FAR 3.909-3—Solicitation provision and contract clause.
Plain-English Summary
FAR 3.909-3 tells contracting officers exactly when to use the government’s required solicitation provision and contract clause implementing the ban on certain internal confidentiality agreements or statements. It covers two separate actions: inserting the representation provision at 52.203-18 into solicitations, and inserting the contract clause at 52.203-19 into solicitations and resulting contracts. It also addresses a narrow exception for personal services contracts performed entirely by an individual, where the provision and clause are not used. In addition, it requires agencies to modify existing non-personal-services contracts to add the clause before obligating FY 2015 or later funds that are subject to the prohibition. In practice, this section ensures contractors are on notice that they may not require employees or subcontractors to sign confidentiality terms that conflict with federal whistleblower protections, and it gives the government a contractual mechanism to enforce that policy before funds are spent.
Key Rules
Use the representation provision
When funding is subject to the prohibition in 3.909-1(a), the contracting officer must include FAR 52.203-18, Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements—Representation, in all solicitations. This provision is the offeror’s representation regarding prohibited internal confidentiality practices.
Personal services exception for provision
Do not include FAR 52.203-18 in solicitations for a personal services contract with an individual if the services will be performed entirely by that individual, rather than by employees of the contractor or subcontractor. The exception is narrow and depends on both the contract type and who actually performs the work.
Use the contract clause
The contracting officer must include FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements, in all solicitations and resulting contracts, except personal services contracts with individuals. This clause becomes a binding contract requirement on the awardee.
Personal services exception for clause
Do not insert FAR 52.203-19 into personal services contracts with individuals. The rule recognizes that the clause is aimed at contractor organizations and their workforce, not direct individual performance under a personal services arrangement.
Modify existing contracts before funding
For existing contracts other than personal services contracts with individuals, the contracting officer must modify the contract to add FAR 52.203-19 before obligating FY 2015 or later funds subject to the same prohibition. The clause must be in place before those funds are used.
Responsibilities
Contracting Officer
Determine whether the funding is subject to the prohibition in 3.909-1(a), include FAR 52.203-18 in applicable solicitations, include FAR 52.203-19 in applicable solicitations and awards, and modify existing covered contracts before obligating FY 2015 or later funds. The contracting officer must also apply the personal services exception correctly.
Offeror/Contractor
Provide the required representation in response to the solicitation provision and comply with the contract clause by not requiring employees or subcontractors to sign internal confidentiality agreements or statements that conflict with the prohibition.
Agency
Ensure procurement actions using covered funds incorporate the required provision and clause, and ensure existing contracts are updated before covered funds are obligated. The agency must support compliance with the government-wide prohibition.
Employees and Subcontractors
Follow lawful confidentiality requirements that are consistent with the clause, but they are protected from being required to sign internal confidentiality agreements or statements that would interfere with whistleblower rights or other protected disclosures.
Practical Implications
This section is a front-end compliance gate: if the solicitation or contract is missing the required provision or clause, the procurement may be defective and the contractor may not have been properly bound to the prohibition.
The personal services exception is easy to misapply. It only applies when the contract is with an individual and the work is performed entirely by that individual; if employees or subcontractors will perform any part of the work, the exception does not apply.
Contracting officers must remember that the clause is not just for new awards. Existing contracts must be modified before covered FY 2015 or later funds are obligated, which can affect funding timing and award administration.
A common pitfall is confusing ordinary confidentiality policies with prohibited internal confidentiality agreements. The rule targets agreements or statements that restrict protected disclosures, not legitimate protection of classified, proprietary, or sensitive information when properly drafted.
For contractors, the practical effect is that internal onboarding, HR, and nondisclosure templates may need review to ensure they do not contain language inconsistent with the FAR clause and related whistleblower protections.
Official Regulatory Text
When using funding subject to the prohibitions in 3.909-1 (a), the contracting officer shall- (a) (1) Include the provision at 52.203-18 , Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation, in all solicitations, except as provided in paragraph (a)(2) of this section; and (2) Do not insert the provision in solicitations for a personal services contract with an individual if the services are to be performed entirely by the individual, rather than by an employee of the contractor or a subcontractor. (b) (1) Include the clause at 52.203-19 , Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements, in all solicitations and resultant contracts, other than personal services contracts with individuals. (2) Modify existing contracts, other than personal services contracts with individuals, to include the clause before obligating FY 2015 or subsequent FY funds that are subject to the same prohibition on internal confidentiality agreements or statements.