# AFARS PART 5103

- 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]
- 5103.104-4 -- Disclosure, protection, and marking of contractor bid or proposal information and source selection information. [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.
- 5103.104-7 -- Violations or possible violations.

- Subpart 5103.2 -- Contractor Gratuities to Government Personnel

- 5103.201 -- Applicability.
- 5103.203 -- Reporting suspected violations of the Gratuities clause.
- 5103.204 -- Treatment of violations.

- Subpart 5103.3 -- Reports of Suspected Antitrust Violations

- 5101.390 -- Interagency coordination concerning business mergers and acquisitions.

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

- 5103.602 -- Exceptions.

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

- 5103.806 -- Processing suspected violations.

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).

(i) If the evaluation supports applicability of the Gratuities clause, the military commander will send the matter directly to the cognizant HCA with:

(A) The name and address of the contractor, 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, with 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 must send the matter to the appropriate Debarring Official (DFARS 209.403 and 5109.403).

(iv) The contracting officer must 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 must send to the Debarring Official information regarding any termination, set-off, or withholding action proposed or taken against the contractor.

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.

(ii) The contractor must 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 must 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 non-adversarial 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 must be made and will become part of the administrative 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 must be based on the preponderance of the evidence found in the administrative record. The Debarring Official must 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 must 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(AL&T) or designee. The decision of the ASA(AL&T) or designee must be based on the preponderance of the evidence found in the administrative record. The decision must be promptly provided to the contracting officer for appropriate action authorized under the Gratuities clause.

(x) The Judge Advocate General (TJAG) must provide administrative support to the Debarring Official. The TJAG Counsel must act as the Government’s representative in any proceeding pursuant to this subpart of the AFARS.

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.