Comment on FR Doc # E9-23893

DHS has 4 comments on the proposed rule. 1. The rule proposes to add FAR 52.209-XX, Information Regarding Responsibility Matters, as a new provision. Paragraph (d) of FAR 52.209-XX places post-award requirements on the “offeror, if awarded a contract.” The contractor must update the information in FAPIIS on a semi-annual basis throughout the life of the contract. DHS notes that provisions apply only to a solicitation. Clauses apply as terms and conditions of the resulting contract. Unless the requirement for semi-annual updates to FAPIIS is incorporated as a clause, it will not be enforceable. A provision only obliges the contractor to make representations of current fact upon which award may be predicated. It imposes no obligation of contract performance (as would a contract clause). As such, the government should not, and cannot effectively, obtain performance commitments through a contractor statement of intention which is only buried in the provision, but is not then integrated into the contract. An offeror’s representation of an intention to self-report on a semiannual basis if awarded the contract would rarely, if ever, form the basis for a false statement. To be a false statement, the representation would need to be made knowing future events or else would need to be made solely on the basis of the offeror’s state of mind, neither of which is a credible basis for a false statements case. If paragraph (d) is incorporated into the contract as a clause (in its current phrasing), it would form the basis for termination or breach based on a failure to abide a performance commitment. Different phrasing could be devised to oblige the contractor to periodically update the information and impute to the contractor, if nothing is entered into the system, a representation that none of the enumerated events have occurred. See attachment for additional comments.