§2397b. Certain former Department of Defense procurement officials: limitations on employment by contractors
(a)(1) Subject to subsections (c) and (d), a person who is a former officer or employee of the Department of Defense or a former or retired member of the armed forces may not accept compensation from a contractor during the two-year period beginning on the date of such person's separation from service in the Department of Defense if-
(A) on a majority of the person's working days during the two-year period ending on the date of such person's separation from service in the Department of Defense, the person performed a procurement function (relating to a contract of the Department of Defense) at a site or plant that is owned or operated by the contractor and that was the principal location of such person's performance of that procurement function;
(B) the person performed, on a majority of the person's working days during such two-year period, procurement functions relating to a major defense system and, in the performance of such functions, participated personally and substantially, and in a manner involving decisionmaking responsibilities, with respect to a contract for that system through contact with the contractor; or
(C) during such two-year period the person acted as one of the primary representatives of the United States-
(i) in the negotiation of a Department of Defense contract in an amount in excess of $10,000,000 with the contractor; or
(ii) in the negotiation of a settlement of an unresolved claim of the contractor in an amount in excess of $10,000,000 under a Department of Defense contract.
(2) In the application of paragraph (1) to a former officer or employee of the Department of Defense or a former or retired member of the armed forces, a person's status as a contractor shall be determined as of the date of the separation from service in the Department of Defense of the officer or employee or member or former member involved.
(b)(1) Any person who knowingly violates subsection (a)(1) shall be subject to a civil fine, in an amount not to exceed $250,000, in a civil action brought by the United States in the appropriate district court of the United States.
(2) Any person who knowingly offers or provides any compensation to another person, and who knew or should have known that the acceptance of such compensation is or would be in violation of subsection (a)(1), shall be subject to a civil fine, in an amount not to exceed $500,000, in a civil action brought by the United States in the appropriate district court of the United States.
(c) This section does not apply to any person with respect to-
(1) duties described in clause (A) or (B) of subsection (a)(1) which were performed while such person was serving-
(A) in a civilian position for which the rate of pay is less than the minimum rate of pay payable for grade GS–13 of the General Schedule; or
(B) as a member of the armed forces in a pay grade below pay grade O–4; or
(2) duties described in clause (C) of subsection (a)(1) which were performed while such person was serving-
(A) in a civilian position for which the rate of pay is less than the minimum rate of pay payable for a Senior Executive Service position; or
(B) as a member of the armed forces in a pay grade below pay grade O–7.
(d) This section does not prohibit any person from accepting compensation from any contractor that, during the fiscal year preceding the fiscal year in which such compensation is accepted, was not a Department of Defense contractor or was a contractor under Department of Defense contracts in a total amount less than $10,000,000.
(e)(1) Any person may, before accepting any compensation, request the appropriate designated agency ethics official to advise such person on the applicability of this section to the acceptance of such compensation. For purposes of the preceding sentence, the appropriate designated agency ethics official is the designated agency ethics official of the agency in which such person was serving at the time such person separated from service in the Department of Defense.
(2) A request for advice under paragraph (1) shall contain all information that is relevant to a determination by the designated agency ethics official on such request.
(3) Not later than 30 days after the date on which a designated agency ethics official receives a request for advice under paragraph (1), such official shall issue a written opinion on the applicability of this section to the acceptance of compensation covered by the request.
(4) If a designated agency ethics official, on the basis of a complete disclosure as required by paragraph (2), states in a written opinion furnished to any person under this subsection that this section is inapplicable to the acceptance of compensation by such person from a contractor in a particular case, there shall be a conclusive presumption in favor of such person, for the purposes of this section, that the person's acceptance of such compensation in such case is not a violation of subsection (a)(1).
(f) In this section:
(1) The term "compensation" includes any payment, gift, benefit, reward, favor, or gratuity-
(A) which is provided, directly or indirectly, for services rendered by the person accepting such payment, gift, benefit, reward, favor, or gratuity; and
(B) which is valued in excess of $250 at the prevailing market price.
(2)(A) The term "contractor" means a person-
(i) that contracts to supply the Department of Defense with goods or services;
(ii) that controls or is controlled by a person described in clause (i); or
(iii) that is under common control with a person described in clause (i).
(B) Such term does not include-
(i) an affiliate or subsidiary of a person described in subparagraph (A) that is clearly not engaged in the performance of a Department of Defense contract;
(ii) a State or local government; or
(iii) any person who contracts to supply the Department of Defense only commercial items (as defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))) 1
(3) 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, operational and developmental testing, the approval of payment, or auditing under the contract; or
(E) the management of the procurement program.
(4) The term "armed forces" does not include the Coast Guard.
(5) The term "major defense system" has the meaning given the term "major system" in section 2302(5) of this title.
(g) For the purposes of this section, a person who is a retired member or a former member of the armed forces shall be considered to have been separated from service in the Department of Defense upon the date of the person's discharge or release from active duty.
(Added
References in Text
The General Schedule, referred to in subsec. (c)(1)(A), is set out under section 5332 of Title 5, Government Organization and Employees.
For pay payable for a Senior Executive Service position, referred to in subsec. (c)(2)(A), see section 5381 et seq. of Title 5.
Codification
Amendments
1994-Subsec. (f)(2)(B)(iii).
1987-Subsec. (a)(1)(C).
Effective Date of 1994 Amendment
For effective date and applicability of amendment by
Effective Date
Section 101(c) [title X, §931(c)] of
"(1) Subject to paragraph (2), this section and the amendments made by this section [enacting sections 2397b and 2397c of this title and repealing provisions set out as a note under section 2397a of this title] shall take effect 180 days after the date of the enactment of this Act [Oct. 18, 1986].
"(2)(A) The amendments made by this section-
"(i) do not preclude the continuation of employment that began before the effective date of this section or the acceptance of compensation for such employment; and
"(ii) do not, except as provided in subparagraph (B), apply to a person whose service in the Department of Defense terminates before the effective date of this section.
"(B) Subparagraph (A)(ii) does not preclude the application of the amendments made by this section to a person with respect to service in the Department of Defense by such person on or after the effective date of this section."
Suspension of Effect of Section
Section Referred to in Other Sections
This section is referred to in section 2397c of this title.