FAR 52.209-13—Violation of Arms Control Treaties or Agreements-Certification.
Plain-English Summary
FAR 52.209-13 is a solicitation provision that requires certain offerors to certify whether they, or any entity they own or control, have engaged in activity that contributed to or was a significant factor in a U.S. determination that a foreign country is violating, or not adhering to, its arms control, nonproliferation, or disarmament obligations or commitments. It applies only when the acquisition is above the simplified acquisition threshold and is not for commercial products or commercial services. The provision also explains how offerors are supposed to review the State Department’s annual unclassified report, including how to interpret country findings, what counts as a determination of violation, and what statements do not count as such a determination. It gives offerors a path to provide separate information instead of a clean certification when the President has waived application or determined the entity has ceased the relevant activities. The provision further allows offerors to ask questions of the Department of State about the report and warns that a false certification is a material misrepresentation that can lead to termination, suspension, debarment, and other remedies. In practice, this provision is a compliance-screening tool that forces offerors to examine their own conduct and the conduct of entities they own or control against U.S. arms control and nonproliferation determinations before submitting an offer.
Key Rules
Limited applicability
This provision does not apply to acquisitions at or below the simplified acquisition threshold or to acquisitions of commercial products and commercial services. Contracting personnel should only include it when the solicitation falls within its prescribed scope.
Certification or alternate submission
The offeror must either certify that neither it nor any entity it owns or controls engaged in disqualifying activity, or provide separate information with the offer under the waiver/cessation path described in the provision. An offer should not be submitted without one of these two responses.
Review the State report
Offerors must use the most recent unclassified annual report to Congress under 22 U.S.C. 2593a to identify relevant foreign countries and determine whether the offeror or controlled entities may have engaged in related activity. The provision gives a step-by-step method for reviewing the report and associated country findings.
Violation finding standard
An explicit certification of non-compliance in the annual report counts as a determination of violation. By contrast, statements that the United States is unable to certify compliance, unable to conclude compliance, or has compliance concerns do not by themselves equal a violation determination.
Assess contribution or significance
If a relevant country is identified, the offeror must determine whether its own activity, or that of an owned or controlled entity, contributed to or was a significant factor in the U.S. determination. The review must consider the finding, the underlying conduct, the compliance analysis, and any efforts to resolve the concern.
Waiver or cessation exception
Instead of a clean certification, the offeror may submit information showing that the President waived application under 22 U.S.C. 2593e(d) or (e), or determined under 22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which measures were imposed.
False certification consequences
The certification is a material representation of fact. If the Government later determines the offeror knowingly submitted a false certification, the Government may pursue remedies including suspension, debarment, and termination of any resulting contract.
Responsibilities
Contracting Officer
Determine whether the provision applies to the acquisition, include it in the solicitation when required, evaluate whether the offer contains the required certification or alternate information, and take appropriate action if a false certification is later discovered.
Offeror
Review the State Department’s annual unclassified report, assess whether it or any entity it owns or controls engaged in relevant activity, choose the correct certification or alternate submission, and ensure the offer is not submitted without the required response.
Entities owned or controlled by the Offeror
Their activities must be considered as part of the offeror’s certification. If any such entity engaged in relevant activity, the offeror must account for that in its certification or alternate submission.
Department of State
Publish the annual unclassified report, provide the country findings and compliance determinations used for certification review, and respond to offeror email inquiries to the extent feasible, generally within 3 business days.
President of the United States
May waive application under 22 U.S.C. 2593e(d) or (e), or determine under 22 U.S.C. 2593e(g)(2) that an entity has ceased the activities for which measures were imposed.
Practical Implications
Offerors need a real compliance review, not a box-checking exercise; they should trace ownership and control relationships and look beyond the prime entity itself.
The annual State Department report is the key source document, so teams should review the table of contents, country sections, and narrative findings carefully before certifying.
Not every compliance concern in the report is a violation determination; misunderstanding that distinction can lead to unnecessary disclosures or an incorrect certification.
If there is any doubt, the offeror may need to provide separate information rather than a clean certification, especially where a waiver or cessation determination exists.
A knowingly false certification can have serious downstream consequences, including termination of the contract and suspension or debarment, so internal legal and compliance review is important before submission.
Official Regulatory Text
As prescribed in 9.109-5 , insert the following provision: Violation of Arms Control Treaties or Agreements-Certification (Nov 2021) (a) This provision does not apply to acquisitions at or below the simplified acquisition threshold or to acquisitions of commercial products and commercial services as defined in Federal Acquisition Regulation 2.101 . (b) Certification . [ Offeror shall check either (1) or (2). ] (1) The Offeror certifies that– (i) It does not engage and has not engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act ( 22 U.S.C. 2593a ). The report is available at https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/ ; and (ii) No entity owned or controlled by the Offeror has engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act ( 22 U.S.C. 2593a ). The report is available at https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-affairs/bureau-of-arms-control-verification-and-compliance/ ; or (2) The Offeror is providing separate information with its offer in accordance with paragraph (d)(2) of this provision. (c) Procedures for reviewing the annual unclassified report (see paragraph (b)(1) of this provision). For clarity, references to the report in this section refer to the entirety of the annual unclassified report, including any separate reports that are incorporated by reference into the annual unclassified report. (1) Check the table of contents of the annual unclassified report and the country section headings of the reports incorporated by reference to identify the foreign countries listed there. Determine whether the Offeror or any person owned or controlled by the Offeror may have engaged in any activity related to one or more of such foreign countries. (2) If there may have been such activity, review all findings in the report associated with those foreign countries to determine whether or not each such foreign country was determined to be in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or to be not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. For clarity, in the annual report an explicit certification of non-compliance is equivalent to a determination of violation. However, the following statements in the annual report are not equivalent to a determination of violation: (i) An inability to certify compliance. (ii) An inability to conclude compliance. (iii) A statement about compliance concerns. (3) If so, determine whether the Offeror or any person owned or controlled by the Offeror has engaged in any activity that contributed to or is a significant factor in the determination in the report that one or more of these foreign countries is in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. Review the narrative for any such findings reflecting a determination of violation or non-adherence related to those foreign countries in the report, including the finding itself, and to the extent necessary, the conduct giving rise to the compliance or adherence concerns, the analysis of compliance or adherence concerns, and efforts to resolve compliance or adherence concerns. (4) The Offeror may submit any questions with regard to this report by email to NDAA1290Cert@state.gov . To the extent feasible, the Department of State will respond to such email inquiries within 3 business days. (d) Do not submit an offer unless— (1) A certification is provided in paragraph (b)(1) of this provision and submitted with the offer; or (2) In accordance with paragraph (b)(2) of this provision, the Offeror provides with its offer information that the President of the United States has (i) Waived application under 22 U.S.C. 2593e (d) or (e); or (ii) Determined under 22 U.S.C. 2593e (g)(2) that the entity has ceased all activities for which measures were imposed under 22 U.S.C. 2593e (b). (e) Remedies . The certification in paragraph (b)(1) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly submitted a false certification, in addition to other remedies available to the Government, such as suspension or debarment, the Contracting Officer may terminate any contract resulting from the false certification. (End of provision)