FAR 9.109-4—Certification by the offeror.
Plain-English Summary
FAR 9.109-4 sets out the certification requirement for offerors seeking contract award when the government is screening for certain foreign policy and national security concerns tied to arms control, nonproliferation, and disarmament obligations. It explains what an offeror must certify about its own conduct and the conduct of any entity it owns or controls, and it also allows an alternative to certification if the offeror provides information showing that the President has issued a waiver or determined that the relevant entity has stopped the covered activities. The section also addresses how the certification is submitted, making clear that it must accompany the offer and is not part of the standard SAM annual representations and certifications. In addition, it tells contracting officers when they may rely on the certification and when they should question it. Finally, it describes the consequences of a false certification, including remedies such as suspension or debarment and a minimum debarment period of two years if suspension precedes debarment. In practice, this section is about ensuring offerors are not tied to prohibited conduct or entities and giving contracting officers a clear, limited basis for award eligibility decisions.
Key Rules
Self-certification required
An offeror must certify that it has not engaged in activities that contributed to or significantly affected a foreign country’s noncompliance with U.S. arms control, nonproliferation, or disarmament obligations. The certification also covers any entity owned or controlled by the offeror.
Alternative to certification
Instead of certifying noninvolvement, the offeror may provide information showing that the President has waived application of the restriction or determined that the entity has ceased the covered activities. This gives offerors a path to eligibility where a formal waiver or cessation determination exists.
Submit with the offer
If the offeror is certifying under the referenced solicitation provision, the certification must be submitted with the offer. It is not satisfied by the annual SAM representations and certifications, so it must be handled as a separate, current submission.
Contracting officer reliance
The contracting officer may rely on the offeror’s certification unless there is reason to question it. This means the CO generally does not have to independently verify the certification absent a red flag or inconsistency.
False certification consequences
A false certification can trigger remedies under the suspension and debarment rules. If debarment follows suspension, the debarment period must be at least two years, counting any suspension time.
Responsibilities
Offeror
Determine whether it or any entity it owns or controls has engaged in covered activities related to foreign violations of arms control, nonproliferation, or disarmament commitments. Submit the required certification with the offer, or provide information showing a presidential waiver or cessation determination if relying on that alternative.
Contracting Officer
Review the submitted certification or waiver/cessation information as part of award eligibility. Rely on the certification unless there is reason to question it, and refer suspected false certifications for appropriate remedies.
Agency
Apply the certification requirement consistently in solicitations and award decisions, and use suspension or debarment procedures when a false certification is established.
President of the United States
Issue waivers or make cessation determinations under the cited statutory authorities when appropriate, which can affect whether the offeror may qualify for award.
Practical Implications
Offerors need a real internal review before certifying, including affiliates or other entities they own or control, because the certification is broader than just the bidding company itself.
Because the certification is not in SAM’s annual reps, contractors cannot assume a prior registration covers this requirement; it must be addressed specifically with the offer.
Contracting officers are allowed to rely on the certification, but they should look for inconsistencies, public sanctions information, or other facts that create reason to question it.
A false certification can have serious consequences beyond losing the award, including suspension or debarment and a minimum two-year debarment period if suspension comes first.
This provision is especially important for contractors with international operations, ownership interests, or complex corporate structures, since activities by controlled entities can affect eligibility.
Official Regulatory Text
(a) In order to be eligible for contract award, an offeror is required to— (1) (i) Certify that 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) Similarly certify with regard to any entity owned or controlled by the offeror; or (2) Provide 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). (b) If certifying in accordance with 52.209-13 (b)(1), the Offeror is required to submit the certification with the offer. It is not included in the annual representations and certifications in the System for Award Management. (c) The contracting officer may rely on an offeror's certification unless the contracting officer has reason to question the certification. (d) Upon the determination of a false certification under 52.209-13 , an offeror will be subject to such remedies as suspension or debarment under subpart 9.4 shall be for a period of not less than 2 years, inclusive of any suspension period, if suspension precedes a debarment (see 9.406-4 (a)(1)(iii) and (a)(2)).