sel, and the Department of Home- land Security’s Acquisition and Grant Fraud Counsel. However, the CO can neither stand down while the OIG investigates nor wait for the results of the OIG inves- tigation, which may take months or longer. The CO has an independent duty to conduct a timely inquiry into possible PIA violations and their im- pact on the procurement. As part of its inquiry, the CO may need to inter- view both government and contractor employees, obtain documents from program personnel, or reach out to Office of the Chief Information Of- ficer for relevant e-mails, texts, and Team/Zoom calls. The CO should document its efforts in the event of a protest or third-party oversight of the procurement. Next, if the CO concludes there is no impact on the procurement, the CO forwards the relevant informa- tion and determination to the desig- nated agency official. If that individual concurs, the CO proceeds with the procurement. However, if that indi- vidual does not concur, or if the CO determines that the procurement is impacted, the matter moves to Head of the Contracting Activity (HCA). FAR 3.104-7(b) then provides the HCA with a nonexclusive list of options, such as advising the CO to continue, con- cluding that a PIA violation occurred, taking steps to void or rescind the contract, referring the disclosed in- formation to an appropriate criminal investigative agency, and beginning an investigation.
Prior to determining that a PIA violation occurred, the FAR recom- mends that the HCA first request additional information. The HCA may pursue more than one action. Unfortunately, the FAR provides no guidance to the HCA or a standard by which the HCA’s investigation may be measured. Again, these efforts should be documented either separately from the CO or combined in a single agency memorandum and included in the contract file. GAO Opinions Some additional guidance regard- ing PIA violation investigations may be obtained from decisions of the Government Accountability Office (GAO) and the U.S. Court of Federal Claims (COFC). The GAO expects the agency to inquire into the allegations and recognizes that some inquiries may require considerable time and effort. In a 2018 GAO Decision in the matter of IBM Corporation , the GAO dis- missed as premature a challenge to the adequacy of the agency’s ongo- ing PIA investigation. When an in- vestigation is complete, the GAO will examine whether the agency followed the procedural requirements of FAR 3.104-7 and, as noted in the 2024 GAO Decision in the matter of Peraton, Inc . , recog- nizes that “a contracting officer may be required to make a significant in- quiry to adequately assess whether the procurement is impacted by a potential PIA violation.” In its reported decisions, GAO has rarely sustained a protest based on
Armed Services Board of Contract Appeals, the Board determined that the PIA was not violated when a contractor received an internal government cost estimate because that document did not fall within the definitions of source selection information, contractor bid, or proposal information. FAR and Away The basic framework for how a CO should deal with an actual or sus- pected PIA violation is found in Federal Acquisition Regulation (FAR) 3.104-7 . As an initial matter, FAR 3.104-7(a) requires that a CO “who receives or obtains information of a violation or possible violation of 41 U.S.C. 2102, 2103, or 2104 (see 3.104-3 ) must determine if the re- ported violation or possible violation has any impact on the pending award or selection of the contractor.” Clearly, the FAR contemplates that the CO will engage in some level of factual inquiry to make this determination. Because a violation of section 2102 is a potential criminal offense, the CO, after a preliminary review, should inform Office of the Inspector General (OIG) or other relevant law enforcement entity of any potential violation, either directly or through agency counsel. It is important that the OIG is aware of potentially crimi- nal misconduct so that the CO does not interfere with the OIG’s investi- gation. Optimally, the CO will have access to agency counsel trained in this area. These would include the Army’s Procurement Fraud Advisors, the Air Force Acquisition Fraud Coun-
Because a violation of section 2102 is a potential criminal offense, the CO after a preliminary review should inform Office of the Inspector General (OIG) or other relevant law enforcement entity of any potential violation, either directly or through agency counsel.
46 | DEFENSE ACQUISITION | November-December 2025
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