Class Deviation 2024-O0003 - Prohibition on Providing Funds to the Enemy and Authorization of Additional Access to Records

Summary

This deviation rescinds and supersedes Class Deviation 2020-O0022. It requires contracting officers to include two clauses in solicitations and contracts valued over $50,000 performed outside the United States in support of contingency operations where Armed Forces are actively engaged in hostilities. The clauses implement NDAA FY 2015 sections 841 and 842, prohibiting funds from reaching enemies and authorizing access to contractor records.

Required Contracting Officer Actions

1. Include clause 252.225-7993, Prohibition on Providing Funds to the Enemy (DEVIATION 2024-O0003), in all solicitations and contracts over $50,000 performed outside the United States and its outlying areas in support of a contingency operation where Armed Forces are actively engaged in hostilities.
2. Include clause 252.225-7975, Additional Access to Contractor and Subcontractor Records (DEVIATION 2024-O0003), in all solicitations and contracts over $50,000 performed outside the United States and its outlying areas in support of a contingency operation where Armed Forces are actively engaged in hostilities.
3. Apply both clauses to commercial (Part 12) acquisitions meeting the threshold and performance criteria.
4. Check the System for Award Management (SAM) Exclusions list prior to awarding any contract awarded on or before December 31, 2025 to be performed outside the United States and its outlying areas.
5. Check SAM at least monthly for all contracts performed outside the United States and its outlying areas in support of covered contingency operations to ensure no existing contracts are with prohibited or restricted persons or entities.
6. Upon termination or voiding of a contract under this deviation, report the action as a default in the Federal Awardee Performance and Integrity Information System (FAPIIS) per Federal Acquisition Regulation 42.1503(h)(1).
7. Follow the procedures in Attachment 3 when exercising the authorities provided by this deviation. Exercise these authorities only upon written notification from a combatant commander.
8. Upon receiving a combatant commander notice under Attachment 3 paragraph 2, submit a report on any action taken to osd.pentagon.ousd-a-s.mbx.dpc-cp@mail.mil and the commander of the relevant combatant command.

Affected Provisions and Clauses

252.225-7975, (Clause)

• Change type: MODIFIED
• Action: Add clause 252.225-7975

252.225-7993, (Clause)

• Change type: MODIFIED
• Action: Add clause 252.225-7993

Notes

Supersession: This deviation rescinds and supersedes Class Deviation 2020-O0022 effective immediately.

HCA Authority: Heads of contracting activities (HCAs) hold the authority to terminate, void or restrict contracts. This authority cannot be redelegated.

Combatant Commander Trigger: The deviation authorities may be exercised only upon written notification from a combatant commander. No unilateral HCA action without that trigger.

Contractor Notice and Review: An HCA taking action to restrict, terminate or void a contract must notify the contractor in writing. The contractor has 30 days to request an administrative review.

Classified Information: Classified information used to support an HCA decision may not be disclosed to the affected contractor or its representatives. Disclosure requires a protective order from a court established under Article I or Article III of the Constitution.

SAM Exclusions Entry: When an HCA restricts future awards to a person or entity, the contracting activity must notify Defense Pricing and Contracting (DPC) Contract Policy and request a SAM Exclusions entry. Use Classification: Special Entity Designation, Exclusion Type: Prohibition/Restriction.

Records Examination Trigger: The authority to examine records under 252.225-7975 requires a written contracting officer determination. That determination must rest on a finding by the commanding officer of United States Africa Command (USAFRICOM), United States Central Command (USCENTCOM), United States European Command (USEUCOM), United States Indo-Pacific Command (USINDOPACOM), United States Southern Command (USSOUTHCOM) or United States Transportation Command (USTRANSCOM).

Subcontract Flow-Down: Both clauses require flow-down to subcontracts over $50,000 performed outside the United States and its outlying areas. This includes subcontracts for commercial products and commercial services.

Suggested Questions