FAR 3.909—Prohibition on providing funds to an entity that requires certain internal confidentiality agreements or statements.

Prohibition.

FAR 3.909-1 implements a funding prohibition tied to appropriations law: the Government may not use fiscal year 2015 and later funds to award or fund a contract with an entity that requires its employees or subcontractors to sign internal confidentiality agreements or statements that block, limit, or chill lawful reporting of waste, fraud, or abuse to an authorized Federal investigative or law enforcement representative. The section is aimed at protecting whistleblower communications and ensuring that contractor internal policies do not override the public interest in reporting misconduct to the Government. It applies not only to direct employees but also to subcontractors, and it reaches both explicit bans and broader restrictions that would interfere with lawful reporting. The section also clarifies an important exception: it does not conflict with required nondisclosure agreements for classified information, including Standard Form 312, Form 4414, and similar agency-issued classified information nondisclosure forms. In practice, this means contracting officers must avoid funding awards to entities with prohibited confidentiality policies, and contractors must ensure their internal agreements and reporting policies preserve employees’ and subcontractors’ ability to report fraud, waste, or abuse to the proper Federal authorities.

Representation by the offeror.

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.

Solicitation provision and contract clause.

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.