Procurement Integrity Act

Procurement Integrity Act

The Procurement Integrity Act prohibits the release of source selection and contractor bid or proposal information. Also, a former employee who served in certain positions on a procurement action or contract in excess of $10 million is barred for one year from receiving compensation as an employee or consultant from that contractor.

48 C.F.R. § 3.104-1-11

The post-employment restrictions on receiving compensation are in addition to the post-employment restrictions of 18 U.S.C. § 207. See “Leaving Government.”

Procurement Integrity Outline

1. Disclosing and Obtaining Contractor Bid or Proposal Information or Source Selection Information

1. A present or former employee of, or person acting on behalf of or advising, the U.S. on a procurement, who has or had access to such information shall not disclose it before the award of the contract to which the information relates. (48 CFR 3.104-4(a))

2. No person shall knowingly obtain such information before the award of the contract to which the information relates. (48 CFR 3.104-4(b))

2. Offers of Non-Federal Employment

An official participating personally and substantially in a procurement for a contract in excess of the simplified acquisition threshold ($100,000) who is contacted by a bidder regarding non-federal employment during the conduct of the procurement shall:

1. Report the contact to his supervisor and the DAEO in writing; and

2. Reject the offer; or

3. Disqualify himself in writing to the Head of the Contracting Activity in accordance with 18 U.S.C. § 208 until authorized to resume on grounds that:

1. the offeror is no longer a bidder; or

2. all discussions have terminated without an agreement for employment. (48 CFR 3.104-4(c))

4. This requirement does not apply after the award of the contract or after the procurement has been canceled, although 18 U.S.C. § 208 would still require disqualification on the part of an employee who is administering a contract.

Accepting Compensation from a Contractor

A former official may not accept compensation from a contractor within a year after he served 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 for a procurement for a contract in excess of $10 million awarded to that contractor.

The above restriction also applies to a former official who served as program manager, deputy program manager or administrative contracting officer for a contract over $10 million.

It applies to a former official who made a decision to:

award a contract, modification, subcontract, task order or delivery order, in excess of $10 million; establish overhead or other rates applicable to a contract in excess of $10 million; or approve issuance of a contract payment or payments in excess of $10 million, or pay or settle a claim in excess of $10 million. (48 CFR 3.104-4(d))

Note that this restriction can apply to decisions made after the award of the contract which need not be competitively awarded. The restriction does not apply to accepting compensation from a division or affiliate of the contractor that does not produce the same or similar product or service.

The one-year prohibition on accepting compensation begins:

on the date of selection of the contractor for a former official who served in a position listed in paragraph A at that time, but not on the date of the award of the contract; on the date of the award of the contract for a official who served in a position listed in paragraph A at that time whether or not he was serving at the time of selection; on the last date an official served in a position listed in paragraph B; or on the date a decision listed in paragraph C was made.

Definitions

Contractor bid or proposal information means information not made available to the public and includes:

cost or pricing data; indirect costs and direct labor rates; proprietary information about manufacturing processes, operations or techniques; and information marked by the contractor as “contractor bid or proposal information.”

Source selection information means information not made available to the public and includes:

bid prices; proposed costs or prices from bidders; source selection and technical evaluation plans; technical evaluations, cost or price evaluations, competitive range determinations, rankings of bids, reports of source selection panels; and other information marked as “source selection” based on a determination that its disclosure would jeopardize the procurement.

Application

The prohibitions on disclosing and obtaining procurement information, and on handling offers of non-federal employment apply on January 1, 1997 with respect to every federal agency procurement using competitive procedures.

The post-employment restrictions apply to any former official whose federal employment ended on or after January 1, 1997. Those whose employment ended before January 1, 1997 are subject to the prior restrictions. However, an official who made key pre-award decisions on a contract before January 1, 1997 but who did not leave government until after January 1, 1997 is not covered by either the old or the new restrictions,(1) although the provisions of 18 U.S.C. § 207(a) would apply. 1. An official who serves in a post-award position or makes post-award decisions after January 1, 1997 would be subject to the one-year bar even on a contract that was awarded before January 1, 1997.

References

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