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Summary of Seeking & Post-government employment laws and regulations

Provided by Office of Counsel

Published Oct. 16, 2013

Document 2

SUMMARY OF SEEKING
& POST-GOVERNMENT EMPLOYMENT LAWS & REGULATIONS

If after reading the below you have questions or concerns, please contact your ethics

counselor before returning your certification.

SEEKING POST-GOVT EMPLOYMENT:

1. CRIMINAL RESTRICTIONS ON NEGOTIATING EMPLOYMENT.

Federal employees are prohibited from participating personally and substantially in an

official capacity in any particular matter if it will have a direct and predictable effect on their

financial interest, which includes any negotiation or arrangement concerning prospective

employment, and the financial interest of the entity with which they are negotiating or have an

arrangement.

"Particular Matter" - matters that involve deliberation, decision, or action that is focused

on the interests of specific persons or a discrete and identifiable class of persons. These matters

may include a contract, claim, application, judicial or other proceeding, request for a ruling or

other determination, controversy, investigation, or charge. A "particular matter" could even

include legislation or policy-making that is narrowly focused on the interests of a discrete and

identifiable group of parties or organizations, e.g., DoD policy affecting only military aircraft

manufacturers.

"Personal and Substantial" Participation- To participate "personally" means to

participate directly. It also includes the direct and active supervision of the participation of a

subordinate. Participation is substantial if it is of significance to the matter, and may occur

through decision, approval, recommendation, investigation, or advice. One act, such as

approving a critical step, may be substantial, but an entire series of peripheral acts may not be.

"Direct and Predictable Effect" - a close, causal link between any action taken on the

matter and any expected effect of the matter on the potential employer's financial interest. An

effect may be direct even though it does not occur immediately, although effects on the general

economy are not direct. There must also be a real, not speculative, possibility that the matter will

affect the financial interest, but the size of the gain or loss is not relevant.

"Negotiating"- any discussion or communications with the organization or an agent, with

the mutual view of reaching an agreement regarding possible employment. It is not limited to

just discussing specific terms and conditions of employment in a specific position.

Please note that regulations place similar restrictions when you are seeking employment.

Please also note that your disqualification remains in effect until it may be withdrawn or

appropriate authority authorizes your participation.

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2. PROCUREMENT INTEGRITY RESTRICTION ON SEEKING EMPLOYMENT.

DoD personnel may not participate personally and substantially in a DoD procurement

valued at more than $150,000 when seeking employment with a bidder or offeror. The rules

require that personnel file written disqualification statements with the contracting officer, source

selection authority, and immediate supervisor. They must identify the procurement, describe the

nature and specific dates of participation in the procurement, and identify the bidder or offeror

and describe its interest.

DoD personnel must promptly report, in writing, to their supervisors and ethics

officials, any employment contact with a bidder or offeror in a DoD procurement valued at more

than $150,000, even when they promptly reject the employment contact.

"Employment contact" - inquiries regarding potential future employment, including

negotiations, and responses, other than immediate and clear rejections, to unsolicited

communications regarding possible employment. It does not include requesting a job

application, but does include a 2-month period after forwarding a resume unless the possibility of

employment is rejected prior to that time.

"DoD Procurement Valued at More Than $150,000"- DoD acquisition, using

competitive procedures and appropriated funds, for a contract in excess of the simplified

acquisition threshold, currently $150,000.

"Personal and Substantial Participation"- active and significant involvement in any of the

following activities directly related to the procurement:

drafting, reviewing, or approving the specification or statement of work;

preparing or developing the solicitation;

evaluating bids or proposals;

selecting a source;

negotiating price or terms and conditions; or

reviewing and approving the award.

Unless and until you have received written authorization from the Head of the

Contracting Authority, you will remain disqualified.

POST -GOVERNMENT SERVICE EMPLOYMENT RESTRICTIONS

1. 18 U.S.C. 207: CRIMINAL REPRESENTATIONAL RESTRICTIONS

Senior Officials -

"Senior Officials" - Flag and General Officers, and civilian personnel whose basic rate of

pay is at or above 86.5% ofthe basic rate for Executive Schedule Level II (at or above

$155,440.50 in 2012, which amount will be adjusted annually as pay rates change). Officials

who meet this threshold are subject to the restrictions under 18 U.S.C. 207(c) and (f),

summarized immediately below.

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For 1 year after leaving a senior position, they may not make any communications or

appearances on behalf of any other person before any officer or employee of the agency or

agencies in which they served within 1 year prior to leaving the senior position, with the intent to

influence in connection with any matter on which official action is sought by the other person.

See 18 U.S.C. 207( c). You may request a more detailed explanation from your local ethics

counselor.

"Agency:"

For Presidentially-appointed, Senate-confirmed appointees: all of DoD, including

the Military Departments and DoD Agencies.

For Flag and General Officers and all other civilian senior officials: their

component within DoD. Components are each of the Military Departments, DISA,

DIA, DLA, NGA, NRO, DTRA, and NSA. Any DoD entity not part of a component

in the previous list is included in the overall DoD component. For Flag and General

Officers who served outside of their Military Departments during their last year of

service, their agencies are their Military Departments and the other components in

which they served.

In addition, for 1 year after leaving a senior position, they may not aid, advise, or

represent a foreign government or foreign political party with the intent to influence any officer

or employee of any Federal department or agency, or Member of Congress.

See 18 U.S.C. 207(f).

Violations of 18 U.S.C. 207 are subject to punishments under 18 U.S.C. 216, which

include imprisonment, fines, or both.

Very Senior Official (Secretary of Defense)- For 2 years after leaving that very senior

position, they may not make any communications or appearances on behalf of any other person

before any employees in positions on the Executive Schedule in all agencies of the executive

branch, with the intent to influence in connection with any matter on which official action is

sought by the other person.

In addition, for 1 year after leaving a very senior position, they may not aid, advise, or

represent a foreign government or foreign political party with the intent to influence any officer

or employee of any Federal department or agency, or Member of Congress.

See 18 U.S.C. 207(f).

All Personnel -

Forever after terminating Federal service, they may not make a communication or

appearance on behalf of any other person before any officer or employee of any Federal agency

or court with the intent to influence in connection with a particular matter in which they

personally and substantially participated, which involved a specific party at the time of the

participation and representation, and in which the U.S. is a party or has a direct and substantial

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interest.

"Specific Parties" - identifiable parties other than the Federal Government.

For 2 years after terminating Federal service, Government officers and employees

may not make a communication or appearance on behalf of any other person before any officer

or employee of any Federal agency or court with the intent to influence in connection with a

particular matter which they reasonably should have known was actually pending under their

official responsibility within 1 year before they left Federal service, which involved a specific

party at that time, and in which the U.S. is a party or has a direct and substantial interest.

"Official Responsibility" - direct administrative or operating authority to approve,

disapprove, or otherwise direct, Government actions. It includes a supervisor at any level having

responsibility for the actions of a subordinate employee who actually participates in a matter.

For 1 year after terminating Federal service, they may not represent, aid, or advise

someone else on the basis of covered information concerning any ongoing trade or treaty

negotiation in which they participated personally and substantially in their last year of Federal

service.

"Trade Negotiations"- those undertaken pursuant to the Omnibus Trade and

Competitiveness Act of 1988 (19 U.S.C. 2902).

"Treaties" - international agreements that require the advice and consent of the Senate.

"Covered Information" - agency records accessible to the employee but exempt from

disclosure under the Freedom of Information Act.

For 1 year after terminating Federal service, as a private sector Information

Technology Exchange Program assignee, no former assignee shall knowingly represent, or aid,

counsel or assist in representing any other person in connection with any contract with that

agency.

There are exceptions to the restrictions of 18 U.S.C. 207.

2. PROCUREMENT POST-GOVERNMENT EMPLOYMENT RESTRICTIONS

For 1 year after a designated date, covered DoD personnel may not accept

compensation from the prime contractor on a DoD contract valued in excess of$10,000,000.

"Designated Date for Covered Personnel":

Date of selection or award of contract: for service by procuring contracting

officers, source selection authorities, members of source selection evaluation

boards, and chiefs of financial or technical evaluation teams;

Last date of service on the contract: for program managers, deputy program

managers, and administrative contracting officers;

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Date of decision: for officials who personally made any of the following

decisions:

1) to award contracts, subcontracts, or modifications of contracts or

subcontracts, or task or delivery orders in excess of $10,000,000,

2) to establish overhead or other rates valued in excess of $10,000,000,

3) to approve issuance of a contract payment in excess of$10,000,000, or

4) to pay or settle a claim in excess of$10,000,000.

"Valued in Excess of$10,000,000":

contract, including all options: value or estimated value at the time of award;

indefinite-delivery/indefinite quantity or requirements contract: total estimated

value of all orders at the time of award;

any multiple award schedule contract: estimate, unless contracting officer

documents a lower estimate;

Basic Ordering Agreement: value of delivery order, task order or order claims:

amount paid or to be paid in settlement; and

negotiated overhead or other rates: estimated monetary value, when applied to the

Government portion of the applicable allocation base.

They may accept compensation from any division or affiliate of the contractor that does

not produce the same or similar products or services as the entity responsible for the contract.

"Same or Similar"- a product or service must be "dissimilar enough" from that under the

contract to warrant use of the exception.

REQUIREMENT TO REQUEST AN OPINION:

If you will be receiving compensation from a defense contractor within two years of leaving

DoD, you may be required to request a written opinion regarding the applicability of the postemployment

restrictions to your anticipated post-government employer.

This requirement applies to any employee who participated personally and substantially in an

acquisition with a value in excess of $1OM and who serves or served in: (1) an Executive

Schedule position; (2) a Senior Executive Service position; (3) a general or flag officer position;

or (4) in the position of program manager, deputy program manager, procuring contracting

officer, administrative contracting officer, source selection authority, member of the source

selection evaluation board, or chief of a financial or technical evaluation.

Check to see if this requirement applies visit the AGEAR website at

https://www.fdm.armv.mil/AGEAR. DoD personnel required to receive this opinion must

submit the request through this online process.

Rev. 12/30/2011

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