41 U.S.C. § 2103 — Actions required of procurement officers

Page 67 TITLE 41—PUBLIC CONTRACTS § 2103 chance of being selected for award of a con- tract. (H) Rankings of bids, proposals, or com- petitors. (I) Reports and evaluations of source selec- tion panels, boards, or advisory councils. (J) Other information marked as ‘‘source selection information’’ based on a case-by- case determination by the head of the agen- cy, the head’s designee, or the contracting officer that its disclosure would jeopardize the integrity or successful completion of the Federal agency procurement to which the information relates. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3727; Pub. L. 117–81, div. A, title XVII, § 1702(h)(10), Dec. 27, 2021, 135 Stat. 2158.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2101(1) ........ 41:423(f)(5). Pub. L. 93–400, § 27(f), as added Pub. L. 100–679, § 6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, § 814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, § 1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, § 705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, § 8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, § 4304(a), Feb. 10, 1996, 110 Stat. 662. 2101(2) ........ 41:423(f)(1). 2101(3) ........ 41:423(f)(3). 2101(4) ........ 41:423(f)(4). 2101(5) ........ 41:423(f)(7). 2101(6) ........ 41:423(f)(6). 2101(7) ........ 41:423(f)(2). Editorial Notes AMENDMENTS 2021—Par. (2)(A). Pub. L. 117–81 substituted ‘‘section 3701’’ for ‘‘section 2306a(h)’’. § 2102. Prohibitions on disclosing and obtaining procurement information (a) PROHIBITION ON DISCLOSING PROCUREMENT INFORMATION.— (1) IN GENERAL.—Except as provided by law, a person described in paragraph (3) shall not knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procure- ment contract to which the information re- lates. (2) EMPLOYEE OF PRIVATE SECTOR ORGANIZA- TION.—In addition to the restriction in para- graph (1), an employee of a private sector or- ganization assigned to an agency under chap- ter 37 of title 5 shall not knowingly disclose contractor bid or proposal information or source selection information during the 3-year period after the employee’s assignment ends, except as provided by law. (3) APPLICATION.—Paragraph (1) applies to a person that— (A)(i) is a present or former official of the Federal Government; or (ii) is acting or has acted for or on behalf of, or who is advising or has advised the Fed- eral Government with respect to, a Federal agency procurement; and (B) by virtue of that office, employment, or relationship has or had access to con- tractor bid or proposal information or source selection information. (b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—Except as provided by law, a per- son shall not knowingly obtain contractor bid or proposal information or source selection infor- mation before the award of a Federal agency procurement contract to which the information relates. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3728.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2102(a) ........ 41:423(a). Pub. L. 93–400, § 27(a), (b), as added Pub. L. 100–679, § 6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, § 814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, § 1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, § 705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, § 8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, § 4304(a), Feb. 10, 1996, 110 Stat. 659; Pub. L. 107–347, title II, § 209(d)(4), Dec. 17, 2002, 116 Stat. 2930. 2102(b) ........ 41:423(b). § 2103. Actions required of procurement officers when contacted regarding non-Federal em- ployment (a) ACTIONS REQUIRED.—An agency official par- ticipating personally and substantially in a Fed- eral agency procurement for a contract in excess of the simplified acquisition threshold who con- tacts or is contacted by a person that is a bidder or offeror in that Federal agency procurement regarding possible non-Federal employment for that official shall— (1) promptly report the contact in writing to the official’s supervisor and to the designated agency ethics official (or designee) of the agency in which the official is employed; and (2)(A) reject the possibility of non-Federal employment; or (B) disqualify himself or herself from further personal and substantial participation in that Federal agency procurement until the agency authorizes the official to resume participation in the procurement, in accordance with the re- quirements of section 208 of title 18 and appli- cable agency regulations on the grounds that— (i) the person is no longer a bidder or offer- or in that Federal agency procurement; or (ii) all discussions with the bidder or offer- or regarding possible non-Federal employ- ment have terminated without an agreement or arrangement for employment. (b) RETENTION OF REPORTS.—The agency shall retain each report required by this section for not less than 2 years following the submission of the report. The reports shall be made available to the public on request, except that any part of a report that is exempt from the disclosure re- quirements of section 552 of title 5 under sub- Page 68 TITLE 41—PUBLIC CONTRACTS § 2104 section (b)(1) of that section may be withheld from disclosure to the public. (c) PERSONS SUBJECT TO PENALTIES.—The fol- lowing are subject to the penalties and adminis- trative actions set forth in section 2105 of this title: (1) An official who knowingly fails to comply with the requirements of this section. (2) A bidder or offeror that engages in em- ployment discussions with an official who is subject to the restrictions of this section, knowing that the official has not complied with paragraph (1) or (2) of subsection (a). (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3728.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2103(a) ........ 41:423(c)(1). Pub. L. 93–400, § 27(c), as added Pub. L. 100–679, § 6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, § 814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, § 1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, § 705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, § 8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, § 4304(a), Feb. 10, 1996, 110 Stat. 660. 2103(b) ........ 41:423(c)(2). 2103(c) ........ 41:423(c)(3), (4). § 2104. Prohibition on former official’s accept- ance of compensation from contractor (a) PROHIBITION.—A former official of a Fed- eral agency may not accept compensation from a contractor as an employee, officer, director, or consultant of the contractor within one year after the official— (1) served, when the contractor was selected or awarded a contract, as the procuring con- tracting officer, the source selection author- ity, a member of the source selection evalua- tion board, or the chief of a financial or tech- nical evaluation team in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000; (2) served as the program manager, deputy program manager, or administrative con- tracting officer for a contract in excess of $10,000,000 awarded to that contractor; or (3) personally made for the Federal agency a decision to— (A) award a contract, subcontract, modi- fication of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor; (B) establish overhead or other rates appli- cable to one or more contracts for that con- tractor that are valued in excess of $10,000,000; (C) approve issuance of one or more con- tract payments in excess of $10,000,000 to that contractor; or (D) pay or settle a claim in excess of $10,000,000 with that contractor. (b) WHEN COMPENSATION MAY BE ACCEPTED.— Subsection (a) does not prohibit a former official of a Federal agency from accepting compensa- tion from a division or affiliate of a contractor that does not produce the same or similar prod- ucts or services as the entity of the contractor that is responsible for the contract referred to in paragraph (1), (2), or (3) of subsection (a). (c) IMPLEMENTING REGULATIONS.—Regulations implementing this section shall include proce- dures for an official or former official of a Fed- eral agency to request advice from the appro- priate designated agency ethics official regard- ing whether the official or former official is or would be precluded by this section from accept- ing compensation from a particular contractor. (d) PERSONS SUBJECT TO PENALTIES.—The fol- lowing are subject to the penalties and adminis- trative actions set forth in section 2105 of this title: (1) A former official who knowingly accepts compensation in violation of this section. (2) A contractor that provides compensation to a former official knowing that the official accepts the compensation in violation of this section. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3729.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2104(a) ........ 41:423(d)(1). Pub. L. 93–400, § 27(d), as added Pub. L. 100–679, § 6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, § 814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, § 1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, § 705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, § 8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, § 4304(a), Feb. 10, 1996, 110 Stat. 660. 2104(b) ........ 41:423(d)(2). 2104(c) ........ 41:423(d)(5). 2104(d) ........ 41:423(d)(3), (4). § 2105. Penalties and administrative actions (a) CRIMINAL PENALTIES.—A person that vio- lates section 2102 of this title to exchange infor- mation covered by section 2102 of this title for anything of value or to obtain or give a person a competitive advantage in the award of a Fed- eral agency procurement contract shall be fined under title 18, imprisoned for not more than 5 years, or both. (b) CIVIL PENALTIES.—The Attorney General may bring a civil action in an appropriate dis- trict court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence— (1) an individual is liable to the Federal Gov- ernment for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and (2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. (c) ADMINISTRATIVE ACTIONS.— (1) TYPES OF ACTION THAT FEDERAL AGENCY MAY TAKE.—A Federal agency that receives in-