FAR 3.104-5—Disqualification.
Plain-English Summary
FAR 3.104-5 explains what happens when a procurement integrity issue requires an agency official to be disqualified from further participation in a procurement. It covers three main topics: employment contacts made through agents or other intermediaries, the required written notice of disqualification, and the conditions for resuming participation after a disqualification period. It also ties the FAR procurement integrity rules to other legal authorities, including 18 U.S.C. 208 and 5 CFR part 2635, which may independently restrict or prohibit participation. In practice, this section is about protecting the fairness and appearance of fairness in federal source selections when an official has had employment-related contacts with an offeror. It gives agencies a process for documenting the disqualification, deciding when the official may return to the procurement, and ensuring that any return is consistent with ethics law and executive branch standards of conduct. For contractors, it signals that indirect recruiting or employment discussions can still create serious procurement integrity consequences even if the contact is not face-to-face or direct.
Key Rules
Indirect contacts count
Employment contacts between an agency employee and an offeror that occur through agents or other intermediaries may still trigger disqualification under FAR 3.104-3(c)(1). Using a third party does not avoid the procurement integrity rules, and the same conduct may also violate other statutes or regulations.
Written disqualification notice
An official who must disqualify himself or herself must promptly provide written notice to the contracting officer, the source selection authority if different, and the official’s immediate supervisor. The notice must identify the procurement, describe the official’s participation and the time period of that participation, and identify the offeror and its interest in the procurement.
Disqualification stays in effect
The official remains disqualified until the agency, in its sole and exclusive discretion, authorizes the official to resume participation under FAR 3.104-3(c)(1)(ii). There is no automatic return to the procurement once the contact issue is identified.
HCA controls reinstatement
After the conditions in FAR 3.104-3(c)(1)(ii)(A) or (B) are met, the head of the contracting activity, after consulting the agency ethics official, may allow the official to resume participation or may extend the disqualification period. The HCA must consider any facts that could create an appearance that the official was not completely impartial, and the reinstatement decision should be in writing.
Other ethics laws still apply
Even if the agency authorizes resumed participation, the official must still comply with 18 U.S.C. 208 and 5 CFR part 2635. The official may not be reinstated to participate in a matter affecting the financial interest of a person with whom the official is seeking employment unless a statutory waiver or an ethics authorization under subpart F of 5 CFR part 2635 is obtained.
Responsibilities
Agency Official
Must disqualify himself or herself when required by FAR 3.104-3(c)(1)(ii), promptly submit the required written notice, remain out of the procurement until authorized to return, and ensure any resumed participation complies with 18 U.S.C. 208 and 5 CFR part 2635.
Contracting Officer
Must receive the disqualification notice, manage the procurement accordingly, and ensure the disqualified official does not continue participating until proper authorization is granted.
Source Selection Authority
If different from the contracting officer, must be notified of the disqualification so source selection decisions and evaluation activities can be protected from improper participation.
Immediate Supervisor
Must be informed of the disqualification and help ensure the official is removed from further procurement participation until reinstatement is properly authorized.
Head of the Contracting Activity (HCA)
Must decide whether the disqualified official may resume participation after the required conditions are met, consult with the agency ethics official, consider appearance-of-impropriety factors, and determine whether an additional disqualification period is needed.
Agency Ethics Official
Must be consulted by the HCA before reinstatement decisions are made and help assess whether resumed participation is permissible under applicable ethics rules.
Offeror
Must recognize that employment contacts through intermediaries can still create procurement integrity issues and may trigger disqualification of agency personnel involved in the procurement.
Practical Implications
Indirect recruiting can still create a disqualification problem, so contractors should treat communications through recruiters, consultants, or other intermediaries as legally significant.
The written notice requirement creates a paper trail, which means agencies should document the procurement, the official’s role, the timing of the contact, and the offeror involved as soon as the issue arises.
A disqualified official cannot simply return when the employment discussion ends; reinstatement requires agency authorization and may be delayed if the appearance of bias remains a concern.
Even after FAR disqualification is lifted, ethics restrictions may still bar participation, especially where the matter affects the financial interests of a prospective employer.
A common pitfall is assuming that a contact is harmless because it was indirect or informal; under this section, the method of contact does not eliminate the risk of disqualification.
Official Regulatory Text
(a) Contacts through agents or other intermediaries . Employment contacts between the employee and the offeror, that are conducted through agents, or other intermediaries, may require disqualification under 3.104-3 (c)(1). These contacts may also require disqualification under other statutes and regulations. (See 3.104-2 (b)(2).) (b) Disqualification notice . In addition to submitting the contact report required by 3.104-3 (c)(1), an agency official who must disqualify himself or herself pursuant to 3.104-3 (c)(1)(ii) must promptly submit written notice of disqualification from further participation in the procurement to the contracting officer, the source selection authority if other than the contracting officer, and the agency official’s immediate supervisor. As a minimum, the notice must- (1) Identify the procurement; (2) Describe the nature of the agency official’s participation in the procurement and specify the approximate dates or time period of participation; and (3) Identify the offeror and describe its interest in the procurement. (c) Resumption of participation in a procurement. (1) The official must remain disqualified until such time as the agency, at its sole and exclusive discretion, authorizes the official to resume participation in the procurement in accordance with 3.104-3 (c)(1)(ii). (2) After the conditions of 3.104-3 (c)(1)(ii)(A) or (B) have been met, the head of the contracting activity (HCA), after consultation with the agency ethics official, may authorize the disqualified official to resume participation in the procurement, or may determine that an additional disqualification period is necessary to protect the integrity of the procurement process. In determining the disqualification period, the HCA must consider any factors that create an appearance that the disqualified official acted without complete impartiality in the procurement. The HCA’s reinstatement decision should be in writing. (3) Government officer or employee must also comply with the provisions of 18 U.S.C.208 and 5 CFR part 2635 regarding any resumed participation in a procurement matter. Government officer or employee may not be reinstated to participate in a procurement matter affecting the financial interest of someone with whom the individual is seeking employment, unless the individual receives- (i) A waiver pursuant to 18 U.S.C. 208(b)(1) or (b)(3); or (ii) An authorization in accordance with the requirements of subpart F of 5 CFR part 2635 .