Class Deviation 2024-O0003

OFFICE OF THE UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON
WASHINGTON, DC 20301-3000
ACQUISITION
AND SUSTAINMENT
In reply refer to
DARS Tracking Number: 2024-O0003
MEMORANDUM FOR COMMANDER, UNITED STATES CYBER
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES SPECIAL OPERATIONS
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES TRANSPORTATION
COMMAND (ATTN: ACQUISITION EXECUTIVE)
DEPUTY ASSISTANT SECRETARY OF THE ARMY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE NAVY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
(CONTRACTING)
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS
SUBJECT: Prohibition on Providing Funds to the Enemy and Authorization of Additional
Access to Records
Effective immediately, this class deviation rescinds and supersedes Class Deviation
2020-O0022. Contracting officers shall include the clauses provided in Attachments 1 and 2 of
this deviation in solicitations and contracts, including solicitations and contracts using FAR part
12 procedures for the acquisition of commercial products and commercial services, with an
estimated value in excess of $50,000 that will be performed outside the United States and its
outlying areas in support of a contingency operation in which members of the Armed Forces are
actively engaged in hostilities.
This class deviation implements sections 841 of the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), as amended by section 820 of the NDAA
for FY 2023 (Pub. L. 117-263), and section 842 of the NDAA for FY 2015. Section 841 grants
the authority to terminate or void contracts and to restrict future awards directly or indirectly to
any person or entity that is actively opposing United States or coalition forces involved in a
contingency operation in which members of the Armed Forces are actively engaged in hostilities.
Section 842 grants the authority for additional access to contractor and subcontractor records to
the extent necessary to ensure that funds available under covered contracts are not provided
directly or indirectly to any person or entity.
Heads of contracting activities shall follow the procedures in Attachment 3 when
exercising the authorities provided by this class deviation, which may be exercised only upon
written notification from a combatant commander identifying persons or entities within the
combatant commander’s area of responsibility that are believed to have—
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization of Additional Access to Records
• Provided funds, including goods and services, received under a covered contract,
grant, or cooperative agreement of an executive agency directly or indirectly to any
person or entity that is actively opposing United States or coalition forces involved in
a contingency operation in which members of the Armed Forces are actively engaged
in hostilities; or
• Failed to exercise due diligence to ensure that none of the funds, including goods and
services, received under a covered contract, grant, or cooperative agreement of an
executive agency are provided directly or indirectly to any person or entity that is
actively opposing United States or coalition forces involved in a contingency
operation in which members of the Armed Forces are actively engaged in hostilities.
This class deviation remains in effect until December 31, 2025, or otherwise rescinded.
My point of contact is Col Adam Coyne who may be reached at (703) 693-5115 or at
adam.v.coyne.mil@mail.mil.
for
John M. Tenaglia
Principal Director,
Defense Pricing and Contracting
Attachments:
As stated
2
Attachment 1
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization of Additional Access to Records
252.225-7993 Prohibition on Providing Funds to the Enemy. (DEVIATION
2024-O0003)
Use this clause in solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial products and
commercial services, with an estimated value in excess of $50,000 that will be
performed outside the United States and its outlying areas in support of a
contingency operation in which members of the Armed Forces are actively engaged
in hostilities.
PROHIBITION ON PROVIDING FUNDS TO THE ENEMY
(DEVIATION 2024-O0003) (DEC 2023)
(a) The Contractor shall—
(1) Exercise due diligence to ensure that none of the funds, including supplies
and services, received under this contract are provided directly or indirectly (including
through subcontracts) to a person or entity who is actively opposing United States or
Coalition forces involved in a contingency operation in which members of the Armed
Forces are actively engaged in hostilities;
(2) Check the list of prohibited/restricted sources in the System for Award
Management (SAM) at www.sam.gov—
(i) Prior to subcontract award; and
(ii) At least on a monthly basis; and
(3) Terminate or void in whole or in part any subcontract with a person or
entity listed in SAM as a prohibited or restricted source pursuant to section 841 of the
National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291), as amended,
unless the Contracting Officer provides to the Contractor written approval of the head
of the contracting activity to continue the subcontract.
(b) The Head of the Contracting Activity has the authority to—
(1) Terminate any contract for default, in whole or in part, if the Head of the
Contracting Activity determines in writing that the contractor failed to exercise due
diligence, as required by paragraph (a) of this clause; or
(2)(i) Void any contract, in whole or in part, if the Head of the Contracting
Activity determines in writing that any funds received under this contract have been
provided directly or indirectly to a person or entity who is actively opposing United
Page 1 of 2
Attachment 1
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization of Additional Access to Records
States or Coalition forces involved in a contingency operation in which members of the
Armed Forces are actively engaged in hostilities.
(ii) When voided in whole or in part, a contract is unenforceable as contrary
to public policy, either in its entirety or with regard to a segregable task or effort under
the contract, respectively.
(c) Subcontracts. The Contractor shall include the substance of this clause,
including this paragraph (c), in subcontracts, including subcontracts for commercial
products and commercial services, under this contract that have an estimated value
over $50,000 and will be performed outside the United States and its outlying areas.
(End of clause)
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Attachment 2
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization of Additional Access to Records
252.225-7975 Additional Access to Contractor and Subcontractor Records.
(DEVIATION 2024-O0003)
Use this clause in all solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of commercial products
and commercial services, with an estimated value in excess of $50,000 that will be
performed outside the United States and its outlying areas in support of a
contingency operation in which members of the Armed Forces are actively engaged
in hostilities.
ADDITIONAL ACCESS TO CONTRACTOR AND SUBCONTRACTOR RECORDS
(DEVIATION 2024-O0003) (DEC-2023)
(a) In addition to any other existing examination-of-records authority, the
Government is authorized to examine any records of the Contractor and its
subcontractors to the extent necessary to ensure that funds, including supplies and
services, available under this contract are not provided, directly or indirectly, to a
person or entity that is actively opposing United States or coalition forces involved in a
contingency operation in which members of the Armed Forces are actively engaged in
hostilities.
(b) Subcontracts. The substance of this clause, including this paragraph (b), is
required to be included in subcontracts, including subcontracts for commercial products
and commercial services, under this contract that have an estimated value over $50,000
and will be performed outside the United States and its outlying areas.
(End of clause)
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Attachment 3
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization for Additional Access to Records
Procedures—Prohibition on Providing Funds to the Enemy and Authorization for
Additional Access to Records
1. 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), and United States Transportation Command (USTRANSCOM)
Commanders, or deputy commanders, will identify persons and entities within the area of
responsibility of such command that—
• Provide funds, including goods and services, received under a covered contract, grant,
or cooperative agreement of an executive agency directly or indirectly to a person or
entity that is actively opposing United States or coalition forces involved in a
contingency operation in which members of the Armed Forces are actively engaged
in hostilities; or
• Fail to exercise due diligence to ensure that none of the funds, including goods and
services, received under a covered contract, grant, or cooperative agreement of an
executive agency are provided directly or indirectly to a person or entity that is
actively opposing United States or coalition forces involved in a contingency
operation in which members of the Armed Forces are actively engaged in hostilities.
2. Upon the identification of a person or entity as described above, the combatant
commander or deputy commander will, in consultation with the Under Secretary of
Defense for Policy, the Under Secretary of Defense for Acquisition and Sustainment
(USD(A&S)), and the appropriate Chiefs of Mission, notify in writing Defense Pricing
and Contracting (DPC), Contract Policy and the appropriate heads of the contracting
activity (HCAs) of such identification of the person or entity. Appropriate HCAs may
include the HCA with purview over the covered contract that was identified as providing
funds, goods, or services to the covered person or entity; any HCA with active contracts
with the identified person or entity; or any HCA considering awarding a contract to the
identified person or entity. DPC will assist combatant commands with notifying the
appropriate HCAs.
3. Upon receipt of such notification, the appropriate HCA(s), without power of redelegation,
will exercise this authority to determine in writing, whether to—
• Prohibit, limit, or otherwise place restrictions on the award of any DoD contracts to
such identified persons or entities;
• Terminate for default any DoD contracts when the HCA determined that the
contractor failed to exercise due diligence (see paragraph (a)(1) of the clause
252.225-7993 of this class deviation) to ensure that none of the funds received under
the contract are provided directly or indirectly to such identified person or entity; or
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Attachment 3
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization for Additional Access to Records
• Void, in whole or in part, any DoD contract that provided funds to such identified
person or entity.
4. The HCA taking an action under paragraph 3. of these procedures to restrict, terminate,
or void a contract shall, in writing, notify the affected contractor of the action. The notice
to the contractor shall inform the contractor of the right to request, within 30 days, an
administrative review of the action. If a contractor requests an administrative review of
an HCA action under paragraph 3 of this class deviation, the HCA will follow Agency
procedures in response to the administrative review. The covered combatant command
will support the HCA through the administrative review process and provide information
as required by the HCA to support the administrative review.
5. Classified information relied upon to make a decision in accordance with paragraph 3. of
these procedures may not be disclosed to a contractor with respect to which an action is
taken pursuant to the authority provided in paragraph 3. of these procedures, or to their
representatives, in the absence of a protective order issued by a court of competent
jurisdiction established under Article I or Article III of the Constitution of the United
States that specifically addresses the conditions upon which such classified information
may be so disclosed.
6. Senior procurement executives (SPEs) shall establish internal processes or guidance for
restricting future award of contracts under the their purview. Upon determination by the
HCA to restrict the future award of contracts or subcontracts to a person or entity, the
contracting activity, through their SPE, shall notify Defense Pricing and Contracting,
Contract Policy and request entry of the required data on the ineligible person or entity in
the System for Award Management (SAM) Exclusions as follows (see FAR 9.404):
Classification = Special Entity Designation
Agency = DoD
Exclusion Status = Active
Exclusion Type = Prohibition/Restriction
Comments: Pursuant to Subtitle E, Title VIII of the NDAA for FY 2015
7. Upon termination or voiding of a contract, the contracting officer shall treat such action as a
default for purposes of reporting in the Federal Awardee Performance and Integrity
Information System (FAPIIS) (see FAR 42.1503(h)(1)).
8. For contracts awarded on or before December 31, 2025, to be performed outside the
United States and its outlying areas, the contracting officer shall check the current list of
prohibited or restricted persons or entities in SAM Exclusions prior to awarding the
contract.
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Attachment 3
Class Deviation 2024-O0003
Prohibition on Providing Funds to the Enemy and
Authorization for Additional Access to Records
9. Contracting officers with contracts being performed outside the United States and its
outlying areas in support of covered contingency operations shall also check SAM, at a
minimum, on a monthly basis to ensure none of the existing contracts being performed in
the covered combatant commands are associated with prohibited or restricted persons or
entities.
10. The authority to examine records pursuant to 252.225-7975 (Attachment 2) may be
exercised only upon a written determination by the contracting officer, upon a finding by
the commanding officer of USAFRICOM, USCENTCOM, USEUCOM,
USINDOPACOM, USSOUTHCOM, or USTRANSCOM that there is reason to believe
that funds available under the contract may have been provided directly or indirectly to
persons or entities that are actively opposing United States or coalition forces in a
contingency operation in which members of the Armed Forces are actively engaged in
hostilities.
11. Each HCA shall enforce inclusion of the attached clauses 252.225-7993 (Attachment 1)
and 252.225-7975 (Attachment 2) as prescribed.
12. Reports on Prohibition on Providing Funds to the Enemy.
a. The HCA that receives a notice pursuant to paragraph 2. of these procedures shall
submit to osd.pentagon.ousd-a-s.mbx.dpc-cp@mail.mil and the commander of the
combatant command concerned a report on the action, if any, taken by the HCA
pursuant to paragraph 3. of these procedures, including a determination not to
terminate, void, or restrict the contract as otherwise authorized. Include the
following:
• The contracting activity taking such action.
• An explanation of the basis for the action taken or not taken.
• If applicable, the value of the contract voided or terminated and the value of all
contracts of the contracting activity in force with the person or entity concerned at
the time the contract was terminated or voided.
b. Reports may be submitted in unclassified form, but with a classified annex; or in
classified form, as appropriate.
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