41 U.S.C. § 2101 — Definitions

Page 66 TITLE 41—PUBLIC CONTRACTS § 2101 (2) perform analysis or audits, as necessary, of purchase card transactions designed to identify— (A) potentially illegal, improper, or erro- neous uses of purchase cards; (B) any patterns of such uses; and (C) categories of purchases that could be made by means other than purchase cards in order to better aggregate purchases and ob- tain lower prices (excluding transactions made under card-based strategic sourcing ar- rangements); (3) report to the head of the executive agen- cy concerned on the results of such analysis or audits; and (4) report to the Director of the Office of Management and Budget on the implementa- tion of recommendations made to the head of the executive agency to address findings of any analysis or audit of purchase card and convenience check transactions or programs for compilation and transmission by the Di- rector to Congress and the Comptroller Gen- eral. (e) RELATIONSHIP TO DEPARTMENT OF DEFENSE PURCHASE CARD REGULATIONS.—The require- ments of this section shall not apply to the De- partment of Defense. See section 4754 of title 10 for provisions relating to management of pur- chase cards in the Department. (Added Pub. L. 112–194, § 2(a)(1), Oct. 5, 2012, 126 Stat. 1445; Pub. L. 117–81, div. A, title XVII, § 1702(h)(9), Dec. 27, 2021, 135 Stat. 2158.) Editorial Notes AMENDMENTS 2021—Subsec. (e). Pub. L. 117–81 substituted ‘‘section 4754’’ for ‘‘section 2784’’. Statutory Notes and Related Subsidiaries DEADLINE FOR GUIDANCE ON MANAGEMENT OF PURCHASE CARDS Pub. L. 112–194, § 2(c), Oct. 5, 2012, 126 Stat. 1448, re- quired the Director of the Office of Management and Budget to prescribe the guidance required by subsec. (b) of this section not later than 180 days after Oct. 5, 2012. CHAPTER 21—RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN INFORMATION Sec. 2101. Definitions. 2102. Prohibitions on disclosing and obtaining pro- curement information. 2103. Actions required of procurement officers when contacted regarding non-Federal em- ployment. 2104. Prohibition on former official’s acceptance of compensation from contractor. 2105. Penalties and administrative actions. 2106. Reporting information believed to constitute evidence of offense. 2107. Savings provisions. § 2101. Definitions In this chapter: (1) CONTRACTING OFFICER.—The term ‘‘con- tracting officer’’ means an individual who, by appointment in accordance with applicable regulations, has the authority to enter into a Federal agency procurement contract on be- half of the Government and to make deter- minations and findings with respect to the contract. (2) CONTRACTOR BID OR PROPOSAL INFORMA- TION.—The term ‘‘contractor bid or proposal information’’ means any of the following in- formation submitted to a Federal agency as part of, or in connection with, a bid or pro- posal to enter into a Federal agency procure- ment contract, if that information previously has not been made available to the public or disclosed publicly: (A) Cost or pricing data (as defined in sec- tion 3701 of title 10 with respect to procure- ments subject to that section and section 3501(a) of this title with respect to procure- ments subject to that section). (B) Indirect costs and direct labor rates. (C) Proprietary information about manu- facturing processes, operations, or tech- niques marked by the contractor in accord- ance with applicable law or regulation. (D) Information marked by the contractor as ‘‘contractor bid or proposal information’’, in accordance with applicable law or regula- tion. (3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ has the meaning given that term in section 102 of title 40. (4) FEDERAL AGENCY PROCUREMENT.—The term ‘‘Federal agency procurement’’ means the acquisition (by using competitive proce- dures and awarding a contract) of goods or services (including construction) from non- Federal sources by a Federal agency using ap- propriated funds. (5) OFFICIAL.—The term ‘‘official’’ means— (A) an officer, as defined in section 2104 of title 5; (B) an employee, as defined in section 2105 of title 5; and (C) a member of the uniformed services, as defined in section 2101(3) of title 5. (6) PROTEST.—The term ‘‘protest’’ means a written objection by an interested party to the award or proposed award of a Federal agency procurement contract, pursuant to subchapter V of chapter 35 of title 31. (7) SOURCE SELECTION INFORMATION.—The term ‘‘source selection information’’ means any of the following information prepared for use by a Federal agency to evaluate a bid or proposal to enter into a Federal agency pro- curement contract, if that information pre- viously has not been made available to the public or disclosed publicly: (A) Bid prices submitted in response to a Federal agency solicitation for sealed bids, or lists of those bid prices before public bid opening. (B) Proposed costs or prices submitted in response to a Federal agency solicitation, or lists of those proposed costs or prices. (C) Source selection plans. (D) Technical evaluation plans. (E) Technical evaluations of proposals. (F) Cost or price evaluations of proposals. (G) Competitive range determinations that identify proposals that have a reasonable 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-