41 U.S.C. § 2105 — Penalties and administrative actions

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- Page 69 TITLE 41—PUBLIC CONTRACTS § 2107 formation that a contractor or a person has violated section 2102, 2103, or 2104 of this title shall consider taking one or more of the fol- lowing actions, as appropriate: (A) Canceling the Federal agency procure- ment, if a contract has not yet been award- ed. (B) Rescinding a contract with respect to which— (i) the contractor or someone acting for the contractor has been convicted for an offense punishable under subsection (a); or (ii) the head of the agency that awarded the contract has determined, based on a preponderance of the evidence, that the contractor or a person acting for the con- tractor has engaged in conduct consti- tuting the offense. (C) Initiating a suspension or debarment proceeding for the protection of the Federal Government in accordance with procedures in the Federal Acquisition Regulation. (D) Initiating an adverse personnel action, pursuant to the procedures in chapter 75 of title 5 or other applicable law or regulation. (2) AMOUNT GOVERNMENT ENTITLED TO RE- COVER.—When a Federal agency rescinds a contract pursuant to paragraph (1)(B), the Federal Government is entitled to recover, in addition to any penalty prescribed by law, the amount expended under the contract. (3) PRESENT RESPONSIBILITY AFFECTED BY CONDUCT.—For purposes of a suspension or de- barment proceeding initiated pursuant to paragraph (1)(C), engaging in conduct consti- tuting an offense under section 2102, 2103, or 2104 of this title affects the present responsi- bility of a Federal Government contractor or subcontractor. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3730.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2105(a) ........ 41:423(e)(1). Pub. L. 93–400, § 27(e), 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. 661. 2105(b) ........ 41:423(e)(2). 2105(c) ........ 41:423(e)(3). In subsection (a), the word ‘‘violates’’ is substituted for ‘‘engages in conduct constituting a violation of’’ to eliminate unnecessary words. In subsection (b), the words ‘‘liable to the Federal Government for’’ are substituted for ‘‘subject to’’ for consistency in the revised title and with other titles of the United States Code. In subsection (c)(1), the words ‘‘has violated’’ are sub- stituted for ‘‘has engaged in conduct constituting a vio- lation of’’ to eliminate unnecessary words. § 2106. Reporting information believed to con- stitute evidence of offense A person may not file a protest against the award or proposed award of a Federal agency procurement contract alleging a violation of section 2102, 2103, or 2104 of this title, and the Comptroller General may not consider that alle- gation in deciding a protest, unless the person, no later than 14 days after the person first dis- covered the possible violation, reported to the Federal agency responsible for the procurement the information that the person believed con- stitutes evidence of the offense. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3731.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2106 ............ 41:423(g). Pub. L. 93–400, § 27(g), 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. 663. § 2107. Savings provisions This chapter does not— (1) restrict the disclosure of information to, or its receipt by, a person or class of persons authorized, in accordance with applicable agency regulations or procedures, to receive that information; (2) restrict a contractor from disclosing its own bid or proposal information or the recipi- ent from receiving that information; (3) restrict the disclosure or receipt of infor- mation relating to a Federal agency procure- ment after it has been canceled by the Federal agency before contract award unless the Fed- eral agency plans to resume the procurement; (4) prohibit individual meetings between a Federal agency official and an offeror or po- tential offeror for, or a recipient of, a contract or subcontract under a Federal agency pro- curement, provided that unauthorized disclo- sure or receipt of contractor bid or proposal information or source selection information does not occur; (5) authorize the withholding of information from, nor restrict its receipt by, Congress, a committee or subcommittee of Congress, the Comptroller General, a Federal agency, or an inspector general of a Federal agency; (6) authorize the withholding of information from, nor restrict its receipt by, the Comp- troller General in the course of a protest against the award or proposed award of a Fed- eral agency procurement contract; or (7) limit the applicability of a requirement, sanction, contract penalty, or remedy estab- lished under another law or regulation. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3731.)