The Department of Defense (DOD) today proposed to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require every contractor responding to a DOD solicitation to broadly represent that certain former DoD officials employed by the contractor are in compliance with the statutory and regulatory restrictions placed on the activities of former Government employees. Under the proposed rule, this representation will be made to the Government at the time of contract award, and will apply to commercial and non-commercial items.
The proposed rule is a follow-on to an earlier 2009 rule, codified at DFARS 252.203-7000, that requires DOD contractors to confirm that "covered DOD officials" employed by the contractor have obtained written ethics guidance from the appropriate DOD ethics counselor. Like the 2009 rule, the new rule proposed today applies to "covered DOD officials." This term encompasses DOD personnel who leave or left federal service on or after January 28, 2008, and who meet either of the following two service criteria:
- Former General or Flag officers, members of the Senior Executive Service, and Presidential Appointees who participated personally and substantially in an acquisition with a value in excess of $10 million, or
- Former DOD employees who served in one of several specified positions including program manager, contracting officer, source selection authority or source selection evaluation board member for a contract with a value in excess of $10 million.
The rule proposed today requires every contractor responding to a DOD solicitation to represent, "to the best of its knowledge and belief, that all covered DoD officials employed by or otherwise receiving compensation from the offeror are presently in compliance with" DFARS § 252.203-7000, as well as the following laws:
- 18 U.S.C. § 207, which prohibits a former Government employee from communicating with, or appearing before, the Government with respect to certain matters. The scope and length of the prohibition varies depending on the former employee's involvement in the matter and his or her seniority as a Government employee-former employees that participated "personally and substantially" in the matter during their Government service are subject to a permanent restriction, while former employees with "official responsibility" for the matter are subject to a two-year restriction. Former "senior" employees are subject to a one-year restriction with respect to any matter before their former agency.
- The Office of Government Ethics guidance on 18 U.S.C. § 207, which is codified at 5 CFR Part 2641. Note that the proposed rule cites to "5 CFR Parts 2637 and 2631," neither of which exist; Part 2637 was replaced by Part 2641 in 2008, and the proposed rule presumably refers to the latter set of regulations.
- FAR 3.104-2, which implements the Procurement Integrity Act, 41 U.S.C. § 2104, and prohibits a former official from receiving compensation from a defense contractor for a one year period if the official performed certain procurement-related duties involving the contractor with respect to contract actions valued in excess of $10 million.
The proposed rule is intended to remedy defects identified in a GAO study analyzing the number of former DOD officials employed by defense contractors and the compliance of those officials with DOD post-employment restrictions. The findings of the study were detailed in "Defense Contracting: Post-Government Employment of Former DOD Officials Needs Greater Transparency," GAO-08-485 (May 2008).