Overview
This section implements the Sudan Accountability and Divestment Act of 2007, prohibiting U.S. government agencies from contracting with entities that engage in specific restricted business operations in Sudan. It establishes a mandatory certification process for offerors and outlines strict penalties for providing false information.
Key Rules
- Restricted Business Operations: Defined as engaging in power production, mineral extraction, oil-related activities, or the production of military equipment within Sudan.
- Mandatory Certification: Every offeror must explicitly certify that it does not conduct restricted business operations in Sudan to be eligible for a contract award.
- Specific Exemptions: Business operations are not considered "restricted" if they are:
- Conducted under contract with the regional government of southern Sudan.
- Authorized by the Office of Foreign Assets Control (OFAC) or exempted by Federal law.
- Related to providing goods/services to marginalized populations, peacekeeping forces, or humanitarian organizations.
- Used solely to promote health or education.
- Remedies for Falsehoods: If an offeror provides a false certification, the government may terminate the contract and the contractor may be suspended or debarred for up to three years.
- Presidential Waiver: A waiver may be granted on a case-by-case basis if the President determines it is in the national interest, following a rigorous agency request process and consultation with the State Department and National Security Council.
Practical Implications
- Due Diligence: Contractors must conduct comprehensive internal audits of their global commercial activities to ensure no subsidiaries or divisions are engaged in prohibited Sudanese sectors before signing federal certifications.
- High Bar for Waivers: The waiver process is administratively burdensome, requiring agencies to prove through market research that no other source can provide the supplies or services and that the procurement is essential to national security.