Hiring Current and Former US Government Employees Policy

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POLICY

It is GovC’s policy to comply with all laws concerning the recruitment, hiring, and employment of current and former US Government (USG) employees, either as employees or consultants. GovC employees must obtain prior approval from Human Resources before discussing or offering employment or consulting opportunities to any current or former USG employee.

PURPOSE AND SCOPE

Most current and former Government Officials (defined below), including military officers, are subject to federal conflict of interest laws and regulations. These laws and regulations restrict how GovC may recruit and hire these individuals and may also limit the activities they can perform for GovC as employees, consultants, or representatives. Violations of these laws can have serious consequences for GovC, including civil and criminal fines, contract rescission, and suspension and debarment. When considering hiring US Government employees, there are three threshold questions: Can we talk? Can we hire? Can we use?

DEFINITIONS

“Ethics Advisory Opinion” means a written opinion provided to a current or former Government Official upon his/her request by his/her agency’s ethics official regarding the restrictions that apply to his/her post-government employment.

“Government Official” means any officer or employee or person acting for or on behalf of the executive branch of the United States, or any independent Federal agency, in any official function, including those who have been nominated or are awaiting appointment to such a position.

“Senior Government Officials” means Executive Schedule employees; Government Officials with a rate of basic pay at least 86.5% of the basic rate of pay for Level II of the Executive Schedule; active duty military officers with a pay grade of O-7 and above; certain Presidential and Vice Presidential appointees; and certain private sector individuals assigned to an agency.

“Very Senior Government Officials” means Vice President of the US; certain Presidential and Vice Presidential appointees; Government Officials in a position compensated at a rate of pay equal to Level I of the Executive Schedule; or employed in a position in the Executive Office of the President at a rate of pay equal to Level II of the Executive Schedule.

“Particular Matter” means a matter focused on the interests of a specific person or a discrete and identifiable class of persons, such as a specific defense contract, a claim or controversy, investigation, judicial or administrative proceeding, or arrest. It may also include legislative or policy making activities that are narrowly focused.

“Personally and Substantially” means direct involvement that is of significance to a specific matter requiring the exercise of judgment and discretion. Contract negotiators, program managers, source selection team members, for example, all contribute Personally and Substantially to the given matter.

SUMMARY OF LEGAL PROHIBITIONS

The laws imposing conflict of interest restrictions on current and former Government Officials are complex. The below discussion is not intended to cover every aspect of these laws, but to explain the basic prohibitions.

Restrictions on Employment Discussions with Current Government Officials: Government Officials are prohibited from participating Personally and Substantially on a Particular Matter on the Government’s behalf, in which the Government Official has a personal financial interest, or in which the Government Official’s spouse, minor child, or general partner or organization/entity in which the Government Official serves as an officer, director, trustee, general partner, or employee has a financial interest. This includes where the Government Official or related person/entity is negotiating for prospective employment. For example, as soon as an offer of employment is made to a Government Official by a contractor, the Government Official is disqualified from continuing to work Personally and Substantially on any Particular Matters relating to that contractor unless the Government Official responds with an unqualified rejection of the offer. Department of Defense (“DoD”) employees are required to provide written notice of the disqualification to the DoD. The Procurement Integrity Act establishes additional requirements where a Government acquisition official is involved. A Government Official participating Personally and Substantially in a Federal agency procurement in excess of the simplified acquisition threshold and who contacts or is contacted by a bidder regarding possible employment must promptly report the fact of the contact in writing to his supervisor and agency ethics official and either reject the employment or disqualify himself from further personal and substantial participation in the procurement via a written disqualification notice to his immediate supervisor, as well as his Contracting Officer, and Source Selection Authority.

Hiring Ban

The Procurement Integrity Act prohibits a former Government acquisition official from accepting compensation from a contractor for a period of one year after (1) serving in any of the following positions on a contract over $10 million awarded to the contractor: procurement contracting officer, source selection authority, source selection evaluation board member; chief of a financial or technical evaluation team; program manager; deputy program manager; or administrative contracting officer; or (2) personally making any of the following decisions: decision to award a contract, subcontract, modification or order in excess of $10 million to that contractor; decision to establish overhead or other rates applicable to that contractor that are valued in excess of $10 million; decision to approve issuance of contract payments in excess of $10 million; or decision to pay or settle a claim in excess of $10 million with that contractor. However, the law permits former Government acquisition officials to accept employment from a distinct division or affiliate of a contractor that does not produce the same or similar product or service as was produced under the contract.

Restrictions on Representational Activities of Current Government Officials

Current Government Officials may not receive compensation of any kind to represent another party before the Government in connection with any Particular Matter. Government Officials on terminal leave are considered current Government Officials.

Restrictions on Representational Activities of Former Government Officials

Former Government Officials are prohibited from representing a new employer before their former agency on Particular Matters involving specific parties for defined cooling-off periods that vary according to the former Government Official’s involvement and seniority.

Life-Time Restriction

Former Government Officials are permanently barred from representing their new employer to their former agency for matters on which they were Personally and Substantially involved.

Two Year Restriction

Former Government Officials may not represent their new employer to their former agency on matters that were pending under their official responsibility in their last year of service for two years after leaving federal service.

One Year Restriction

Former Senior Government Officials and Very Senior Government Officials may not contact their former agency on Particular Matters that are pending or of substantial interest to the agency for one year after leaving federal service. Prior participation in the matter by the Government Official is not required. Former Very Senior Government Officials are also prohibited from contacting any executive schedule employee of any agency on behalf of their new employer.

Note that none of these restrictions preclude the former Government Official from working for a new employer on any project so long as the Government Officials is doing so “behind the scenes” (i.e., the Government Official is not appearing before or communicating with the Government on the contractor’s behalf).

PROCEDURES

All employees must consult with, and gain the approval of, Human Resources before discussing any possible employment or consulting opportunities with a current or former Government Official, even if the discussions are casual in nature. If a Government Official initiates a conversation about potential employment or consulting opportunities with GovC, postpone the discussion until you have spoken to Human Resources.

Prior to pursuing any employment or consulting discussions with a current or former Government Official, the GovC hiring manager must obtain from the Government Official (1) a resume, (2) GovC’s Current and Former USG Personnel Employment Questionnaire and Certification published on the extranet, and (3) an Ethics Advisory Opinion detailing the restrictions on his/her post-Government employment or any applicable disqualifications or waivers that have been approved by the Government Officials agency, or both. The GovC hiring manager must also provide a copy of the job description for which the Government Official is being considered.

The GovC hiring manager will submit all such documentation to Human Resources who will work in conjunction with Business Unit hiring managers to determine whether employment of any particular current or former Government Official is appropriate. When making this determination, consideration must be given to the nature of the likely assignments this individual will receive and whether the individual’s history of government employment might render the candidate ineligible for the position for some period of time, or restrict his ability to perform necessary parts of the job. No hiring decisions may be made until a decision has been made by Human Resources regarding the candidate’s conflict of interest and employment restrictions. Human Resources will seek legal advice on a case by case basis as required from the Vice President & General Counsel North America, or an approved law firm with subject matter expertise in this area.

If the former Government Official is offered employment, the hiring manager shall submit the Current and Former USG Personnel Employment Questionnaire and Certification and the Ethics Advisory Opinion to the applicable HR representative for inclusion in the master personnel file along with the applicant’s other employment documentation (e.g., application, offer letter, I-9, etc).

It is the responsibility of the GovC hiring manager to ensure that (a) any former Government Official does not perform a job function at GovC that is precluded by law or regulation so long as that former Government Official is managed by that hiring manager and (b) the next manager of the former Government Official is aware of any restrictions on that former Government Official. In general, it is the responsibility of any manager of a former Government Official to understand any and all restrictions of former Government Officials under their management and ensure that they are not performing a function that is precluded by law or regulation. Similarly, it is the responsibility of the former Government Official to bring to the attention of their manager any restrictions that they may have and any matter that he/she believes may subject them to permanent restrictions.

If you need to determine rate of pay for employees who are either Level I or Level II of the Executive Schedule, go to the US Office of Personnel Management website (www.opm.gov), go to the Salary Tables and Related Information page and look for “Executive Schedule”.


REFERENCES

  • Ethics Reform Act (18 U.S.C. § 201 et. Seq.) regulating communications to or appearances before an agency with the intent to influence by former Government employees.
  • Implemented by Office of Government Ethics (“OGE”) Regulations at 5 C.F.R. § 2637 and 2641
  • Procurement Integrity Act (41 U.S.C. § 2104) regulating the relationship between USG employees involved in procurement process and contractors
  • Implemented by FAR in subpart 3.104.
  • Implemented by DFARS 203.104 for DoD
  • DFARS 203.171-3 implemting Section 847 of the National Defense Authorization Act for Fiscal Year 2008
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