B. RESTRICTIONS REGARDING PROCUREMENT

ACTIVITIES

1. Office of Federal Procurement Policy Act, Section 27 41 U.S.C. §423. Procurement integrity

(a) PROHIBITED CONDUCT BY COMPETING CONTRACTORS.-During the conduct of any Federal agency procurement of property or services, no competing contractor or any officer, employee, representative, agent, or consultant of any competing contractor shall knowingly

(1) make, directly or indirectly, any offer or promise of future employment or business opportunity to, or engage, directly or indirectly, in any discussion of future employment or business opportunity with, any procurement official of such agency, except as provided in subsection (c);

(2) offer, give, or promise to offer or give, directly or indirectly, any money, gratuity, or other thing of value to any procurement official of such agency; or

(3) solicit or obtain, directly or indirectly, from any officer or employee of such agency, prior to the award of a contract any proprietary or source selection information regarding such procurement.

(b) PROHIBITED CONDUCT BY PROCUREMENT OFFICIALS.-During the conduct of any Federal agency procurement of property or services, no procurement official of such agency shall knowingly

(1) solicit or accept, directly or indirectly, any promise of future employment or business opportunity from, or engage, directly or indirectly, in any discussion of future employment or business opportunity with, any officer, employee, representative, agent, or consultant of a competing contractor, except as provided in subsection (c);

(2) ask for, demand, exact, solicit, seek, accept, receive, or agree to receive, directly or indirectly, any money, gratuity, or other thing of value from any officer, employee, representative, agent, or consultant of any competing contractor for such procurement; or

(3) disclose any proprietary or source selection information regarding such procurement directly or indirectly to any person other than a person authorized by the head of such agency or the contracting officer to receive such information.

(c) RECUSAL.

(1) A procurement official may engage in a discussion with a competing contractor that is otherwise prohibited by subsection (b)(1) if, before engaging in such discussion

(A) the procurement official proposes in writing to disqualify himself from the conduct of any procurement relating to the competing contractor (i) for any period during which future employment or business opportunities for such procurement official with such competing contractor have not been rejected by either the procurement official or the competing contractor, and (ii) if determined to be necessary by the head of such procuring official's procuring activity (or his designee) in accordance with criteria pre

scribed in implementing regulations, for a reasonable period thereafter; and

(B) the head of that procuring activity of such procurement official (or his designee), after consultation with the appropriate designated agency ethics official, approves in writing the recusal of the procurement official.

(2) A procurement official who, during the period beginning with the issuance of a procurement solicitation and ending with the award of a contract, has participated personally and substantially in the evaluation of bids or proposals, selection of sources, or conduct of negotiations in connection with such solicitation and contract may not be approved for a recusal under paragraph (1) during such period with respect to such procure

ment.

(3) A procurement official who, during the period beginning with the negotiation of a modification or extension of a contract and ending with

(A) an agreement to modify or extend the contract, or

(B) a decision not to modify or extend the contract, has participated personally and substantially in the evaluation of a proposed modification or extension or the conduct of negotiations may not be approved for a recusal under paragraph (1) during such period with respect to such procurement.

(4) A competing contractor may engage in a discussion with a procurement official that is otherwise prohibited by subsection (a)(1) if, before engaging in such discussion, the procurement official has been recused in accordance with this subsection.

(5) Regulations implementing this subsection shall include specific criteria to be used in making determinations and approving recusals under paragraph (1).

(d) DISCLOSURE TO UNAUTHORIZED PERSONS.-During the conduct of any Federal agency procurement of property or services, no person who is given authorized or unauthorized access to proprietary or source selection information regarding such procurement, shall knowingly disclose such information, directly or indirectly, to any person other than a person authorized by the head of such agency or the contracting officer to receive such information. (e) CERTIFICATION AND ENFORCEMENT MATTERS.—

(1) A Federal agency may not award a contract for the procurement of property or services to any competing contractor, or agree to any modification or extension of a contract, unless the officer or employee of such contractor responsible for the offer or bid for such contract, or the modification or extension of such contract, as the case may be

(A)(i) certifies in writing to the contracting officer responsible for such contract that such officer or employee of the competing contractor has no information concerning a violation or possible violation of subsection (a), (b), (d), or (f), or applicable implementing regulations, pertaining to such procurement; or

(ii) discloses to such contracting officer any and all such information and certifies in writing to such con

tracting officer that any and all such information has been disclosed; and

(B)1 certifies in writing to such contracting officer that each officer, employee, agent, representative, and consultant of such competing contractor who has participated personally and substantially in the preparation or submission of such bid or offer, or in such modification or extension of such contract, as the case may be, has certified to such competing contractor that he or she

(i) is familiar with, and will comply with, the requirements of subsection (a) and applicable implementing regulations; and

(ii) will report immediately to the officer or employee of the competing contractor responsible for the offer or bid for any contract or the modification or extension of such contract, as the case may be, any information concerning a violation or possible violation of subsection (a), (b), (d), or (f), or such applicable implementing regulations, pertaining to such procurement. (2) A Federal agency may not award a contract for the procurement of property or services, or agree to any modification or extension of any such contract, unless the contracting officer responsible for such procurement

(A) certifies in writing to the head of such agency that the contracting officer has no information concerning a violation or possible violation of subsection (a), (b), (d), or (f), or applicable implementing regulations, pertaining to such procurement; or

(B) discloses to the head of such agency any and all such information and certifies in writing that any and all such information has been disclosed.

(3) The head of a Federal agency may require any procurement official or any competing contractor, at any time during the conduct of any Federal agency procurement of property or services

(A) to certify in writing to the head of such agency that such procurement official or the officer or employee of the competing contractor responsible for the offer or bid for such contract or the modification or extension of such contract, as the case may be, has no information concerning a violation or possible violation of subsection (a), (b), (d), or (f), or applicable implementing regulations, pertaining to such procurement; or

(B) to disclose to the head of such agency any and all such information and to certify in writing that any and all such information has been disclosed.

1Section 815(b) of the National Defense Authorization Act for Fiscal Year 1991 (P.L. 101–510; 104 Stat. 1597) provides:

(b) CLARIFICATION OF FREQUENCY OF CERTIFICATION BY EMPLOYEES OF CONTRACTORS.-Not later than 30 days after the date of the enactment of this Act, the regulations implementing section 27(eX1X(B) of the Office of Federal Procurement Policy Act (41 U.Š.C. § 423(eX1XB)) shall be revised to ensure that a contractor is required to obtain from each officer, employee, agent, representative, and consultant of the contractor only one certification (as described in clauses (i) and (ii) of that section) during the person's employment or association with the contractor and that such certification shall be made at the earliest possible date after the person begins his or her employment or association with the contractor.

(4) If a procurement official leaves the Government during the conduct of such a procurement, such official shall certify that he or she understands the continuing obligation not to disclose proprietary or source selection information.

(5) For the purposes of enforcing the requirements of this section, the contracting officer responsible for the conduct of a procurement shall maintain, as part of the procurement file— (A) all certifications made by procurement officials and competing contractors with regard to such procurement, as required by this subsection; and

(B) a record of all persons who have been authorized by the head of the agency or the contracting officer to have access to proprietary or source selection information regarding such procurement.

(6) Any person making a certification required by this subsection shall be notified of the applicability of section 1001 of title 18, United States Code, to false, fictitious, or fraudulent statements in such certification.

(7)(A) This subsection applies only to contracts, extensions, and modifications in excess of $100,000.

(B) This subsection need not be applied to a contract(i) with a foreign government or an international organization that is not required to be awarded using competitive procedures pursuant to section 303(c)(4) of the Federal Property and Administrative Services Act of 1949 [41 U.S.C. §253(c)(4)] or section 2304(c)(4) of title 10, United States Code; or

(ii) in an exceptional case, when the head of the Federal agency concerned determines in writing that this subsection should be waived pursuant to procedures and criteria established in implementing regulations issued pursuant to subsection (o) and notifies the Congress in writing of such determination.

The authority to make determinations under clause (ii) of this subparagraph may not be delegated.

(f) RESTRICTIONS RESULTING FROM PROCUREMENT ACTIVITIES OF PROCUREMENT OFFICIALS.

(1) No individual who, while serving as an officer or employee of the Government or member of the Armed Forces, was a procurement official with respect to a particular procurement may knowingly

(A) participate in any manner, as an officer, employee, agent, or representative of a competing contractor, in any negotiations leading to the award, modification, or extension of a contract for such procurement, or

(B) participate personally and substantially on behalf of the competing contractor in the performance of such contract, during the period ending 2 years after the last date such individual participated personally and substantially in the conduct of such procurement or personally reviewed and approved the award, modification, or extension of any contract for such procurement.

(2) This subsection does not apply to any participation referred to in paragraph (1)(A) or (1)(B) with respect to a subcontractor who is a competing contractor unless

(A) the subcontractor is a first or second tier subcontractor and the subcontract is for an amount that is in excess of $100,000;

(B) the subcontractor significantly assisted the prime contractor with respect to negotiation of the prime contract:

(C) the procurement official involved in the award, modification, or extension of the prime contract personally directed or recommended the particular subcontractor to the prime contractor as a source for the subcontract; or

(D) the procurement official personally reviewed and approved the award, modification, or extension of the sub

contract.

(3)(A)(i) The President may grant a waiver of a restriction imposed by paragraph (1)(relating to post-Government service employment) to an officer or employee described in subparagraph (B) if the President determines and certifies in writing that it is in the public interest to grant the waiver and that the services of the officer or employee are critically needed for the benefit of the Federal Government. Not more than 25 officers and employees currently employed by the Government at any one time may hold waivers under this subparagraph.

(ii) A waiver granted under this subparagraph to any person shall apply only with respect to activities engaged in by that person after that person's Government employment is terminated and only to that person's employment at a Government-owned, contractor operated entity with which the person served as an officer or employee immediately before the person's Government employment began.

(B) Waivers under subparagraph (A) may be granted only to civilian officers and employees of the executive branch, other than officers and employees in the Executive Office of the President.

(C) A certification under subparagraph (A) shall take effect upon its publication in the Federal Register and shall identify

(i) the officer or employee covered by the waiver by name and by position, and

(ii) the reasons for granting the waiver.

A copy of the certification shall also be provided to the Director of the Office of Government Ethics.

(D) The President may not delegate the authority provided by this paragraph.

(E)(i) Each person granted a waiver under this paragraph shall prepare reports, in accordance with clause (ii), stating whether the person has engaged in activities otherwise prohibited by this section for each 6-month period described in clause (ii), and if so, what those activities were.

(ii) A report under clause (i) shall cover each 6month period beginning on the date of the termination