FAR 3.909-2—Representation by the offeror.
Plain-English Summary
FAR 3.909-2 addresses the offeror’s required representation about internal confidentiality agreements and statements that could restrict employees or subcontractors from lawfully reporting waste, fraud, or abuse connected to performance of a Government contract. It explains the eligibility condition for award, the specific prohibition on requiring agreements that block protected disclosures to authorized Federal investigative or law enforcement officials, and the consequence of failing to make the required representation: ineligibility for contract award. The section also tells contracting officers how to treat the representation, allowing reliance on the offeror’s statement unless there is a reason to doubt it. In practice, this rule is meant to protect whistleblower-type disclosures, preserve access to fraud reporting channels such as an agency Office of Inspector General, and prevent contractors from using internal nondisclosure language to silence lawful reporting. For contractors, it means reviewing employment, subcontract, and confidentiality templates before bidding; for contracting officers, it means checking the representation and following up only when something suggests the statement may be inaccurate.
Key Rules
Required award representation
To be eligible for award, an offeror must represent that it will not require employees or subcontractors to sign internal confidentiality agreements or statements that prohibit or otherwise restrict lawful reporting of waste, fraud, or abuse related to a Government contract.
Protected reporting channels
The restriction applies to lawful reports made to designated investigative or law enforcement representatives of a Federal department or agency authorized to receive the information, such as an agency Office of Inspector General.
Failure bars award
If an offeror does not make the required representation, the offeror is ineligible for contract award. This is a mandatory eligibility condition, not a discretionary preference.
Contracting officer reliance
The contracting officer may rely on the offeror’s representation as submitted, unless the contracting officer has reason to question whether the representation is accurate.
Reason to question
If facts or circumstances suggest the offeror may use prohibited confidentiality language, the contracting officer should not blindly accept the representation and should investigate further before award.
Responsibilities
Offeror
Must make the required representation to be eligible for award and must ensure its internal confidentiality agreements and statements do not prohibit or unlawfully restrict employees or subcontractors from reporting waste, fraud, or abuse to authorized Federal investigative or law enforcement officials.
Contracting Officer
Must obtain and consider the offeror’s representation, may rely on it absent reason to question it, and must treat a non-representation as making the offeror ineligible for award.
Employees and Subcontractors
Are protected in their ability to lawfully report waste, fraud, or abuse related to Government contract performance to authorized Federal recipients of such information.
Agency / Investigative or Law Enforcement Representatives
Serve as authorized recipients of lawful reports, including offices such as the Inspector General, and provide the channel contemplated by the rule for protected disclosures.
Practical Implications
Contractors should review confidentiality, nondisclosure, and employment agreement templates before submitting an offer to make sure they do not contain prohibited restrictions.
A representation alone is not enough if the contracting officer has evidence suggesting the contractor’s internal policies or forms conflict with the rule; inconsistent documents can trigger follow-up and jeopardize award.
This rule is aimed at lawful reporting to authorized officials, so contractors should distinguish between legitimate protection of proprietary information and unlawful gag provisions that chill fraud reporting.
Subcontract flowdown and HR onboarding materials can create compliance risk if they include overbroad confidentiality language, even if the prime contractor’s intent was not to suppress reporting.
Contracting officers should watch for offeror certifications that appear routine but are contradicted by known company policies, prior protests, or other information in the file.
Official Regulatory Text
(a) In order to be eligible for contract award, an offeror must represent that it will not require its employees or subcontractors to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting waste, fraud, or abuse related to the performance of a Government contract to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information (e.g., agency Office of the Inspector General). Any offeror that does not so represent is ineligible for award of a contract. (b) The contracting officer may rely on an offeror's representation unless the contracting officer has reason to question the representation.