On August 21, 2018, Senator Elizabeth Warren introduced the Anti-Corruption and Public Integrity Act (the Act or S. 3357) in the Senate, which focuses on improving anti-corruption and public integrity laws. While the Bill proposes several changes and updates to various laws, of particular importance to government contractors is the Act's proposed changes to post-employment restrictions.
Currently, 41 U.S.C. § 2104, implemented at FAR 3.104-3(d), limits the scope of a former official's future employment with a contractor. The regulation prohibits former officials from accepting compensation from contractors as employees, officers, directors, or consultants of the contractor for one year after serving in one of three procurement related roles at the federal agency. See 41 U.S.C. § 2104.
First, a former official cannot receive compensation from a contractor within one year after the official "served, when the contractor was selected or awarded a contract, as the procuring contracting officer, the source selection authority, a member of the source selection evaluation board, or the chief of a financial or technical evaluation team in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000[.]" 41 U.S.C. § 2104. Second, the prohibition applies if the former official "served as the program manager, deputy program manager, or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractor[.]" Lastly, the prohibition applies to former officials who:
[P]ersonally made a decision for the federal agency to:
- award a contract, subcontract, modification of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor;
- establish overhead or other rates applicable to one or more contracts for the contractor [ ] valued in excess of $10,000,000;
- approve issuance of one or more contract payments in excess of $10 [million] to that contractor;
- or pay or settle a claim in excess of $10,000 with that contractor.
Although the prohibition on former officials acceptance of compensation from contractor only limits former officials who have been involved in making an award decision or certain other specific procurement-related activities at a federal agency for a one year period,1 Senator Warren's proposal seeks to significantly broaden the current restrictions. Accordingly, pursuant to the Anti-Corruption and Public Integrity Act, companies who have been awarded a contract or license by the federal government will be prohibited from hiring or compensating certain former employees for a four year period. Specifically, the Bill provides:
No company that is awarded a contract or license by the federal government may hire or compensate any former officer or employee in the executive branch of the United States who oversaw any of the company's contracts or licenses (including any procurement officer, any federal employee or official who participated in the contract or license selection, any federal employee or official who determined or signed off on the technical requirements of the contract or license, and any senior government official in the executive branch of the United States employed at the agency that granted the contract or license) during the 4-year period beginning on the date on which the officer terminated employment with the United States.
Anti-Corruption and Public Integrity Act, S. 3357, 115th Congress § 105(c)(3)(A) (2018).
Thus, unlike the current prohibition, Senator Warren's Bill proposes to restrict any former officer or employee who oversaw any of the company's contracts, participated in the contract or license selection or signed off on the technical requirements of a contract. See id. (emphasis added); see also 41 U.S.C. § 2104. Furthermore, the Bill proposes to restrict any senior government official employed at the agency that granted the contract from working or receiving compensation from a Company awarded a contract by the federal government. See id. Most significantly, however, the restrictions proposed in this Bill are for four years, rather than the current one-year prohibition period required under 41 U.S.C. § 2104. Id.
If passed, the Anti-Corruption and Public Integrity Act will constitute a major change to contractors and former federal employees seeking employment in the commercial sector after leaving the federal government. Having just been introduced on the August 21, 2018, the Bill is still in its early phase. Those interested may track the Bill as it moves through Congress here.