IMPROPER BUSINESS PRACTICES
AND PERSONAL CONFLICTS OF INTEREST
1803.101 Standards of conduct.
1803.101-1 General.
(a) Federal statutes prohibit certain acts by Government personnel and special Government employees as defined in 18 U.S.C. 202 in relation to Government procurement. Among these statutes are (1) 18 U.S.C. 201, relating to bribes in order to secure a Government contract; (2) 18 U.S.C. 203, relating to compensation for services rendered in connection with any proceeding or claim in which the United States has an interest; (3) 18 U.S.C. 205, relating to acting as an agent or attorney for prosecuting any claim against the United States; (4) 18 U.S.C. 208, relating to transacting business as an officer or agent of the United States with firms of which the officer or agent, or a spouse, minor child, or partner, is an official or in which the officer or agent has a pecuniary interest; and (5) 18 U.S.C. 209, relating to compensation from non-Government sources in connection with Government services.
(b) The statutory prohibitions and their application to NASA personnel are discussed in NHB 1900.1, Standards of Conduct for NASA Employees, and NHB 1900.2, Standards of Conduct for NASA Special Government Employees. All NASA personnel involved in procurement actions shall become familiar with these statutory prohibitions. Any questions concerning them shall be referred to legal counsel. In addition to criminal penalties, the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218). (See Subpart 1803.70 for policy on contracting with former NASA employees.)
1803.101-2 Solicitation and acceptance of gratuities by Government personnel.
Any suspected violations shall be reported promptly to the installation's Office of Inspector General. (See Standards of Conduct for NASA Employees, NHB 1900.1.)
1803.104 Procurement integrity.
1803.104-4 Definitions.
"Designated agency ethics official" means for Headquarters, the General Counsel, and the Associate General Counsel for General Law, and for each center, the Chief Counsel.
1803.104-5 Disclosure, protection, and marking of proprietary and source selection information.
(a) The originator of information that may be source selection information shall consult with the contracting officer or the procurement officer, who shall determine whether the information is source selection information. NASA personnel responsible for preparing material described in FAR 3.104-4(k)(2)(i) through (ix) shall assure that the material is marked with the legend in FAR 3.104-5(c) at the time the material is prepared.
(b) Unless marked with the legend "SOURCE SELECTION INFORMATION -- SEE FAR 3.104," draft specifications, purchase descriptions, and statements of work are not considered source selection information when released during a market survey in order to determine the capabilities of potential competitive sources (see FAR Subpart 7.1). If marked with the legend, they may be released during a market survey as authorized by the contracting officer after removal of the legend. Draft documents, after having been released, must remain available to the public until the conclusion of the procurement.
(c) Government employees serving in the following positions are authorized access to proprietary or source selection information, but only to the extent necessary to perform their official duties:
(1) Personnel participating in source evaluation board (SEB) procedures under 1815.613-71 and 1870.303, App. I.
(2) Personnel assigned to the contracting office.
(3) The initiator of the procurement request (to include the official having principal technical cognizance over the requirement).
(4) Small business specialists.
(5) Personnel assigned to counsel's office.
(6) Personnel who evaluate an offeror's or bidder's technical or cost proposal.
(7) Personnel assigned to the Defense Contract Audit Agency and contract administration offices of the Department of Defense.
(8) Personnel responsible for the review and approval of documents in accordance with the Master Buy Plan Procedure in Subpart 1807.71.
(9) Other Government employees authorized by the contracting officer.
(10) Supervisors, at any level, of the personnel listed in paragraphs 1803.104-5(c)(1) through (9).
(11) Duly designated ombudsman.
(d) Release of proprietary or source selection information to other than Government employees may be authorized in accordance with FAR 15.413-2, 1815.413, and 1815.413-2.
(e) For contracts and contract modifications over $100,000, release of proprietary or source selection information to another Government activity shall be made by a letter citing the obligation under FAR 3.104-5(d) to maintain a list of persons or classes of persons authorized access to proprietary or source selection information and to provide the list to the contracting officer for the contract file.
1803.104-8 Knowing violations, duty to inquire, and ethics advisory opinions.
When a contracting officer has not been appointed, questions regarding whether information was proprietary or source selection information shall be referred to the procurement officer (see FAR 3.104-8(d) and (e)).
1803.104-9 Certification requirements.
The contracting officer shall obtain the following certification from any procurement official leaving the Government or transferring to another Government agency or any contractor employee serving as a procurement official who ceases performance of those duties during the conduct of a procurement expected to result in a contract or modification in excess of $100,000 (see FAR 3.104-7(a)).
I, [Name of procurement official], hereby certify that I understand the continuing obligation under Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. 423) not to disclose proprietary or source selection information relating to any ongoing procurement for which I have served as a procurement official.
Signature of procurement official and date
Identify applicable procurements (ones for which awards have not been made at the time of the Procurement Official's departure):
THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE, SECTION 1001.
1803.104-11 Processing violations or possible violations.
(a) The Procurement Officer is the individual designated to receive the contracting officer's report of violations in accordance with FAR 3.104-11.
(b) The head of the contracting activity (HCA) or designee shall refer all information describing an actual or possible violation to the installation's counsel and inspector general staff and to the Associate Administrator for Procurement (Attn: Code HS).
(c) When the HCA or designee determines under FAR 3.104-11(f) that award is justified by urgent and compelling circumstances or is otherwise in the interest of the Government, then that official shall submit a copy of the determination to the Associate Administrator for Procurement (Attn: Code HS) simultaneous with transmittal to the Administrator.
1803.104-12 Ethics program training requirements.
Individuals who will serve as procurement officials shall complete either Optional Form 333 or the following certification (see FAR 3.104-12(a)). The Privacy Act Notice is intended for use when either the executed Optional Form 333 or the executed certification will be filed in the employee's official personnel file and a social security number is needed. When an individual's social security number is being requested, Centers may use the attached Privacy Act Notice or an appropriate alternative Privacy Act Notice. The Privacy Act Notice may be omitted if a social security number is not being requested.
As a condition of serving as a procurement official, I, [ Name ], hereby certify that I am familiar with the provisions of subsections 27(b), (c), and (e) of the Office of Federal Procurement Policy Act (41 U.S.C. 423) as amended by section 814 of Public Law 101-189. I further certify that I will not engage in any conduct prohibited by such subsections and will report immediately to the contracting officer any information concerning a violation or possible violation of subsections 27 (a), (b),
(d), or (f) of the Act and applicable implementing regulations. A written explanation of subsections 27(a) through (f) has been made available to me. I understand that, should I leave the Government during the conduct of a procurement for which I have served as a procurement official, I have a continuing obligation under section 27 not to disclose proprietary or source selection information relating to the procurement and a requirement to so certify.
I understand that my execution of this certification does not make me a procurement official, nor will it be utilized to establish that I am a procurement official.
Signature and date
Name Social Security Number
In accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a), the following notice is provided:
AUTHORITY FOR COLLECTION OF INFORMATION; 41 U.S.C. 423 and Executive Order 9397. Your signature on the Procurement Integrity Certification for Procurement Officials and disclosure of your Social Security Number are voluntary,
but possible effects upon you if the certification is not signed and the Social
Security Number is not provided include the following:
Disqualification from particular work or duty assignments, or from the position for which you have applied or which you currently hold, or other appropriate action, or administrative delay in processing your certification.
Principal purpose for collection of this information:
To obtain and maintain a completed certification from any person designated as a "Procurement Official," as defined by 41 U.S.C. 423 and applicable procurement regulations.
Routine uses which may be made of the collected information:
Transfers to Federal, state, local, or foreign agencies when relevant to civil, criminal, administrative, or regulatory investigations or proceedings, including transfer to the Office of Government Ethics in connection with its program oversight responsibilities, or pursuant to a request by any appropriate Federal agency in connection with hiring, retention, or grievance of an employee or applicant, the issuance of a security clearance, the award or administration of a contract, the issuance of a license, grant, or other benefit, to committees of the Congress, or any other use specified by the Office of Personnel Management (OPM) in the system of records entitled "OPM/GOVT-1, General Personnel Records," as published in the Federal Register periodically by OPM.
1803.203 Reporting suspected violations of the Gratuities clause.
Any suspected violations of the clause at FAR 52.203-3, Gratuities, shall be reported to the installation's Office of Inspector General.
1803.303 Reporting suspected antitrust violations.
(a) When offers are received that, in the opinion of the contracting officer, indicate possible antitrust violations, the contracting officer shall report the circumstances to the General Counsel, NASA Headquarters, through the Office of Procurement (Code HS). Reports should not be submitted automatically but only when there is reason to believe the offers may not have been arrived at independently. These reports shall be submitted with conformed copies of bids or proposals, contract documents, and other supporting data, and shall set forth--
(1) The noncompetitive pattern or situation under consideration;
(2) Purchase experience in the same product or service for a reasonable period (one or more years) preceding
receipt of the offers under consideration, including unit and total contract prices and abstracts of bids;
(3) Community of financial interest among offerors, insofar as it is known;
(4) The extent, if any, to which specification requirements or patents restrict competition;
(5) Any information available about the pricing system employed in offers believed to reflect noncompetitive practices; and
(6) Any other pertinent information.
(b) Evidence of practices that, in the opinion of the General Counsel, NASA Headquarters, may violate the antitrust laws shall be forwarded to the Attorney General of the United States (see FAR 3.303).
(c) The contracting officer shall submit the identical bid report required by FAR 3.303(d) to NASA Headquarters, Office of Procurement (Code HS). The report shall include the reasons for suspecting collusion. Code HS shall forward a copy to the NASA Office of the Inspector General.
1803.502 Subcontractor kickbacks.
Suspected violations of the Anti-Kickback Act shall be reported in accordance with 1809.470.
1803.602 Exceptions.
The Administrator has delegated to the Associate Administrator for Procurement authority to authorize an exception to the policy in FAR 3.601 (see NMI 5101.8, Delegation of Authority--To Take Actions in Procurement and Related Matters (Associate Administrator for Procurement)). The Associate Administrator for Procurement hereby redelegates this authority to a head of contracting activity (HCA) for individual actions in the aggregate of $100,000 and below, inclusive of follow-on procurements, with concurrence by the HCA's Office of Chief Counsel. All requests above the HCA's authority shall be forwarded to the Associate Administrator for Procurement (Code HS) for approval.
1803.704 Policy.
The Associate Administrator for Procurement has been delegated authority to void or rescind contracts when there is a final conviction for violation of 18 U.S.C. 201-224 (Bribery, Graft and Conflicts of Interest) relating to them.
1803.705 Procedures.
(a) The official to whom reports shall be sent pursuant to FAR 3.705(a) is the Associate Administrator for Procurement; they shall be sent by the procurement officer.
(b) The Associate Administrator for Procurement is responsible for the actions, notices, and decisions required by FAR 3.705(c), (d), and (e).
1803.804 Policy.
(a) The Headquarters Contract Management Division (Code HK) is responsible for collecting and compiling contractors' disclosures and for preparing the report for submission to Congress.
(b) Procurement officers shall forward one copy of each Disclosure of Lobbying Activities Form furnished pursuant to FAR 3.803 to Code HK. The original shall be retained in the contract file. Forms shall be submitted quarterly by the 15th of the month following the end of the quarter.
1803.806 Processing suspected violations.
The Associate Administrator for Procurement (Code HK) is the designated official to whom suspected violations of the Act shall be referred.
1803.7001 Policy.
(a) It is NASA policy that contracts not normally be placed on a noncompetitive basis with any individual employed by NASA during the past two years or with any firm in which such an individual is a partner, principal officer, or majority shareholder or that is otherwise controlled or predominantly staffed by such individuals, unless it is determined to be in the best interest of the Government to do so (see 1806.303-270).
(b) Where it has been determined that it is appropriate to contract on a noncompetitive basis with an individual or firm described in paragraph (a) of this section, the approval authority for the justification for less than full and open competition shall be as specified in 180 6.304.
(c) If individuals or firms described in paragraph (a) of this section are involved in
a competitive procurement, precautions must be taken to ensure that they are not accorded preferential treatment. If one of them is the successful offeror, the contract file shall include a separate document fully explaining the safeguards used to ensure fair treatment of all offerors under the procurement, unless sealed bidding is used.
(d) Nothing in this subpart shall be construed as relieving former employees from obligations prescribed by law, such as 18 U.S.C. 207 (Disqualification of Former Officers and Employees).
(e) The policy in paragraph (a) of this section shall also be followed when reviewing subcontracts for the purpose of granting consent under NASA prime contracts (see FAR 44.202-2(a)(7)).
1803.7002 Solicitation provision.
The contracting officer shall insert the provision at 1852.203-70, Contracts Between NASA and Former NASA Employees, in all solicitations other than invitations for bids.