§2397. Employees or former employees of defense contractors: reports

(a) In this section:

(1) The term "contract" means a contract (including the net amount of modifications to, and the exercise of options under, the contract) that is in an amount in excess of the simplified acquisition threshold, as in effect at the time that the contract is awarded. The term does not include a contract for the purchase of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))).

(2) The term "defense contractor" means a person that provides services, supplies, or both (including construction) to the Department of Defense under a contract directly with the Department.

(3) The term "served", when used with "otherwise", includes the representation of a defense contractor-

(A) at a hearing, trial, appeal, or other action in which the United States was a party and that involved services, supplies, or both (including construction) that were provided to, or to be provided to, the Department by the contractor; and

(B) in a transaction with the Department that involved services, supplies, or both (including construction) that were provided to, or to be provided to, the Department by the contractor.

(b)(1) This subsection applies to-

(A) a former or retired officer of the Army, Navy, Air Force, or Marine Corps who (i) has at least 10 years of active service, and (ii) held for any period during that service a grade above captain or, if the Navy, above lieutenant; and

(B) a former civilian official or employee (including a consultant or part-time employee) of the Department of Defense whose pay rate (at any time during the three-year period before the end of the last service of the person with the Department) was at least equal to the minimum rate at the time for GS–13.

(2)(A) If a person to whom this subsection applies (i) was employed by, or served as a consultant or otherwise to, a defense contractor at any time during a year at an annual pay rate of at least $25,000 and the defense contractor was awarded contracts by the Department of Defense during the preceding year that totaled at least $10,000,000, and (ii) within the two-year period ending on the day before the person began the employment or consulting relationship, the person served on active duty or was a civilian employee for the Department, the person shall file a report with the Secretary of Defense in such manner and form as the Secretary may prescribe. The person shall file the report not later than 90 days after the date on which the person began the employment or consulting relationship.

(B) The person shall file an additional report each time, during the two-year period beginning on the date the active duty or civilian employment with the Department terminated, that the person's job with the defense contractor significantly changes or the person commences an employment or consulting relationship with another defense contractor under the conditions described in the first sentence. A person required to file an additional report under this subparagraph shall file the report within 30 days after the date of the change or the date the employment or consulting relationship commences, as the case may be.

(3) The report shall contain the following information:

(A) The name and address of the person reporting.

(B) The name and address of the defense contractor that employed the person or for whom the person served as a consultant or otherwise.

(C) The title of the position of the person when serving the defense contractor.

(D) A description of the duties and work performed or to be performed by the person for the defense contractor, and a description of any similar duties or work performed for which the person had at least partial responsibility as a civilian official or employee of the Department of Defense or a member of the armed forces during the two-year period referred to in paragraph (2)(A)(ii).

(E) The military grade of the person while on active duty or the gross pay rate while performing civilian service for the Department.

(F) A description of the duties and the work performed by the person while on active duty or performing civilian service for the Department during the two-year period referred to in paragraph (2)(A)(ii) and a description of the type of work performed and the extent to which such work was performed by the person for the defense contractor that has employed the person or has retained the person as a consultant.

(G) The date the active duty or civilian service by the person for the Department ended and the date the service with the defense contractor began and, if applicable, ended.

(H) Other pertinent information the Secretary requires.

(I) A statement describing any disqualification action taken by the person during the two-year period referred to in paragraph (2)(A)(ii) with respect to any involvement in a matter concerning the defense contractor.

(c)(1) A person who (A) holds civilian office or employment (including employment as a consultant or part-time employee) in the Department at any time during a year at a pay rate at least equal to the minimum rate for GS–13, and (B) within the two-year period before the effective date of employment with the Department was employed by, or served as a consultant or otherwise to, a defense contractor at any time during a year at an annual pay rate of at least $25,000 and the contractor was awarded contracts by the Department during that year that total at least $10,000,000, shall file a report with the Secretary in the way and at the time prescribed by the Secretary.

(2) The report shall contain the following information:

(A) The name and address of the person reporting.

(B) The title of the position of the person with the Department.

(C) A description of the duties and work performed by the person with the Department and a description of any similar duties or work for which the person had at least partial responsibility as an employee or consultant of the defense contractor during the two-year period referred to in paragraph (1)(B).

(D) The name and address of the defense contractor that employed the person or for whom the person served as a consultant or otherwise.

(E) The title of the position of the person when serving the defense contractor.

(F) A description of the duties and work performed by the person for the defense contractor and a description of the type of work and the extent to which such work was performed by the person in connection with contracts of the defense contractor with the Department during the two-year period referred to in paragraph (1)(B).

(G) The date the service of the person with the defense contractor ended and the date the service with the Department began.

(H) Other pertinent information the Secretary requires.

(d) The Secretary shall maintain a file containing the information filed under this section. The file may be inspected by members of the public at any time during regular work hours.

(e) Before April 1 of each year, the Secretary shall report to Congress the names of persons who have filed reports for the preceding year under this section. The names shall be listed, by groups, under the names of the appropriate defense contractors. The Secretary may include for each name appropriate additional information.

(f)(1) A person who fails to comply with the filing requirements of this section shall be liable to the United States for an administrative penalty in the amount of $10,000, or in such lesser amount as may be determined by the Secretary of Defense, considering all the relevant circumstances.

(2) The Secretary shall determine whether a person has failed to file a report required by this section and shall determine the amount of the penalty under paragraph (1). The Secretary shall make the determinations on the record after opportunity for an agency hearing as provided in subchapter II of chapter 5 of title 5. The determinations of the Secretary shall be subject to judicial review under chapter 7 of such title.

(Added Pub. L. 97–295, §1(29)(A), Oct. 12, 1982, 96 Stat. 1291 ; amended Pub. L. 99–145, title IX, §922, Nov. 8, 1985, 99 Stat. 693 ; Pub. L. 100–26, §7(j)(5), (k)(2), Apr. 21, 1987, 101 Stat. 283 , 284; Pub. L. 102–25, title VII, §701(d)(6), Apr. 6, 1991, 105 Stat. 114 ; Pub. L. 102–484, div. A, title X, §1052(29), Oct. 23, 1992, 106 Stat. 2500 ; Pub. L. 103–355, title IV, §4401(d), title VIII, §8105(d), Oct. 13, 1994, 108 Stat. 3348 , 3392.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2397(a)	50:1436(a)(3)–(7), (b)(1)(B), (C), (h).	Nov. 19, 1969, Pub. L. 91–121, §410, 83 Stat. 210 ; Apr. 21, 1976, Pub. L. 94–273, §§4(4), 5(6), 14, 90 Stat. 377 , 378.
2397(b)	50:1436(a)(1), (2), (b)(1) (less (B), (C)), (c)(1) (words before semicolon), (c)(2) (words before semicolon), (c)(3) (words before semicolon), (e) (words before semicolon).
2397(c)	50:1436(b)(2), (c)(1) (less words before semicolon), (c)(2) (less words before semicolon), (c)(3) (less words before semicolon), (e) (less words before semicolon).
2397(d)	50:1436(f).
2397(e)	50:1436(d).
2397(f)	50:1436(g).

In the section, the words "services, supplies, or both" are substituted for "services and materials" because "supplies" is defined in 10:101(26) to include material. However, the word "construction" is retained and used with "services, supplies, or both" to allow the definition of "services and materials" in 50:1436(a)(4) to be omitted. The text of 50:1436(b) (words before (1)) is omitted as unnecessary because of the restatement.

In subsection (a), the definition of "Department of Defense" in 50:1436(a)(5) is omitted because of 10:101(5). The text of 50:1436(h) is omitted as executed. The text of 50:1436(a)(7) is omitted as unnecessary.

In subsection (a)(2), the word "person" is substituted for "individual, firm, corporation, partnership, association, or other legal entity" because of 1:1.

In subsection (a)(3), the source provisions are restated to include the conduct described therein within the definition of "served" when used with "otherwise". Although 50:1436(b)(1)(A)–(C) appear to be co-equal clauses, the use in other parts of the source provision only of the language used in clause (A), coupled with the legislative history of the source provision, indicates that clauses (B) and (C) are only descriptions of conduct that is within the scope of clause (A) as service "otherwise" than that described in that clause.

In subsection (b), the word "commissioned" is omitted as unnecessary because of 10:101(14). The words "Army, Navy, Air Force, or Marine Corps" are substituted for "Armed Forces of the United States" for clarity. In ordinary context, "Armed Forces of the United States" would include the Coast Guard (10:101(4)). However, the context of 50:1436 indicates that the term was not intended to include the Coast Guard; the section elsewhere refers only to the Department of Defense, not to the Department of Transportation under which the Coast Guard is located. The words "civilian official" are substituted for "civilian officer" to use the more appropriate terminology.

In subsection (c), the text of 50:1436(e) (less words before semicolon) is omitted as covered by the words "holds . . . at any time during a fiscal year".

In subsection (e), the word "Congress" is substituted for "the President of the Senate and the Speaker of the House of Representatives" for consistency in title 10 and with other titles of the United States Code.

In subsection (f), the words "shall be guilty of a misdemeanor" are omitted as unnecessary because of 18:1. The words "upon conviction thereof" are omitted as surplus.

Amendments

1994-Subsec. (a)(1). Pub. L. 103–355 substituted "simplified acquisition threshold" for "small purchase threshold (as defined in section 2302(7) of this title)" and inserted at end "The term does not include a contract for the purchase of commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))."

1992-Subsec. (a)(1). Pub. L. 102–484 substituted "that the contract" for "that contract".

1991-Subsec. (a)(1). Pub. L. 102–25 struck out "awarded" after "means a contract" and substituted "is in an amount in excess of the small purchase threshold (as defined in section 2302(7) of this title), as in effect at the time that contract is awarded" for "involves at least $25,000".

1987-Subsec. (a). Pub. L. 100–26, §7(k)(2), inserted "The term" after each par. designation and struck out uppercase letter of first word after first quotation marks in each par. and substituted lowercase letter.

Subsec. (b)(1)(B). Pub. L. 100–26, §7(j)(5)(A), substituted "three-year" for "3-year".

Subsecs. (b)(2), (3), (c). Pub. L. 100–26, §7(j)(5)(B), substituted "two-year" for "2-year" wherever appearing.

Subsec. (f)(2). Pub. L. 100–26, §7(j)(5)(C), struck out ", United States Code" after "subchapter II of chapter 5 of title 5".

1985-Subsec. (a)(1). Pub. L. 99–145, §922(a), struck out "by negotiation" after "awarded" and substituted "$25,000" for "$10,000".

Subsec. (b)(2). Pub. L. 99–145, §922(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "A person to whom this subsection applies who (A) was employed by, or served as a consultant or otherwise to, a defense contractor at any time during a fiscal year at an annual pay rate of at least $15,000 and the contractor was awarded contracts by the Department during that fiscal year that total at least $10,000,000, and (B) within the 3-year period before the beginning of that fiscal year served on active duty or performed civilian service for the Department, shall file a report with the Secretary of Defense (before February 16 of the next succeeding fiscal year) in the way prescribed by the Secretary."

Subsec. (b)(3)(D). Pub. L. 99–145, §922(c)(1), added cl. (D) and struck out former cl. (D) which read: "A brief description of the duties and work performed by the person for the defense contractor."

Subsec. (b)(3)(F). Pub. L. 99–145, §922(c)(2), substituted "A description" for "A brief description" and "2-year period referred to in paragraph (2)(A)(ii) and a description of the type of work performed and the extent to which such work was performed by the person for the defense contractor that has employed the person or has retained the person as a consultant" for "3-year period before that duty or service ended".

Subsec. (b)(3)(I). Pub. L. 99–145, §922(c)(3), added cl. (I).

Subsec. (c)(1). Pub. L. 99–145, §922(d)(1), struck out "fiscal" before "year" in three places and substituted "2-year" for "3-year" and "$25,000" for "$15,000".

Subsec. (c)(2)(C). Pub. L. 99–145, §922(d)(2)(A), added cl. (C) and struck out former cl. (C) which read: "A brief description of the duties with the Department."

Subsec. (c)(2)(F). Pub. L. 99–145, §922(d)(2)(B), added cl. (F) and struck out former cl. (F) which read: "A brief description of the duties and the work performed by the person for the defense contractor."

Subsec. (e). Pub. L. 99–145, §922(e), substituted "preceding year" for "preceding fiscal year".

Subsec. (f). Pub. L. 99–145, §922(f), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "A person not complying with the filing requirements of this section shall be fined not more than $1,000, or imprisoned not more than 6 months, or both."

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 251 of Title 41, Public Contracts.

Section Referred to in Other Sections

This section is referred to in section 2397a of this title.