§2397a. Requirements relating to private employment contacts between certain Department of Defense procurement officials and defense contractors

(a) In this section:

(1) The term "contract" has the same meaning as provided in section 2397(a)(1) of this title.

(2) The term "covered defense official" means any individual who is serving-

(A) as a civilian officer or employee of the Department of Defense in a position for which the rate of pay is equal to or greater than the minimum rate of pay payable for grade GS–11 under the General Schedule; or

(B) on active duty in the armed forces in a pay grade of O–4 or higher.

(3) The term "defense contractor" has the same meaning as provided in section 2397(a)(2) of this title.

(4) The term "designated agency ethics official" has the same meaning as the term "designated agency official" in section 109(3) of the Ethics in Government Act of 1978 (92 Stat. 1850; 5 U.S.C. App.).

(5) The term "employment" means a relationship under which an individual furnishes services in return for any payment or other compensation paid directly or indirectly to the individual for the services.

(6) The term "procurement function" includes, with respect to a contract, any function relating to-

(A) the negotiation, award, administration, or approval of the contract;

(B) the selection of a contractor;

(C) the approval of changes in the contract;

(D) quality assurance, operation and developmental testing, the approval of payment, or auditing under the contract; or

(E) the management of the procurement program.

(b)(1) If a covered defense official who has participated in the performance of a procurement function in connection with a contract awarded by the Department of Defense contacts, or is contacted by, the defense contractor to whom the contract was awarded (or an agent of such contractor) regarding future employment opportunities for the official with the defense contractor, the official (except as provided in paragraph (2)) shall-

(A) promptly report the contact to the official's supervisor and to the designated agency ethics official (or his designee) of the agency in which the covered defense official is employed; and

(B) for any period for which future employment opportunities for the covered defense official have not been rejected by either the covered defense official or the defense contractor, disqualify himself from all participation in the performance of procurement functions relating to contracts of the defense contractor.

(2) A covered defense official is not required to report the first contact with a defense contractor under paragraph (1)(A) or to disqualify himself under paragraph (1)(B) if the defense official terminates the contact immediately. However, if an additional contact of the same or a similar nature is made by or with the defense contractor, the covered defense official shall report (as provided in paragraph (1)) the contact and all contacts of the same or a similar nature made by or with the defense contractor during the 90-day period ending on the date the additional contact is made.

(c) A report required by subsection (b)(1) shall include-

(1) the date of each contact covered by the report; and

(2) a brief description of the substance of the contact.

(d)(1)(A) If the Secretary of Defense determines under paragraph (2) that a person has failed promptly to make a report required by subsection (b)(1)(A) or (b)(2) or has failed to disqualify himself in any case in which he is required to do so under subsection (b)(1)(B)-

(i) the person may not accept or continue employment with the defense contractor during the 10-year period beginning with the date of separation from Government service; and

(ii) the Secretary may impose on the person an administrative penalty in the amount of $10,000, or in such lesser amount as may be prescribed by the Secretary, taking into consideration all the circumstances.

(B) An individual who accepts or continues employment prohibited by subparagraph (A)(i) shall be liable to the United States for an administrative penalty as provided in subparagraph (A)(ii). Such penalty may be in addition to any penalty previously imposed on the individual under subparagraph (A)(ii) for failure promptly to make a report relating to the defense contractor by whom the individual is employed as required by subsection (b)(1)(A) or (b)(2).

(C) The Secretary of Defense may take action against an individual under this paragraph before, on, or after the date on which the individual's employment with the Government is terminated.

(2)(A) The Secretary of Defense shall determine-

(i) whether an individual has failed promptly to make a report required by subsection (b)(1)(A) or (b)(2) or has failed to disqualify himself in any case in which he is required to do so under subsection (b)(1)(B) and whether to impose a penalty under paragraph (1)(A)(ii) and the amount of such penalty; and

(ii) whether an individual is liable to the United States for an administrative penalty under paragraph (1)(B) and the amount of such penalty.

There shall be a rebuttable presumption in favor of a covered defense official that failure to report a contact with a defense contractor or failure to disqualify himself from participation in the performance of certain procurement functions is not a violation of subsection (b)(1)(A) or (b)(2) or subsection (b)(1)(B), as the case may be, if the defense official has received an opinion in writing from the designated agency ethics official under subsection (e) stating that a report or disqualification by the official was not necessary.

(B) Determinations of the Secretary under subparagraph (A) shall be made 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.

(e) If a designated agency ethics official or his designee receives a report required by subsection (b) or a request for advice from a covered defense official relating to a contact described in such subsection, the designated agency ethics official or his designee may issue a written opinion regarding the necessity of a covered defense official to file a report or disqualify himself from participation in certain procurement functions, as the case may be.

(f) A covered defense official should request the advice of his supervisor and the appropriate designated agency ethics official (or his designee) on matters to which this section applies.

(Added Pub. L. 99–145, title IX, §923(a)(1), Nov. 8, 1985, 99 Stat. 695 ; amended Pub. L. 100–26, §7(k)(2), Apr. 21, 1987, 101 Stat. 284 ; Pub. L. 101–280, §10(b), May 4, 1990, 104 Stat. 162 .)

References in Text

The General Schedule, referred to in subsec. (a)(2)(A), is set out under section 5332 of Title 5, Government Organization and Employees.

Amendments

1990-Subsec. (a)(4). Pub. L. 101–280 substituted "109(3)" for "209(10)".

1987-Subsec. (a). Pub. L. 100–26 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.

Effective Date of 1990 Amendment

Section 10(c) of Pub. L. 101–280 provided that: "The amendments made by subsections (a) and (b) [amending this section and section 3730 of Title 31, Money and Finance] shall take effect on January 1, 1991."

Effective Date

Section 923(b) of Pub. L. 99–145 provided that: "The amendments made by subsection (a) [enacting this section] shall take effect with respect to contacts (referred to in section 2397a of title 10, United States Code, as added by subsection (a) of this section) made on or after the date of enactment of this Act [Nov. 8, 1985]."

Suspension of Effect of Section

Pub. L. 101–510, div. A, title VIII, §815(a)(2), Nov. 5, 1990, 104 Stat. 1597 , provided that this section shall have no force or effect during the period beginning on Dec. 1, 1990, and ending on May 31, 1991.

Pub. L. 101–194, title V, §507(2), Nov. 30, 1989, 103 Stat. 1759 , provided that this section shall have no force or effect during the period beginning on Dec. 1, 1989, and ending one year after such date.

Post-Government-Service Employment Bars on Senior Defense Officials

Pub. L. 99–145, title IX, §921, Nov. 8, 1985, 99 Stat. 693 , which prohibited certain Presidentially appointed Federal employees from accepting employment with defense contractors, was repealed by Pub. L. 99–500, §101(c) [title X, §931(b), (c)], Oct. 18, 1986, 100 Stat. 1783–82 , 1783-160, and Pub. L. 99–591, §101(c) [title X, §931(b), (c)], Oct. 30, 1986, 100 Stat. 3341–82 , 3341-160; Pub. L. 99–661, div. A, title IX, formerly title IV, §931(b), (c), Nov. 14, 1986, 100 Stat. 3940 , renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273 , effective 180 days after Oct. 18, 1986.