Contacts During a Live Procurement

An acquisition in progress is a closed system by design. Competitors submit information on the understanding that it will not reach one another, and evaluators form judgments on the understanding that those judgments will not leak. A separate statute protects both, and it also addresses the moment at which an evaluator's personal interests begin to point toward one of the competitors.

The Information the Statute Protects

Two categories are closed until award. Contractor bid or proposal information covers material submitted to the government by a competitor, including cost and pricing data, indirect cost rates, proprietary manufacturing and technical information, and any information marked by the contractor as covered by the provision. Source selection information covers the government's own evaluative material.

The second category is defined by list: bid prices before bid opening, proposed costs or prices, source selection plans, technical and cost evaluations, competitive range determinations, rankings, reports and evaluations of source selection panels, and other information designated as source selection information by the agency. The unifying feature is that release would give a competitor an advantage in the pending acquisition.

The prohibitions run in both directions. A present or former official, and a person acting for one, may not knowingly disclose the protected information before award. A person may not knowingly obtain it before award. That symmetry means a competitor who receives material without asking for it is exposed alongside the person who sent it, which is why unsolicited receipt is handled as an incident rather than as a windfall.

The Employment Contact and What It Obliges

A separate provision addresses conversations about future employment. An agency official who is participating personally and substantially in a federal agency procurement above a stated threshold, and who contacts or is contacted by a bidder or offeror in that procurement regarding possible non-federal employment, must promptly report the contact in writing.

The report goes to the official's supervisor and to the designated agency ethics official. It is required whether the approach was invited or unsolicited, and whether or not the official responded. The obligation is triggered by the contact itself, so declining to engage does not remove it, and the writing requirement means an oral mention to a supervisor does not satisfy it.

The threshold matters to the trigger. The provision applies to procurements above a stated value, so approaches connected to smaller acquisitions fall outside it. That does not leave them unregulated: the general conflict of interest statute is not limited by procurement value, and an official negotiating for employment with a bidder is disqualified under it regardless of the size of the contract at issue.

Disqualification and Resumption

Rejection must be in writing and unequivocal. An official who states that no employment discussions will be entertained has closed the question and may continue on the acquisition. An official who wishes to keep the possibility open must withdraw from further participation, and the withdrawal is operational rather than nominal: the matters are reassigned and the official stops receiving the material.

Resumption is possible only where the agency authorizes it, on the conditions the statute sets, which turn on the employment possibility having ended or on the official no longer being in a position where the interest matters. The authorization is a written determination, and it is the document that establishes the official was entitled to return.

The general conflict of interest statute operates alongside. An official negotiating for or holding an arrangement concerning prospective employment has an imputed financial interest in that prospective employer, which disqualifies participation in particular matters affecting it under the framework described in the conflicts and recusal rules. Compliance with the acquisition provision does not answer the criminal provision, and the two have to be satisfied separately.

The Bar on Compensation After Departure

A third provision reaches forward past the official's departure. A former official who served in one of several specified roles on a covered acquisition, or who personally made one of several specified decisions on it, may not accept compensation from the contractor concerned as an employee, officer, director or consultant for a stated period after the relevant event.

The specified roles include the procuring contracting officer, the source selection authority, a member of the source selection evaluation board, the chief of a financial or technical evaluation team, the program manager and the administrative contracting officer. The specified decisions include awarding a contract, subcontract, modification or task order above a stated value, establishing overhead rates, approving contract payments and settling claims.

The bar is narrower than it appears in one respect and wider in another. It attaches to compensation from the particular contractor rather than to employment in the industry, and a division-based exception exists in defined circumstances. But it applies without regard to what the new role involves, so an entirely unrelated position with that contractor is still within it. It runs alongside, and does not replace, the general restrictions described in the post-employment bars.

Timing is measured from the covered event rather than from the departure date. An official who made a qualifying decision and then remained in post for a further period may find that much of the bar has already run by the time of departure. Conversely, a decision made shortly before leaving carries the full period forward, which is why the analysis identifies the decision rather than the resignation.

Penalties and Contractual Remedies

The consequences fall on individuals, on organizations and on the contract itself. Individuals face civil penalties, and knowing and willful conduct in defined categories carries criminal penalties. Organizations face higher civil penalties and may be suspended or debarred. Those personal consequences do not depend on the acquisition having been affected.

The contract is separately exposed. Before award, the agency may cancel the procurement. After award, it may rescind the contract and recover amounts paid, or take other administrative action, following a determination made under the acquisition regulation. Because the remedy reaches the contract rather than only the individual, a competitor's compliance program is the practical control, and the disclosure obligations of any registrants involved continue under the lobbying contact rules, which treat contract administration as a covered subject.