different standards under the Act that apply to different agencies and the complexities underlying appropriations law, this will not be a simple undertaking.
In the interim, on January 23, 2012, the DoD’s Director of Defense Procurement and Acquisition Policy issued a DFARS class deviation effective immediately that imposes a new certification requirement on contractors in an effort to comply with the Appropriations restriction. The deviation established DFARS 252.209-7999 to be used whenever the agency is using FY 2012 funds and requires that all offerors on DoD contracts complete the following representation:
The Offeror represents that –
It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under Federal law within the proceeding 24 months.
DoD’s implementation still leaves some open questions. For example, DoD’s interim certification appears to assume the restriction only applies to “the offeror.” The statute, however, is ambiguous as to whether it is limited to the contractor or applies to all affiliated entities under the same corporate umbrella. Further, the DFARS deviation is required to be included on all solicitations, but both the statute and DoD’s class deviation are unclear as to whether this restriction applies to new task or delivery orders under existing contracts. Thus, even though DoD and other agencies are diligently working to clarify the Act’s requirements, many questions remain. It will be interesting to see how the FAR Council proposes to manage this unruly statutory scheme.