FAR 9.108-5—Solicitation provision and contract clause.
Plain-English Summary
FAR 9.108-5 tells contracting officers exactly which inverted domestic corporation restrictions must be inserted into solicitations and contracts. It covers two specific prescription requirements: the solicitation representation at 52.209-2, Prohibition on Contracting with Inverted Domestic Corporations-Representation, and the contract clause at 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations. The section applies to acquisitions of products or services, including construction, so it is not limited to one type of procurement. Its purpose is to ensure offerors represent their status up front and that the resulting contract contains the operative prohibition language. In practice, this section is a mandatory checklist item for contracting officers when preparing solicitations and awards, because omitting either the representation or the clause can create compliance problems and weaken the Government’s ability to enforce the restriction.
Key Rules
Include the representation provision
The contracting officer must include FAR 52.209-2 in every solicitation for products or services, including construction. This provision requires offerors to make the required representation regarding inverted domestic corporation status as part of the offer process.
Include the contract clause
The contracting officer must include FAR 52.209-10 in every solicitation and contract for products or services, including construction. This clause carries the substantive prohibition into the contract and makes the restriction enforceable after award.
Applies broadly to covered acquisitions
The requirement is not limited to a narrow category of buys; it applies to acquisitions of products, services, and construction. Contracting officers should treat it as a standard insertion requirement whenever the acquisition falls within the covered scope.
Separate solicitation and contract functions
The provision and clause serve different purposes and both are required. The provision is used to obtain the offeror’s representation before award, while the clause governs the contractor’s obligations under the awarded contract.
Responsibilities
Contracting Officer
Must insert FAR 52.209-2 into each solicitation for covered acquisitions and insert FAR 52.209-10 into each solicitation and resulting contract for covered acquisitions. The contracting officer is responsible for ensuring the correct text is included before issuance and award.
Offeror/Contractor
Must respond to the solicitation representation in accordance with FAR 52.209-2 and, once awarded a contract containing FAR 52.209-10, comply with the prohibition on contracting with inverted domestic corporations.
Agency
Must support contracting personnel with acquisition templates, clause libraries, and oversight processes that ensure the required provision and clause are consistently used in covered procurements.
Practical Implications
This is a mandatory clause-and-provision insertion rule, so contracting officers should verify both items are in the solicitation package before release and award.
A common pitfall is including the contract clause but forgetting the solicitation representation, or vice versa; FAR 9.108-5 requires both in the specified places.
Because the rule applies to products, services, and construction, teams should not assume construction solicitations are exempt.
Contracting officers should rely on approved solicitation templates and clause matrices to reduce the risk of omission.
Contractors should review the representation carefully and ensure internal compliance screening is current before submitting an offer.
Official Regulatory Text
The contracting officer shall- (a) Include the provision at 52.209-2 , Prohibition on Contracting with Inverted Domestic Corporations-Representation, in each solicitation for the acquisition of products or services (including construction); and (b) Include the clause at 52.209-10 , Prohibition on Contracting with Inverted Domestic Corporations, in each solicitation and contract for the acquisition of products or services (including construction).