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S UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENVIRONMENTAL RESEARCH LABORATORY
% 200 S w- SSTH STREET
CORVALLIS, OREGON 97333
December 11, 1992
SUBJECT: Initial Ethics Orientation
FROM: Thomas A. Murphy ]/!/\
Deputy Ethics Official r^y^^™'
TO: All EPA Employees
In April 1992, the Office of Government Ethics issued regulations which
require ethics training be provided to employees in executive branch
agencies. In order to fulfill that requirement, EPA is providing the
attached documents to enable employees to familiarize themselves with
the ethics rules that govern us. This is especially important at this
time, since one of the documents provided is the new Standards of
Ethical Conduct for Employees of the Executive Branch that become
effective on February 3. 1993. These Standards have important
differences from current ethical standards in provisions such as those
dealing with gifts.
You will find 4 documents contained in this package:
(1) A copy of part I of the Executive Order 12674,
Principles of Ethical Conduct for Government Officers and
Employees;
(2) List of EPA Designated Ethics Officials;
(3) Ethics Advisory 92-19, Understanding Procurement
Integrity; and
(4) Standards of Ethical Conduct for Employees of the
Executive Branch.
The cover memorandum from Gerald Yamada, EPA's Designated Agency Ethics
Official, explains that you may use at least one hour of official time
to review these materials. I urge you to take the time to read these
documents, familiarize yourself with the standards of conduct, and apply
them consistently in all of your official duties.
On January 12, 1993, at 10:30 am in the Lecture-Training Room, I will
present a short briefing on the key provisions of these documents,
followed by a period for questions and discussion. All Federal
employees are welcome. My briefing will not be able to cover all
aspects of these documents. Therefore, I strongly recommend that you
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not rely on the briefing as your primary source of information on
ethical standards, but that you review these documents carefully,
especially those sections that apply to your particular job. I am
available as Deputy Agency Ethics Official at any time to discuss
questions or concerns you may have regarding these standards.
Attachments
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 0 9 199?
OFFICE OF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: Initial Ethics Orientation
FROM:
Gerald H. Yam
Principal Dep
Designated Acj )
~
TO:
All Employees
The purpose of this package is to inform all EPA employees
of the applicable Standards of Ethical Conduct for Employees of
the Executive Branch. These are new Government-wide rules that
were published on August 7, 1992, by the Office of Government
Ethics based on the President's Executive Order 12674. They
apply to each and every one of us.
If you have questions about these materials or what conduct
is and is not permitted, you should contact your Deputy Ethics
Official (DEO). The names and phone numbers of the DEOs are
included in a list that is part of the attached package.
You may use at least one hour of official time to review
these materials. In addition, employees at Headquarters can
attend a 3-hour ethics course, which will be available every
three months through the EPA Training Institute.
All employees are to read this package to familiarize
themselves with the ethics rules that govern us. Again, the
materials include the following:
(1) A copy of part I of Executive Order 12674,
Principles of Ethical Conduct for Government Officers
and Employees;
(2) A copy of 5 C.F.R. §2635, the Standards of Ethical
Conduct for Employees of the Executive Branch
(57 Federal Register 11886 - 11891, published August 7,
1992);
Prix id on Recycled Pjper
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2
(3) The names, titles, office addresses, arid phone numbers
of the designated agency ethics official (DAEO) and
other agency ethics officials available to answer
questions regarding ethics; and
(4) A brief discussion of the "procurement integrity"
provisions at 41 U.S.C. §423.
You should contact your DEO or this office at (202)260-4550
if you have any questions about this procedure.
Attachments
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Executive Order 12674 of April 12, 1989
Principles of Ethical Conduct
for Government Officers and Employees
11/92
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Federal RegUte / Vol. 54. No. 711 Fridiy. April 14.1999 / Presidential Documents
Presidential Documents
Executive Order 12874 of April 12. 1919
Principles of Ethical Conduct for Government Officers and
Employees
By virtue of the authority vested la me ss Preiident by the Constitution and
laws of lbs United Statas of America. and in order to establish fair and
exacting standards of sthieal conduct for all executive branch employees, it is
hereby ordered as follows:
PART I—PRINCIPLES OF ETHICAL CONDUCT
Section 101. Princip/ii of Ethical Conduct To ensure that every citixen can
hsve complete confidence in the integrity of the Federal Government, each
Federal employee shall respect and adhere to the fundamental principles of
ethical service as implemented in regulations promulgated under sections 201
and 301 of this order
(a) Public service is a public trust requiring employees to place loyalty to the
Constitution, the laws, end ethical principles above privete gain.
(b) Employees shall not hold financial Interests that conflict with the conscien-
tious performance of duty.
(c) Employees shall not engage in financial transactions using nonpublic
Covenuhent information or allow the improper use of such informetion to
further any private interest.
(d) An employee shaD not except pursuant to such reasonsble exceptions as
are provided by regulation. soUeit or aecept any gift or other item of monetary
< value from any person or entity — t»i«n» official action from, doing business
with, or conducting activities regulated oy the employee s agency, or whose
interests may be substantially affected by the performance or nonperformance
of the employee's dudes.
(e) Employees shell put forth honest effort In the performance of their duties.
(0 Employees shall make no unauthorised commitments or promises of sny
kind purporting to bind the Government.
(f) Employees shall not use public offloe for private gain.
(h) Employees shall aet impartially and not give preferential treatment to sny
private organization or Individual.
m Employees shall protect end conserve Federal property and shall not use it
for other than authorised activities.
(I) Employeee shall not engage In outside employment or ectiviUee. Including
seeking or negotiating for employment, that conflict with official Government
duties end responsibilities.
(k) Employeee shall disclose waete. freed, abuse, and corruption to appropri-
ate authorities.
(I) bnployees shall satisfy In good faith their obligations ss citizens. including
all )ust financial obligations, especially those—such ss Federal State, or local
taxes that are Imposed by law.
(m) Employees shell sdhere to all laws and regulations that provide equsl
opportunity for all Americans regardless of race, color, rellgioa sex. national
origin, age. orhandicap.
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( i rwiaenlitl Docuncnii
(n) Employee* thai! endeavor to avoid iny aetioni cretung ihe appttr;
that Ihey art violating the law or the ethical itandards promulgated purtu
to this order.
S«c 102. Limitations on Outtidt Eomtd Income. No employee who Is appoint-
ed by the Preaident to a full-time nonearttr position in the executive branch,
including all full-time employee! in the While House Office and the Office of
Policy Development shall receive any earned income (or any outside employ*
ment or activity perforated during that Presidential appointment.
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Fcdacal Reflh/Vel S4. No. 71 I Friday. April 14. 1989 / Praajdeniial Docmbcsu
in Dec »«m
run MM 11 J* «a|
BRfcq cod* rn-01-M
(e) '^pedal Government employee" muni a special Government-employe as
defined In IB U.S.C. 202(a).
See. 504. fudicial Review. This order is intended only to improve the interna,
management of the executive branch and is not intended to create any right or
benefit, rabstantire or procedural, enforceable at law by a party against the
United States, its agencies, lie officers, or any person.
THE WHITE HOUSE*
Aprft a M$f.
Utorial note For the Pmidini'i mttiaga 10 tfct Coigrau «nd a fact ihttL both dated April 12.
im tha Wttkly Compilation of Pmidtntiol Ooettmino (voL 24. no. IS).
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List of Designated Ethics Officials
11/92
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Paul G. Keough
Deputy Regional Adninistrator
U. S. EPA-Region 1
John F. Kennedy Federal Building
One Congress Street
Boston, MA 02203
617-565-3402
William j. Muszynski, P.E.
Deputy Regional Adninistrator
U. S. EPA-Region 2
Jacob K. Javits Federal Building
26 Federal Plaza
New York, NT 10278
212-264-0396
Stanley L. Laskowski
Deputy Regional Adninistrator
U. S. EPA-Region 3
841 Chestnut Building
Philadelphia, PA 19107
215-597-9812
Patrick M. Tobin
Deputy Regional Administrator
U. S. EPA-Region 4
345 Court land Street, NE
Atlanta, GA 30365
404-347-4728
Veldas V. Adamkus
Regional Administrator
U. S. EPA-Region 5
77 Uest Jackson Boulevard
Chicago, IL 60604-3507
312-886-9851
Buck J. Wynne
Regional Administrator
U. S. EPA-Region 6
First Interstate Bank Tower at Fountain
1445 Ross Avenue Suite 1200
Dallas, TX 75202-2733
214-655-2100
Morris Kay
Regional Adninistrator
u. S. EPA-Region 7
726 Minnesota Avenue
Kansas City, KS 66101
913-551-7006
Jack W. McGrau
Acting Regional Adninistrator
U. S. EPA-Region 8
999 18th Street Suite 500
Denver, CO 80202-2405
303-293-1603
John C. Wise
Oeputy Regional Adninistrator
U. S. EPA-Region 9
75 Hawthorne Street
San Francisco, CA 94105
415-744-1001
Gerald A. Emison
Deputy Regional Adninistrator
U. S. EPA-Region 10
1200 Sixth Avenue
Seattle, WA 98101
206-553-5811
Harley f. laing
Regional Cornel
U. S. EPA-Region 1
John F. Kennedy Federal Building
One Congress Street
Boston, NA 02203
617-565-3451
Douglas R. Blazey
Regional Counsel
U. S. EPA-Region 2
Jacob K. Javits Federal Building
26 Federal Plaza
Hew York, NY 10278
212-264-1017
Narcia E. Nulkey
Regional Counsel
U. S. EPA-Region 3
841 Chestnut Building
Philadelphia, PA 19107
215-597-9822
John R. Barker
Regional Cowsel
U. S. EPA-Region 4
345 Courtland Street, NE
Atlanta, CA 30365
404-347-2256
Gail C. Ginsberg
Regional Coirael
U. S. EPA-Region 5
77 Uest Jackson Boulevard
Chicago, IL 60604-3507
312-886-6775
George R. Alexander, Jr.
Regional Cowsel
U. S. EPA-Region 6
First Interstate Bank Tower at Fountain
1445 Ross Avenue Suite 1200
Dallas, TX 75202-2733
214-655-2110
Martha R. Steincanp
Regional Counsel
U. S. EPA-Region 7
726 Minnesota Avenue
Kansas City, KS 66101
913-551-7010
Thomas A. Speicher
Regional Cornsel
U. S. EPA-Region 8
999 18th Street Suite 500
Denver, CO 80202-2405
303-294-7550
Nancy J. Marvel
Regional Cornel
U. S. EPA-Region 9
75 Hawthorne Street .
San Francisco, CA 94105
415-744-1364
Jackson L. Fox
Regional Coins el
U. S. EPA-Region 10
1200 Sixth Avenue
Seattle, UA 98101
206-553-1073
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Diane N. Bazzle
Director
Staff Office Executive Support Office
(A-101)
202-260-4057
John C-. ChamberI in
Director
Office of Adninistration
(PM-217)
202-260-8400
Henry B. Frazier III
Chief Judge
Office of Administrative
Law Judges
(A-110)
202-260-4860
Willis E. Greenstreet
Director (W)-20)
Office of Actninistration &
Resources Management
DTP, NC 27711
919-541-2258
Dan J. Rondeau
0 i rector
Office of CiviI Rights
(A-105)
202-260-4575
Donald C. Barnes
Di rector
Science Advisory Board
(A-101)
202-260-4126
Leon H. Hampton, Jr.
Di rector
Office of Small & Disadvantaged
Business Utilization
(A-149C)
703-305-7777
Abby J. Pirnie
Di rector
Office of Cooperative
Environmental Management
(A-101F)
202-260-9741
Laurie D. Gooinan
Associate Administrator
for Regional Operations ft
State/Local Relations
< HI 501)
202-260-4719
William M. Henderson
Director
Office of Adninistration ft
Resources Management
Cincinnati, OH 45268
513-569-7910
David P. Ryan
Comptroller
Office of the Comptroller
(PM-225)
202-260-9674
Kenneth F. Dawsey
Director
Office of Hunan Resources
Management
(PM-224)
202-260-4467
Alvin M. Pesachowitz
Director
Office of Information Resources
Management
(PM-211)
202-260-4465
Herbert H. Tate, Jr.
Assistant Adninistrator
for Enforcement
CLE-133}
202-260-4134
Patrick H. Ouinn
Associate Administrator
for Congressional &
Legislative Affairs
(A-103)
202-260-5200
Carl S. Gaglvjrdi
Acting Associate Administrator
for Communicat ions, Education ft
Public Affairs
(A-107)
202-260-7963
Timothy B. Atkeson
Assistant Administrator
for International Activities
(A-106)
202-260-4870
Edward J. Hanley
Deputy Assistant Administrator
for Administration &
Resources Management
(PM-208)
202-260-1151
ICaren Kucik
Attorney Advisor
Office of General Counsel
(LE-132K)
202-260-4550
Thomas Oarner
Contracts Attorney
Office of General Counsel
Cincinnati lab
513-569-7917
Anthony G. Beyer
Contracts Attorney
Office of General Cocnsel
RTP Lab
919-541-3047
Richard D. Morgenstern
Acting Assistant Administrator
for Policy Planning ft
Evaluation
(PH-219)
202-260-4332
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Arthur T. Koines
Associate Director
Office of Strategic Planning ft
Environmental Data
(PH-222)
202-260-4030
Maryann B. Froehlich
Acting Director
Office of Policy Analysis
(PM-221)
202-260-4034
Thomas E. Kelly
Director
Office of Regulatory
Management ft Evaluation
(PM-223)
202-260-4001
Anna H. virbick
Deputy Inspector General
Office of Inspector General
(A-109)
202-260-1112
Martha G. Prothro
Deputy Assistant Adninistrator
for Water
(UH-556)
202-260-5700
James R. Elder
Director
Office of Ground Water &
Drinking Water
(WH-550)
202-260-5543
Tudor T. Davies
Di rector
Office of Science ft
Technology
(WH-551)
202-260-5400
Michael 6. Cook
Director
Office of Wastewater
Enforcement ft Compliance
(WH-546)
202-260-5850 _
Robert H. WayIend, III
Director
Office of Wetlands, Oceans ft
Watersheds
(WH-556F)
202-260-7166
Richard Guimond
Oeputy Assistant Adninistrator
for Solid Waste ft
Emergency Response
(OS-100)
202-260-4610
Henry l. Longest, II
Director
Office of Emergency ft Remedial
Response (Siperfund)
(OS-200)
703-603-8700
Sylvia K. Lowrance
Director
Office of Solid Waste
(OS-300)
202-260-4627
David W. Ziegele
Director
Office of Undergrouid
Storage Tanks
(OS-400W)
703-308-8850
Bruce N. Diamond
Director
Office of Waste Programs
Enforcement
(OS-S00)
202-260-4814
Michael H. Shapiro
Oeputy Assistant Administrator
for Air ft Radiation
(ANR-443)
202-260-7403
Eileen B. Claussen
Director
Office of Atmospheric ft
Indoor Air Programs
(6201J)
202-233-9140
John S. Seltz
Director (MD-10)
Office of Air Quality
Planning ft Standards
RTP, NC 27711
919-541-5616
Richard 0. Wilson
Director
Office of Mobile Sources
(ANR-455)
202-260-7645
Margo T. Oge
Director
Office of Radiation Programs
(ANR-458)
202-233-9320
Victor J. Kins
Deputy Assistant Adninistrator
for Prevention, Pesticides ft
Toxic Substances
(TS-788)
202-260-2910
Michael M. Stahl
01 rector
Office of Compliance Monitoring
(EN-342)
202-260-3807
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Douglas D. Campt
Director
Office of Pesticide Programs
(H7501C)
703-305-7090
Mark A. Greenwood
D i rector
Office of Pollution Prevention & Toxics
(TS-792)
202-260-3810
John H. Skinner
Deputy Assistant Adninistrator
for Research I Development
(RD-672)
202-260-7676
Peter U. Preuss
Director
Office of Technology Transfer &
Regulatory Support
(H8105)
202-260-7609
Calvin O. Lawrence
0 i rector
Center for Environmental Research
Information
Cincinnati, OH 65268
513-569-7391
Robert E. Menzer
Acting Director
Office of Exploratory Research
(RD-675)
202-260-5750
Ken Sexton
Di rector
Office of Health Research
(RD-683)
202-260-5900
Lawrence W. Reiter
Director (MD-51)
Health Effects Research Laboratory
RTP, NC 27711
919-541-2281
Courtney Riordan
Director
Office of Environmental Processes &
Effects Research
(RD-682)
202-260-5950
Norbert A. Joworski
Di rector
Environmental Research Laboratory
Narragansett, RI 02882
401-782-3011
Rosemarie C. Russo
Director
Environmental Research Laboratory
Athens, GA 30613
404-546-3500
Robert E. Menzer
Director
Environmental Research Laboratory
Gulf Breeze, FL 32561
904-934-9208
John C. Puzak
Acting Director
Environmental Research Laboratory
Duluth, MM 55804
218-720-5500
Thomas A. Murphy
Director
Environmental Research Laboratory
200 Southwest 35th Street
Corvallis, OR 97333
503-754-4601
Clinton W. Hall
Director
Robert S. Kerr Environmental
Research Laboratory
Ada, OK 74820
405-332-8800
Alfred W. Lindsey
Director
Office of Environmental Engineering &
Technology Demonstration
(RD-681)
202-260-2600
Frank T. Princiotta
Director
Air & Energy Engineering
Research Laboratory
RTP, NC 27711
919-541-2821
E. Timothy Oppelt
Director
Risk Reduction Engineering Laboratory
Cincinnati, Oh 45268
513-569-7418
William H. Farland
Director
Office of Health t Environmental
Assessment
(RD-689)
202-260-2600
Lester D. Grant
Director (KD-52)
Environmental Criteria &
Assessment Office
RTP, NC 27711
919-541-4173
Terrance Harvey
Director (EC-20)
Envirormental Criteria &
Assessment Office
Cincinnati, OH 45268
919-541-4173
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H. Matthew Bills
Acting 01 rector
Office of Modeling, Monitoring Systems,
& Quality Assurance
(RD-680)
202-260-5767
Gary J. Foley
Director (HD-75)
Atmospheric Research & Exposure
Assessment Laboratory
RTP, NC 27711
919-541-2106
Thomas A. Clark
Director (MD-S91)
Environmental Monitoring Systems
Laboratory
Cincinnati, OH 45268
513-569-7301
Gareth Pearson
Director (MD-GDC)
Environmental Monitoring Systems
Laboratory
U. S. EPA, P. 0. Box 93478
.Las Vegas, NV 69193
702-798-2525
Calvin 0. Lawrence
Acting Director
Office of Senior Research Official
Cincinnati, OH 45268
513-569-7391
Gary J. Foley
Acting Director
Office of Senior Research Official
RTP, NC 27711
919-541-2106
ETHICS PROGRAM - 202-260-4550PH 202-260-0020FAX
Gerald h. Yamada
Principal Deputy General Counsel
Designated Agency Ethics Official
Office of General Counsel
LE-130
202-260-8064
Donne11 Nantkes
Senior Attorney • OGC
Alternate Agency Ethics Official
Office of General Counsel
LE-132K
202-260-4556
Karen Kucik
Attorney/Advisor • OGC
Deputy Ethics Official for OGC
Office of General Counsel
LE-132K
202-260-4557
Francis Bonds
Legal Technician
Office of General Counsel
LE-132K
202-260-4550
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Procurement Integrity
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(i
\
m,
| UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
OCT 9 1992
OFFCEOF
OENE RAl COUNSEL
ETHICS ADVISORY 92-19
SUBJECT: Understanding Procurement Integrity
FROM: Gerald H. Yamada
Designated
Principal Di
TO: All EPA Employees
Z. INTRODUCTION
The Federal Procurement Policy Act (41 U.S. Code 423) and
implementing regulations'at 48 C.F.R. §3.104 prohibit certain
government employees (Procurement Officials) involved in a
particular procurement of property or services from soliciting or
accepting employment, money, or gifts from a competing contractor
during the course of the procurement. In addition, they prohibit
the disclosure of certain procurement sensitive information to
persons who are not authorized to receive the information.
Finally, they prohibit certain activities by a former employee
assisting in negotiations on behalf of a competing contractor
leading to the award or modification of a- procurement that the
former employee had worked on while at EPA and assisting in
contract performance for a period of two years from the former
employee's last participation in the procurement. These pro-
hibitions are is addition to the statutory (18 U.S.C. SS 201-209)
and regulatory (40 C.F.R. Part 3# or effective Feb. 3, 1993,
5 C.F.R. -Fart 2635) standards of conduct that apply to all
federal government employees.
Sanctions for violating the procurement integrity provisions
include personnel actions, up to and including removal from
Federal service, contract actions, and civil and criminal
penalties. Civil penalties include fines for individuals of as
much as $100,000 and fines for violating contractors of as much
as $1,000,000. Criminal penalties include imprisonment for not
more than 5 years, fines or both. A copy of 48 C.F.R. S3.104 is
attached.
Prim td en Rtcycitd Paptr
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2
II. PROCUREMENT OFFICIAL PROHIBITIONS
With a few exceptions a Procurement Official, during the
conduct of an agency procurement, may not knowingly:
o solicit, discuss or accept future employment or business
opportunity with a competing contractor;
o solicit or accept money, a gratuity or any other thing of
value from a competing contractor; or
o disclose proprietary or source selection information to
any person not authorized to receive this
information. This prohibition applies to any
federal employee vith authorized or unauthorized
access to proprietary or source selection
information.
A. DISCUSSING EMPLOYMENT WITH COMPETING CONTRACTORS
•A Procurement Official may not knowingly discuss future
employment with a competing contractor during the conduct of an
agency procurement. However, if the Procurement Official has not
yet participated in evaluating proposals or negotiating a
contract, he or she may obtain permission from the Director of
the Procurement and Contracts Management Division to withdraw
from further participation in a procurement in order to discuss
future employment with a competing contractor. See 48 C.F.R.
§3.104-6. An individual may not start employment discussions with
a competing contractor until he or she has received written
approval of the recusal request.
These restrictions are in addition to the general
prohibition of 18 U.S.C. $208(a) against participating in matters
which affect the financial interests of prospective employers.
B. ACCEPTING MONEY, GRATUITIEB OR ANY OTHER THINS OF
VALUE
A Procurement Official cannot accept money or any other
thing of value from a competing contractor. The phrase "gratuity
or other thing of value" includes any gift, favor, entertainment,
transportation, lodgings, meals, services, training, or other
item having monetary value. It does not include: (1) unsolicited
items having a market value of $10 or less per event or
presentation; (2) loans from banks or financial institutions; (3)
discounts available to the general public; (4) plaques and
certificates having no intrinsic value; (5) anything paid for by
the Government under specific statutory authority; or (6)
training to facilitate use of its products provided by a vendor
whose products are furnished under Government contract.
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3
C. DISCLOSURE OF PROPRIETARY OR 80URCE SELECTION
INFORMATION
Neither a Procurement Official nor any other federal
employee may disclose proprietary or source selection information
to a competing contractor. Moreover, bo federal employee,
whether or not a Procurement Official,, who receives authorised or
unauthorised aocess to proprietary or souree selection
information, nay disclose such information to any person other
than a person authorised to receive such information.
The contracting officer,-the Administrator or the
Administrator's designee may authorize persons to receive this
information when necessary to the conduct of the procurement.
For example, a member of a technical evaluation panel may not
discuss with his or her supervisor the names of those companies
submitting proposals, the content of their proposals, or how they
were evaluated unless authorized to do so.
Proprietary information is information contained in a bid. or
proposal (unsolicited or otherwise) submitted to the agency by a
competing contractor that has been marked by the competing
contractor as proprietary or confidential. Source selection
information is information, which is prepared or developed for
use by the agency to conduct a particular procurement, the
disclosure of which would jeopardize the integrity or successful
completion of the procurement. Source selection information is
limited to: (1) bid prices prior to bid opening, (2) proposed
costs or prices in negotiated procurements, (3) source selection
plans, (4) technical evaluation plans, (5) technical evaluations
of proposals, (6) cost or price evaluations, (7) competitive
range determinations, (8) the rankings of proposals or
competitors, (9) source selection documents, and (10) other
information (such as the Government's cost or price estimates)
marked as "SOURCE SELECTION INFORMATION - SEE FAR 3.104" by the
contracting officer, the Administrator, or the Administrator's
designee.
Any"question as to whether information is proprietary or
source selection information should be directed to the
contracting officer. If it is not clear who is authorized to
receive this information, ask the contracting officer. Each
employee has a duty to inquire.
III. POST-EMPLOYMENT RESTRICTIONS
An individual who was a Procurement Official with respect to
a particular procurement may not:
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4
o participate in any manner on behalf of a competing
contractor in any negotiations leading to the award or
modification of a contract for such procurement;1 or
o participate personally and substantially on behalf
of the competing contractor in the performance of such
contract.2
Both restrictions apply for a period of two years from the
date of the individual's last personal and substantial
participation in the procurement on behalf of the government.
Neither applies unless the individual was an employee of the
Government at the time he or she served as a Procurement
Official. The restrictions extend to post-employment activities
on behalf of some subcontractors. These restrictions are in
addition to the general post-employment restrictions of 18 U.S.C.
5207.
IV. COMPETING CONTRACTOR PROHIBITIONS
The law imposes corollary restrictions upon competing
contractors. They may not discuss or offer future employment or
business opportunity to a Procurement Official. They may not
offer money, gratuities or any other thing of value. They may
not solicit or obtain proprietary or source selection information
from the agency.
V. FEDERAL AGENCY PROCUREMENT
The procurement integrity provisions apply during the
conduct of a Federal agency procurement. The process begins on
the earliest date an authorized official-directs that a specific
action be taken to initiate a procurement. This often means the
drafting of the specifications or statement of work or the
development of a procurement or purchase request.
The procurement ends with the award of a contract or the
termination of the procurement. Modifications to contracts which
add new work outside the original scope of the contract are also
separate agency procurements.
1 This restriction includes providing advice or information
for the specific purpose of influencing negotiation strategies.
This restriction does not apply to providing scientific, technical
or other advice that is unrelated to negotiation strategies.
2 The performance of general engineering, scientific or
technical work, or providing general budgetary or policy advice, is
not considered personal and substantial participation.
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5
All acquisitions of goods and services, including small
purchases and bankcard purchases, are agency procurements.
However, grants and cooperative agreements, interagency
agreements, Federal Technology Transfer Act cooperative research
agreements, and purchases made by EPA travelers using Diner's
Club cards are not agency procurements, and are not covered by
the Procurement Integrity provisions.
VI. Definitions
Most of the prohibitions apply to.^procurement offieials"
and "competing contractors". A "procurement official" is any
agency employee who has participated personally and substantially
in any of the following with respect to a particular procurement:
(1) Drafting or reviewing and approving a
specification or statement of work;
(2) Preparing or developing a procurement or
purchase request;
(3) Preparing or issuing a procurement solicitation;
(4) Evaluating bids or proposals or selecting sources;
(5) Negotiating to establish the price or terms and
conditions of a contract or modification;
(6) Reviewing and approving the award of a contract or
a modification to a contract which adds work
outside the original scope.
The definition extends to non-federal employees who provide
advice to an agency with respect to a procurement. A person does
not become a "procurement official" by performing clerical
functions; by performing general technical, engineering or
scientific efforts having broad application; or by reviewing
procurement documents solely to determine compliance with
regulatory, administrative and budgetary requirements and
procedures. Anyone having a question as to whether he or she is
a "procurement official" should consult with the contracting
officer for the specific procurement.
A "competing contractor" is an entity, usually a company,
that is or is reasonably likely to become a competitor for a
contract or subcontract, i.e. bidders and offerors. The term
includes any person acting on behalf of such an entity.
Questions regarding whether a particular entity is a competing
contractor should be directed to the entity in question.
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6
VII. CERTIFICATIONS
At the tine they become procurement officials, employees
must sign a certification which states the individual (1) is
familiar with the provisions of the procurement integrity
statute, (2) will not engage in prohibited Activity, (3) and will
report any possible violation of the statute to the contracting
officer. Procurement officials who leave the government while a
specific procurement is underway must execute a second
certification. When a procurement is in excess of $100,000,
contracting officers and competing contractors also execute
certifications, prior to award, that they have no information
concerning a possible violation of the procurement integrity
statute. Additional certifications can be required by the
Administrator or the Director of the Procurement and Contracts
Management Division.
VIII. ETEIC8 ADVISORY OPINIONS
Any EPA employee or former employee may request an ethics
advisory opinion from EPA's Designated Agency Ethics Official,
Gerald Yamada, as to whether specific conduct which has not yet
occurred would violate the procurement integrity statute. The
procedures for requesting an opinion are found in FAR §3.104-
8(e), attached.
IX. REPORTING VIOLATIONS
All EPA employees should report violations or possible
violations of the procurement integrity provisions to the
appropriate contracting officer. The contracting officer
forwards the information to the Director of the Procurement and
Contracts Management Division, who investigates the matter and/or
refers the matter to the EPA Inspector General. An EPA employee
may also report violations or possible violations directly to the
EPA Inspector General.
Attachment
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PART 3
IMPROPER BUSINESS PRACTICE" AND
PERSONAL CONFLICTS OF INTEREST
9.000 Scope of part
This pan prescribes policies and procedures for avoid?
inj improper business practices and personal conflicts of
interest and for dealing with their apparent or actual occur-
rence.
SUBPART 3.1—SAFEGUARDS
3.101 Standards of conduct.
3.10I>1 General.
Government business shall be conducted in a manner
above reproach and, except as authorized by statute or reg-
ulation, with complete impartiality and with preferential
treatment for none. Transactions relating to the expenditure
of public funds require the highest degree of public trust
and an impeccable standard of conduct. The general rule is
to avoid strictly any conflict of interest or even the appear-
ance of a conflict of interest in Govemment*coniraeior
relationships. While many Federal laws and regulations
place restriction* on the actions of Government personnel,
their official conduct must, in addition, be such thai Ihey
would have no reluctance to make a full public disclosure
of their actions.
3.10J>2 Solicitation and acceptance of gratuities by
Government personnel.
As a rule, no Government employee may solicit or
accept, directly or indirectly, any gratuity, gift, favor,
cntcnainmcnt, loan,'or anything of monetary value from
anyone who (a) has or is seeking to obtain Government
business with the employee's agency, (b) conducts activi-
ties that are regulated by the employee's agency, or (c) has
interests that may be substantially affected by the perfor-
mance or nonperformance of the employee's official
duties. Cenain limited exceptions are authorized in agency
regulations.
3.101*3 Agency regulations.
(a) Agencies are required by Executive Order 11222 of
May 8. 1965, and 5 CFR 735 to prescribe "Standards of
Conduct." These agency standards contain—
(1) Agen?y-authorized exceptions to 3.101-2; and
(2) Disciplinary measures for persons violating the
undards of conduct.
(b) Requirementsfor employee financial disclosure and
restrictions on private employment for former Government
employees are in Office of Personnel Management and
agency regulations implementing Public Law 9S-S21.
which amended 18 U.S.C. 207.
3.102 Officials not to benefit.
3.102*1 General
41 U.S.C. 22 requires that most Government contracts
explicitly state that ho member of Congress shall be admit-
ted to any share or pan of the contract or any benefit aris-
ing from it. If a contract is made between the U.S.
Government and any member of or delegate to Congress,
or resident commissioner, it may constitute a violation of
18 U.S.C. 431 and 432, resulting in—
(a) Both the officer or employee of the Government who
awarded the contract and the member, delegate, or resident
commissioner being subject to criminal penalties;
(b) The contract being void; and
(c) The contractor having to return any consideration
paid by the Government under the contract.
3.102*2 Cootract clause.
The contracting officer shall insen the clause at 52.203-
1, Officials Not to Benefit, in solicitations and contracts,
except those related to agriculture thai are exempted by 41
U.S.C. 21
3.103 Independent pricing.
3.103-1 Solicitation provision.
The contracting officer shall insen the- provision at
32.203-2, Certificate of Independent Price Determination,
in solicitations when a fum*fued-priee contract or fixed-
• price contract with economic price adjustment is contem-
plated, unless—
(a) The acquisition is to be made under the small pur-
chase procedures in Pan 13;
(b) Reserved.
(c) The solicitation is a request for technical proposals
under two-step sealed bidding procedures; or
(d) The solicitation is for utility services for which rates
are set by law or regulation.
(FAC 90*2) 3*1
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FAC 90—2 NOVEMBER 30,1990
FEDERAL ACQUISITION REGULATION (FAR)
3.105-2
3.103-2 Evaluating the certification.
(a) Evaluation guidelines. (1) None of the following, in
and of itself. constitutes "disclosure" as ii is used in sub-
paragraph (a)(2) of the Certificate of Independent Price
Determination (hereafter. the certificate):
(i) The fact that a firm has published price lists,
rates, or tariffs covering items being acquired by the
Government
(ii) The fan tha. 1 firm has informed prospective
customers of proposed or pending publication of new
or revised price lists for items being squired by the
Government.
(iii) The fact thai a firm has sold the same items to
commercial customers at the same prices being
ofTercd to the Government.
(2) For the purpose of subparagraph (b)(2) of the cer-
tificate. an individual may use i blanket authorization to
act as an agent for the pcrson(s) responsible for due-
mining the offered prices if— . ¦
(i) The proposed contract to which ihc certificate
applies is clearly within the scope of the authoriza-
tion; and
(ii) The person giving the authorization is the
person within the offeror's organization who is
responsible for determining the prices being offered
at the Lime the certification is mad: in the particular
offer.
(3) If an ofTer is submioed jointly by two or more
concerns, the certification provided by the representa-
tive of each concern applies only to the activities of thai
concern.
(b) Rejection of offers suspected of being collusive. (1)
If the offeror deleted or modified subparagraph (a)(1) or
(a)(3) or paragraph (b) of the certificate, the contracting
officer shall reject the offeror's bid or proposal.
(2) If the offeror deleted or modified subparagraph
(aX2) of the ccru&caic. the offeror must have furnished
with its offer a signed statement of the circumstances of
the disclosure of pnees contained in the bid or proposal.
The chief of the contracting office shall review the
altered certificate and the statement and shall determine,
in writing, wheiher the disclosure was made for the pur-
pose or had the efTeci of restricting competition. If the
determination is positive, the bid or proposal shall be
rejected; if it is negative, the bid or proposal shall be
considered for award.
(3) Whenever an ofTer is rejected under subparagraph
(1) or (2) above, or the certificate is suspected of being
false, the contracting officer shall report the situation to
the Attorney General in accordance with 3.303.
(4) The determination made under subparagraph (2)
above shall no< prevent or inhibit the prosecution of any
criminal or civil actions involving the occurrences or
transactions to which the cerbficaie relates.
3.105-3 The oetd for further certifications.
A contractor that properly executed the certificate
before award does not have to submit a separate certificate
with each proposal lo perform a work order or similar
ordering instrument issued pursuant io the terms of the
contract, where the Government's requirements cannot be
met from another source.
3.1 CM Procurement iou gritj.
3.104-1 General.
(a) Section 3.104 implements section 27 of the Office
of Federal Procurement Policy Act (41 U.S.C. 423). as
amended by section 814 of the FY 90/^1 National Defense
Authorization Act, Pub. L. 101-189, and section 815 of the
1991 National Defense Authorization Act, Pub. L. 101-510
(hereinafter section 27 is referred to as "the Act" or "the
law as amended"). Agency supplementation of 3.10* and
any clauses required by 3.104 must be approved ai a level
not lower than the Senior Procurement Executive of the
agency, unless a higher level of approval is required by bw
for that agency.
(b) Agency employees arc reminded thai much of the
conduct prohibited by the Act is also prohibited by other
statutes and regulations. For example—
(1) The ofTer or acceptance of a bribe or graiuity is
prohibited by 18 U.S.C. 201. 10 U.S.C. 2207. S U.S.C.
7353. and 5 CFR Pans 735 and 2635;
(2) Employment discussions arc covered by IS U.S.C
208 which precludes a Government employee from panic-
ipoiing personally and substantially in any particular mat-
ter thai would affect the financial interests of any person
with whom the employee is negotiating for employment;
(3) Post-employment restrictions are covered by 18
U.S.C. 207 which prohibits certain activities by former
Government employees, including representation of a
contractor before the Government in relation to any con-
tract on which the former employee worked while
employed by the Government; and
(4) FAR Pans 14 and 15. which place restrictions on
the release of information related to procurements and
other contractor information which must be protected
under 18 U.S.C. 1905. In addition. 5 CFR Pan 735 pro-
tects non-public Government information.
3.104-2 Applicability.
(a) Conduct and procurement activities during the
period July 16.1989, through November 30,1989.
(1) Gratuities, employment discussions, and solicit-
ing. obtaining, or disclosing proprietary or sourc e
selection information.
(i) Participation in a procurement during the peri-
od July 16. 19119. through November 30. 1989,
whether as a procurement official, competing con-
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FAC90—2 NOVEMBER 30,1990
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 3.104.J
tractor or through access 10 information, subjects the
participant, during that period, to the prohibitions
contained in section 27 as originally enacted.
(ii) IT a particular procurement which vn begun
during the period July 16, 1989, through November
30,1989, has not been completed by November 30,
1990. then on or after December 1,1990—
(A) Any person who was subject to the prohi-
bitions on disclosinf proprietary or source selec-
tion information contained in subsection 27(c) of
the law as originally enacted is subject to the dis-
closure prohibitions of subsection 27(d) of the law
as amended:
(B) Eieept as provided in subdivision
(«Xl)(ii)(A) of this subsection, a procurement
official who was subject to the prohibitions on
gratuities, employment discussions, and disclosing
proprietary or source selection information con-
tained in subsection 27(b) of the law as originally
enacted is subject to the prohibitions under sub-
section 27(b) of the law as amended, if the activi-
tics performed by the procurement official prior to
December 1,1989, would also make him or her a
procurement official under subsection 27(b) of the
law as amended; and
(C) Except as provided in subdivision
(aX0(ii)(A) of this subsection, a competing con-
tractor who was subject to the prohibitions on gra-
tuities, employment discussions, and soliciting or
obtaining proprietary or source selection informa-
tion contained in subsection 27(a) of the law as
originally enacted is subject to the prohibitions
under subsection 27(a) of the law as amended if it
is still a competing contractor for that procure-
ment on or after December 1,1990.
(2) PosMmployment restrictions.
(i) Current and former Government employees
who were procurement officials during the period
July 16.1989, through November 30,1989. are sub-
ject, during, that period, to the post-employment
restrictions contained in section 27 is originally
enacted
(ii) On or after June 1. 199], cuncm and former
Government employees who were procurement offi-
cials during the period July 16. 1989, through
November 30, 1989, become subject to the post-
employment restrictions contained in subsection
27(0 of the law as amended, ir—
(A) The activities :performed by the procure-
ment official during the period July 16, 1989.
through November 30, 1989. would also make
him or her a procurement official under section
27, of the law as amended; and
(B) The 2-year period of any post "employ/new
restriction that attached during the period July 16,
J9.89, through November 30, 1989, hafuot
expired.
(b) Conduct and procurement activities during the
period December 1,1989. through November 30.1990.
(1) Gratuities, employment discussions, end solicit-
ing, obtaining, or disclosing proprietary or sourc e
selection iiformaiion.
CO The prohibitions on gratuities, employment
discussions, and soliciting, obtaining, or disclosing
proprietary or source selection information contained
in section 27 were suspended during the period
December 1, 1989, through November 30, 1990.
Neither the prohibitions contained in section 27 as
originally enacted nor as amended apply during the
suspension period. Participation in a procurement
solely during the suspension period doc* not subject
any person to any of these prohibitions on or after
December 1,1990.
(2) Post employment restrictions.
(i) Hie post-employment restrictions contained in
section 27 were suspended during the period
December 1, 1989, through November 30, 1990.
Neither the post-employment restrictions contained
in section 27 as originally enacted nor as amended
apply to any person during the suspension period. In
addition, these post-employment restrictions do not
apply on or after December 1,1990, to any current or
former Government employee whose only participa-
tion in a procurement occurred during the period
from December 1, 1989, through November 30,
1990.
(ii) The suspension of the post-employment
restrictions during the period December 1. 1989.
through November 30, 1990, does not interrupt the
running of the 2-year period of any pbst
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FAC 90—2 NOVEMBER 30,1990
FEDERAL ACQUISITION REGULATION (FAR)
3.I&4-3
(2) Post-employment restrictions.
(i) Pub. L 101-510 continues the suspension of
the posi-employmeni restrictions contained in sub-
section 27(0 of the law as amended through May 31.
1991. Government employees who perform procure-
ment official activities solely during the period
December 1. 1990, through May 31. 1991, do not
become subject to the post-employment restrictions
contained in subsection 27(0 of the law as amended
either during or after the suspension period.
(ii) The post-employment resiriciions of subsec-
tion 27(0 of the law as amended art effective June 1.
1991. Government employees wbo perform procure-
ment official activities on or a/ier June 1, 1991. are
subject to those restrictions.
(iii) As provided in subdivision (a)(2)(ii) of this
subsection, the posi-employment restrictions con-
tained in subsecu'on 27(0 of the law is amended may
also apply, on or after June 1, 1991, to current or for-
mer Government employees who were procurement
officials during the period July 16. 1989, through
November 30, 1989.
(iv) The continued suspension of the post-
cmploymcni restrictions docs not interrupt the run-
ning of he 2-year period of any posi-employment
restriction that au&chcd to a procurement official dur-
ing the period July 16. 19B9. through November 30.
1989.
3.104-3 Statutory prohibitions and restrictions
As provided in section 27 of th: Act. the following con-
duct is prohibited:
(a) Prohibited conduct by correcting contractors (sub-
jection 27(a) of the Act). During the conduct of any
Federal agency procurement of property or sen-ices, no
competing contractor or any office;, employee, represent*-
live, agsni. or consultant of any competing contractor shall
knowingly—
(1) Make, directly or indirectly, any offer or promise of
future employment or business opportunity to. or engage,
directly or indirectly, in any discussion of future employ-
ment or business opponuruty with, any procurement offi-
cial of such agency, except as provided in 3.1(K-6{b);
(2) OfTer, give, or promise to offer or five, directly
or indirectly, any money, gratuity, or other thing of value
to any procurement official of such agency, or
(3) Solicit or obtain, directly or indirectly, from any
officer or employee of such agency, prior to the award
of a contract any proprietary or source selection infor-
mation regarding such procurement
(b) Prohibited conduct by procurement officials (sub-
section 27(b) cf the Act). During the conduct of any
Federal agency procurement of property or services, no
procurement official of such agency shall knowingly—
(1) Solicit or accept, directly or indirectly, any
promise of future employment or business opportunity
from, or engage, directly a indirectly, in any discussion
of future employment or business opportunity with, any
office;, employee, representative, agent, or consultant of a
competing contractor, except as provided in 3.1W«6(a);
(2) Ask for, demand, exact, solicit, seek, accept,
receive, or agree to receive, directly or indirectly, any
money, graiuiiy. or other thing of value from any officer,
employee, representative, agent, or consuiunt of any
competing contractor for such procurement; or
(3) Disclose any proprietary or source selection
information regarding such procurement directly or
indirectly to any person other than a person authorized
by ihr head of such agency or the contracting officer to
receive such information.
(c) Disclosure to unauihorited persons (subsection
27(d) of the Act). During the conduct of any Federal agen-
cy procurement of property or services, no person who is
given authorized or unauthorized access to proprietary or
source selection information regarding such procurement.
shalJ knowingly disclose such information, directly or indi-
rectly, to any person other thin a person authorized by the
head of such agency or the contracting officer to receive
su:h informauon.
(d) Post-emplcymcn: restriction resulting from pro -
curement activities of Government officers or employees
w/jo art or wet procurement ofjiciali (subsection 27(f) of
the Act; not effective until June J. 1991).
(1) No individual whe, while serving as an officer or
employee of the Government or member of the Armed
Forces, was a procurement official with respect to a par-
ticular procurement may knowingly—
(i) Participate in any manner, as an officer,
employee, agent, or representative of a competing
contractor, in any ncgouanons leading to the award,
modificayon, or extension of a contract for such pro-
curement or
(ii) Participate personally and substantially on
behalf of the competing contractor in the perfor-
mance of such contract.
The restrictions in subdivisions (dj(l)(i) and (d)(l)(ii) of
this subsection apply dunng the period ending 2 years after
the last date such individual participated personally and
substantially in the conduct of such procurement or person-
ally reviewed and approved the award, modification, or
extension of any contract for such procurement.
(2) This subsection does not apply to any participa-
tion referred to in subdivisions (d;( 1 )(i) and (dX 1 >(ii) of
this subsection with respect to a subcontractor who is
9 competing contractor unless—
(i) The subcontractor is » first or second tier sub-
contractor and th: subcontract is for an amount tha:
is in excess of S100.000; or
(ii> Th: subcontractor significant!} assisted th:
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FAC 90—2 NOVEMBER 30,1990
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 3.104-4
prime contractor with respect to negotiation of the
prime con no; or
(III) The procurement official involved in the
award, modification, or extension of the prime eon*
tract personally directed or recommended the panicu-
lar subcontractor to the prime contractor as a source
for the subcontract; or
Civ) The procurement official personally reviewed
and approved the award, modification, or extension
of the subcontract
3.104-4 Definitions.
As used in this subsection—
(a) "Agency ethics official" means the designated agen*
cy ethics official described in 3 CFR 2638.201 and any
other person, including deputy ethics officials described in
I 3 CFR 2638.204, to whom authority under 3.104-6(0
3.104-8(e) has been delegated by the designated agency
ethies official.
(b)(1) "Competing contractor." with respect to any
procurement (including any procurement using proce*
durej other than competitive procedures) of property or
services means any entity (such as an individual, partner*
ship, corporation, educational institution, nonprofit or
not for profit organization, or business unit) legally capa-
ble of entering into a contract or subcontract in its own
name that is, or is reasonably likely to become, a com-
petitor for or recipient of a contract or subcontract under
such procurement, and includes any other pereon acting
on behalf of such an entity.
(2) The term "competing contractor" includes the
incumbent contractor in the case of a contract modifica-
tion.
(3) An entity shall not be considered a competing
contractor whenever, by action of the Government or the
entity, it is clear that the entity will not. or will no
longer, participate in a particular procurement.
(4) For purposes of subsections 27(a) and 27(b) of
the Act, the phrase "representative, agent, or consultant
of a competing contractor" means any entity, other than
an officer or employee of a competing contractor, acting
on behalf of. or providing advice to. a competing con-
tractor with regard to a particular Federal agency pro-
curement.
(c)(1) "During the conduct of any Federal agency
procurement of property or services" means, except for
broad agency announcements, small business innovative
research programs, and unsolicited proposals (see sub*
paragraphs (c)(3) and (cX4) of this subsection), the peri*
od beginning on the earliest date upon which an identifi-
able, specific action is taken for the particular procure*
mem and concluding upon the award or modification of a
contract or the cancellation of the procurement; provided,
however, that in no event shall the conduct of the pro*
curemeni be deemed to have begun prior to the decision
by an authorized agency official to satisfy a specific
agency need or requirement by procurement These
actions art—
(i) Drafting a specification or a statement of
work;
(u) Review and approval of a specification;
(iii) Requirements computation at an inventory
control point;
(iv) Development of procurement or purchase
requests;
(v) Preparation or issuance of a solicitation;
(vi) Evaluation of bids or proposals;
(vii) Selection of sources;
(viii) Conduct of negotiations; or
(ix) Review and approval of the award of a eon-
tract or contract modification.
(2) Each contract award and each contract modifica-
tion constitutes a separate procurement action; i.e., a
separate period to which the prohibitions and the
requirements of the Act apply.
(3) For broad agency announcements and small
business innovative research programs, each proposal
received by an agency shall constitute a separate pro-
curement for purposes of the Act. The conduct of each
procurement shall be deemed to have begun upon the
date a Commerce Business Daily announcement was
made regarding the availability of the broad agency
announcement or the date a solicitation was released
for the small business innovative research program.
The conduct of the procurement shall end upon the
award of a contract or contract modification incident to
each proposal or the written rejection of each specific
proposal.
(4): Each unsolicited proposal shall be considered a
separate procurement for purposes of the Act For unso-
licited proposals, the conduct of the procurement shall be
deemed to have begun upon the publication date of a gen*
era! statement of agency needs (see 15.503(d)). or if an
agency does not publicize a general statement of agency
needs, upon the provision of advance guidance related to
agency needs (see 15.501(a)(1)) or the receipt of the unso-
licited proposal, whichever is earlier. The conduct of the
procurement shall end upon the award of a contract or
contract modification or the rejection of the proposal.
(d) "Government officer or employee" means a person
who is employed by a Federal ageney (see Subpart 2.1) and
-who is in such status during the period July 16. 1989.
through November 30.1989, or on or after December 1.
1990. This includes—
(1) A member of the uniformed services as defined
in section 101(3) of title 37. United States Code;
(2) A person who is appointed to a position in the
Federal Government under title S, United States Code,
or any other title authorizing such appointments, includ-
ing a person under a temporary appointment; and
(FAC 90*2) 3*5
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3.1W-4
FEDERAL ACQUISITION REGULATION (FAR)
(3) A special Government employee as defined in
section 202 of title 18. United States Cooe.
(e) "Modification" means the addition of new work to a
contract, or the extension of i contract, which requires a
justification and approval (see Subpart 6.3). It does not
include an option where all the terms of the op boa, includ-
ing option prices, are set forth in the contract and all
requirements for option exercise have been satisfied,
change orders, administrative chan., s, or any bther con-
tract changes thai are within the scope of the contract.
(0(1) "Gratuity or other thing of value" includes any
gift, favor, entertainment, or other item having monetary
value. The phrase includes services, conference fees, ven-
dor promotional training, transportation, lodgings and
meals, as well as discounts not available to the general
public and loans extended by anyone other lhan a bank or
financial institution. The phrase does not include—
(i) Anything for which marke: value is paid by the
procurement official, or on his behalf, by someone
other than a competing contractor, or a representa-
tive. agent, or consultant of the competing contractor.
(ii) Anything which is paid for by the
Government, secured under Government contract. or
accepted by the Government under specific statutory
authority;
(iii) Plaques or certificates having no intrinsic
value; or
(iv) Any unsolicited item, other than money, hav-
ing a market value of S10 or less per event or presen-
tation.
For these purposes, market value means the retail cos: the
procurement officii] would incur to purchase the item and.
in the case of items such as tickets, refers to their face
value. A thing of value given or received or otherwise
offered or sought "directly or indirccUy" includes a thing of
value directed to i person other than a procurement offi-
cial. such as a spouse or child, solely because of that per-
son's relationship lothe procurement official or on the
basis of designation, recommendation, or suggestion by the
procurement official..
(2) Promotional vendor training docs not include
raining provided by a vendor when a vendor's products
are furnished under contract to the Government and the
training is to facilitate the use of those products,
(g) "Participated personally and substantially" means
active and significant involvement of the individual in
activities directly related to the procurement. To partici-
pate "personally" means directly, and includes the partic-
ipation of a subordinate when actually directed by the
supervisor in the mauer. To participate "substantially"
means that the employee's involvement mus: be of signif-
icance to the mauer. For example, the review of procure-
men; documents solely to determine compliance with
applicable regulatory, administrative, or budgetary
3-6 (FAC 90-2)
requirements or procedures, does not constitute substan-
tial participation in a procurement It requires more thar
official responsibility, knowledge, perfunctory involve-
ment, or involvement on an administrative or peripheral
issue. A finding of substantiality should be based not
only on the efTort devoted to a mauer. but on the impor-
tance of the efTon. While a series of peripheral involve-
ments may be insubstantial, the single act of approving
or participating in a critical step may be substantial.
(h)(1) "Procurement official" means any civilian or mil-
itary official or employee of an agency who has participat-
ed personally and substantially in any of the following
activities for a particular procurement—
(i) Drafting a specification or a statement of work
for that procurement:
(ii) Review and approval of a specification or
stai&ment of work developed for that procurement;
(iii) Preparation or development of procurement
or purchase requests for thai procurement:
(iv) The preparation or issuance of a solicitation
for that procurement:
(v) Evaluation of bids or proposals for that pro-
curement;
(vi) Selection of sources for that procurement;
(vii) Negotiations to establish the price or terms
and conditions of a particular contract or contract
modification; or
(viii) Review and approval of the award of a con-
tract or contact modification.
(2) For purposes of 3.10*-i(h). the term "employee
of an agency" includes a contractor, subcontractor, con-
sultant. expert, or advisor (other than a competing con-
tractor)' acting on behalf of. or providing advice to. the
agency with respect to any phase of the agency procure-
ment concerned.
(3) Generally, an individual will not become a pro-
curement official solely by participating in the following
activities—
(i) Federal advisory committees that are estab-
lished and function in accordance with the Federal
Advisory Committee Act. 5 U.S.C. App. 2. unless the
Federal advisor) commiace is established or used for
the purpose of performing a function bs(ed in sub-
paragraph (h)(1) of this subsection and the individual
member's participation in that function is personal
and substantial;
(ii) Agency level boards, panels, or other adviso-
ry commiuees that review program milestones or
evaluate and make recommendations regarding alter,
native technologies or approaches for satisfying
broad agency level missions or objectives;
(iii) The performance of general, technical,
engineering, or scientific effon having broad appli-
cation not directly associated with a particular pro-
curement. notwithstanding thai such general, tech-
-------
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 3.104-5
aical. engineering, or scientific effort subsequently
may be incorporated into a particular procurement;
(iv) Clerical functions supporting the conduct of a
particular procurement; and
(v) For procurements to be conducted under the
procedures of OMB Circular A-76. participation in
management studies, preparation of in-house eon
estimates, preparation of "most efficient organ iza-
lion" analyses, and furnishing of data or technical
support to be ust! by others in the levelopmem of
performance standards, statements of work, or speci-
fications.
(4) An employee of an agency does not become a
procurement official for a particular procurement until
the onset of the employ tie's personal and substantial par*
tieipation in thai particular procurement
(i) "Property" means supplies as defined in 2.101.
(j)(l) "Proprietary information" means information
contained in a bid or proposal or otherwise submitted to the
Government by a competing contractor in response to the
conduct of a particular Federal agency procurement, or in
an unsolicited proposal, thai has been marked by the com-
peting contractor as proprietary information in accordance
with applicable law and regulation.
(2) Information shall be considered proprietary
information, for purposes of section 27 of the Act. only
when—
(i) An attached transmittal document, such as a
cover page or the label of a magnetic media storage
container, is dearly marked with a restrictive legend;
and
(ii) The specific ponions of the information
whose disclosure the competing contractor desires to
restrict are clearly and separately marked.
(3) Propriety information does not include infor-
mation—
(i) Thai is otherwise available without restrictions
to the Government, another competing contractor, or
the public;
(ii) Contained in bid documents following bid
opening (but see 14.4044); or
(iii) That the contracting officer determines to
release in accordance with 3.104-5(d).
(k)(l) "Source selection information" is information,
including information suited in electronic, magnetic, audio or
video formats, which is prepared or developed for use by the
Government to condua a particular procurement and—
(i) The disclosure of which to • competing
contractor would jeopardiu the integrity or success*
ful completion of the procurement concerned; and
(ii) Is required by statute, regulation, or order to
be secured in a source selection file or other facility
to prevent disclosure.
(2) Source selection information is limited to—
CO Bid prices submitted in response to I Federal
agency^aolicitation for sealed bids, or lists of th&se
bid prices prior to public bid opening;
(ii) Proposed cosu or prices submitted in
response to a Federal agency solicitation (for other
than sealed bids), or lists of those proposed cosu or
prices;
(iii) Source selection plans;
(iv) Technical evaluation plans;
(v) Tethnieal evaluations of proposals;
(vi) Cost or price evaluations of proposals;
(vii) Competitive range determinations which
identify proposals that have a reasonable chance of
being selected for award of a contract;
(viii) Ranking] of bids, proposals, or competitors;
C») The reports and evaluations of source selec-
tion panels or boards or advisory couneils; or
(a) Other information marked as "SOURCE
SELECTION INFORMATION—SEE FAR 3.104"
based upon a ease«by
-------
3.1(U-6
ha in 3.104-4(k)(l) and consult with agency officials as
appropriate. Individuals responsible for preparing material
that may include information designated as source selec-
tion informal)on in accordance with 3.104-4(k)(2X*) shall
mark the cover page and each page thai contains source
selection information with the legend "SOURCE SELEC-
TION INFORMATION—SEE FAR 3.104." Although the
materia] described in 3.104-4(k)(2)(i) through (ix) is con-
''•itred to br source selection information whether or not
marked, all reasonable efforts shall be made to mark such
material with this legend.
(d)(1) The head of the agency. or his or her designee, or
the contracting officer, has the authority, in accordance
with applicable agency regulations or procedures, to autho-
rize persons, or classes of persons, to receive proprietary or
source selection information when necessary to the conduct
of the procurement
(2) For contracts and contract modifications in
excess of SI00,000, the head of the agency, or his or her
designee, shall establish procedures to assure, that the
. names of all persons, identification of the classes of per-
sons and, to the maximum extern practicable, the names
of all individuals within a class of persons, authorized
access to proprietary or source selection information a!
the contracting activity arc listed in the contract file.
(3) For contracts and contract modifications expect-
ed to exceed SI00.000. if proprietary or source selection
information is authorized to be released to Government
activities outside the contracting activity responsible for
the conduct of the procurement, the head of the ofTice
receiving the information, or his or her designee, shall
maintain a list of persons, a list of classes of persons
and. to the maximum extent practicable, the names of all
individuals within classes of persons, who have been
authorized access to the proprietary o: source selection
information. The list shall be forwarded to the contract-
ing office responsible for the conduct of the procure-
ment to be included in the contract file.
(4) For release to other than Government employees,
see 12.413-2. The names of those individuals shall also
be listed in the contract file when the contract or con-
tract modification is expected to exceed SI00.000.
(5) The lists prescribed by this subsection shall be
forwarded to the contracting officer for inclusion in the
contract file within the lime specified by the contracting
officer.
(eXD Except as provided in subparagraph (e)(4) of this
subsection, if the contracting officer believes that informa-
tion marked as proprietary (see 3.104-4Q")) is not propri-
etary, the competing contractor that has affixed the marking
shall be notified in writing and given an opportunity to jus-
tify the proprietary marking. If the competing contractor
agrees that the material is not proprietary information, or
does not respond within the ume specified in the notice, the
3-8 (FAC90-2)
FEDERAL ACQUISITION REGULATION (K&R)
contracting officer may remove the proprieiaty marking
and the information may be released.
(2) After reviewing any justification submitted by
the competing contractor, if the contracting officer
deurmines that the proprieury marking is not justified,
the contracting officer shall so notify the competing
contractor in writing.
(3) Information marked by the competing contractor
as proprietary shall not be released until—
(i) The review of the contractor's justification has
been completed; or
(ii) The period specified for the contractor's
response has elapsed, whichever is earlier.
Thereafter, the contracting officer may release the informa-
tion.
(4) With respect to technical data thai are marked
proprietary by a competing contractor, the contracting
officer shall generally follow the procedures in
27.401(h).
(0 Nothing in 3.104 prohibits competing contractors
from disclosing or authorizing the Government to disclose"
their company-specific proprietary information to any other
person or enuiy where not otherwise prohibited by law.
(£) Proprietary markings under 3.10* do not limit the
Government's use of technical data to »hich the
Government has rights.
(h) Source selection or proprietary information that is
properly in the possession of a competing contractor as a
result of a prior disclosure thai was not prohibited by the
Act shall no; be considered to have been solicited or
obtained, directly or indirectly, in violation of the Act
(i) Nothing in 3.1W shall be construed to authorize the ¦
withholding of any information pursuant to a proper
request from the Congress, any committee or subcommittee
thereof. < Federal agency, any board of contract appeals of
a Federal Agency. the Comptroller General, or an Inspector
General of a Federal agency, except as otherwise autho-
rized by law or regulation. Any such release which con-
tains proprietary or source selection information shall
clearly notify the recipient that the information or portions
thereof are proprietary or source selection information
related to the conduct of a Federal agency procurement
whose disclosure is restricted by section 27 of the Act
3.104*6 Restrictions on employment or business
opportunity discussions between competing contrac-
tors and procurement officials.
(a) Applicability 10 procurement officials. During the
conduct of a Federal agency procurement, subsection
27(b)(1) of the Act prohibits an individual who has become
a procurement official from knowingly, directly or indirect-
ly. soliciting or axepting from o: discussing with any offi-
cer. employee, representative, agent, or consultant of a
competing contractor, future employment or business
-------
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL COKFUCTS OF INTEREST
opportunity. Subsection 2?(bXl) of the Act also applies, to
individuals acting as procurement officials on behalf of the
procuring agency who are. or are employed by. contractors,
subcontractors, consultants, experts, or advisors (other than
employees of a competing contractor). The prohibition in
subsection 27(bXl) does not apply to a procurement offi-
cul
(1) After the contract has been awarded, the procure-
nuftt canceled, or the contract modification has been
executed;
(2) After the procurement official leaves
Government service;
(3) Who is. or is employed by. a contractor, subcon-
tractor. consultant, expert,-or advisor, after such pro-
curement official ceases to act on behalf of. or provide
•dvice to, the procuring agency concerning the procure-
ment;
(4) Described in paragraph (c) of this subsection
who has received written authorization for recusal from
further participation in a procurement, and who has in
fact discontinued participation in the procurement.
(5) Whose only communication with a competing
contractor is for the purpose of—
(i) Rejecting an unsolicited offer of employment
or business opportunity'; or
(ii) Advising the competing contractor thai he or
she must s&vi recusal in accordance with paragraph
(d) of this subsection prioc to any discussions regarding
the unsolicited offer. A procurement official who wish-
es to conduct such discussions with the competing con-
tractor shall promptly submit a recusal proposal.
(b) Applicability to competing comractors. During the
conduct of a Federal agency procurement, subsection
27(a)(1) of the Act prohibits a competing contractor from
knowingly, directly or indirectly, offering or promising to,
or discussing with, a procurement official any future busi-
ness or employment opportunity. The prohibition does not
apply to—
(1) An inijial contact for the sole purpose of deter-
mining whether an individual or other entity is able to
engage in discussions concerning future employment or
business opportunity either because the individual or
entity has been recused or is not a procurement official.
(2) A contact or discussion with an individual or
other entity who may engage in such contact or dis-
cussion under subparagraphs (a)(1) through (a)(4) oT
this subsection.
(c) Eligibility for recusal. An individual or other entity
who is a procurement official may be eligible for recusal if
the individual or entity has not participated personally and
substantially in—
(1) The evaluation of bids or proposals, the selection
of sources, or the conduct of negotiations in connection
with such solicitation or contract during the period
beginning with the issuance of a procurement solicita-
tion and, en ding with the award of a contra or cancella-
tion of a procurement; or
(2) The evaluation of a proposed modification, or the
conduct of negotiations during the period beginning
with the negotiation of a modification of a contract and
ending with an agreement to modify the contract or a
decision not to modify the contract
(d) Recusal proposal. An eligible procurement official
who wishes to discuss future employment or business
opportunities with a competing contractor during the con*
duct of a procurement shall submit to (he Head of the
Contracting Activity (HCA) or his or her designee, prior to
initiating or engaging in such discussions, a written propos-
al of disqualification from further participation in the pro-
curement which relates to that competing contractor.
Concurrent copies of the written proposal shall be
submitted to the contracting officer, the Source Selection
Authority if the contracting officer is not the Source
Selection Authority, and the procurement official's immedi-
ate supervisor. As a minimum, the proposal shall—
(1) Identify the procurement involved;
(2) Describe the nature of the procurement official's
participation in the procurement and specify the approx*
imaic dates or lime period of participation; and
(3) Identify the competing contractor and describe
its interest in the procurement.
(e) Suspension from participation 4n a procurement.
The contracting officer, or the Source Selection Authority
if the contracting officer is not the Source Selection
Authority, may suspend the individual's or entity's poniei-
paiion in the procurement pending evaluation of the recusal
proposal. Notwithstanding submission of a recusal propos-
al or^suspension from participation in a procurement, an
individual or entity shall not solicit or engage in discus*
sions of employment or business opportunity until auih>
rued in writing by the HCA or his or her designee.
(0 Evaluation of recusal proposal. (1) If the HCA or
his or her designee determines thai the procurement offi-
cial's further participation is not essential to the activity's
conduct of the procurement and that recusal will not jeop-
ardize the integrity of the procurement process, the HCA
may. after consulting with the apencv ethics official, grant
written approval of the recusal proposal. ln~evaJuaung the
recusal proposal, the HCA or his or her designee may con-
sider any relevant (acton, including—
CO The importance of the procurement official's
role to the completion of the procurement action;
(ii) Ux procurement official's prior participation
in key procurement decisions and actions;
(iii) The timing of the proposal in relation to tig-
nificant procurement milestones; and
(iv) Potential disruption to the procurement
schedule as a result of the procurement official's
recusal.
(2) The HCA or his or her designee may request that
(FAC 90-2) 3*9
-------
FAC 90—2 NOVEMBER 30,1990
FEDERAL ACQUISITION REGULATION (FAR)
3.104.7
any person, including the procuremen; official, the
Source Selection Authority, the contracting officer or
the procurement official's immediate supervisor, provide
any additional information necessary to evaluate the
recusal proposal.
(3) Any rejection of the recusal proposal shall be in
writing and shall state the basis for rejection. A deier-
minaiion by the HCA or his or hr designee to reject a
recusal proposal shall be final. Rejection of a
Government officer's or employee's recusal proposal
shall not be deemed to be an advene personnel action or
be subject to agency or negotiated grievance procedures.
(£) Duration of rtcusal. A procurement officii! whose
recusal proposal has been approved shall be disqualified—
(1) As a minimum, for any period during which
future employment or business opportunities with the
competing contra:tor have not been rejected by either
the procurement official or the competing contrarian or
(2) For the period the procurement official and com-
peting contractor have an employment or business rela-
tionship or an arrangement concerning future employ-
ment or business relationships.
(h) Reinstatement to participation in a procurement.
Subsequent to a period of disqualification, if an agency
wishes to reinstate the procurement official to participation
in the procurement, the HCA or his or her designee may
auLhonzc immediate reinstatement or. in his or he.* discre-
tion, may authorue reinstatement following whatever addi-
tional period of disqualification he or she determines is
necessary to ensure the integrity of the procurement pro-
cess. It is within the discretion of the HCA. or his or ha
designee, to determine thai the procurement official shall
not be reinstated to participation in the procurement. In
determining thai any additional penod of disqualificajon is
necessary, the HCA or his or her designee shall consider
any factors thai might gjve rise to an appearance thai the
procurement official a^icd without complete impartiality
with respect to issues involved in the procurement.
3.104*7 Postemploymtot restrictions applicable to
Government officers and employees serving as pro-
curement officials and certifications required from
procurement officials leaving Government service,
(a) Subsection 27(e)(4) of the Act provides that if a pro-
curement official leaves the Government during the con-
duct of a procurement expected to result in a contract or
modification in excess of S100.000. such official shall cer-
tify to the contracting officer that he or she understarvls the
continuing obligation, during the conduct of the procure-
ment. not to disclose propria) or source selection informa-
tion related to such agency procurement. This certification
requirement also applies to individuals acting as procure-
men; official? on behalf of the procuring aruviiv »hc arc.
o: are employed b>. contractors, subcontractors, consul-
tants. experts, or advisors other than employees of the com-
peting contractor when such individuals, during the con-
duct of the procurement cease to function as procurement
officials for the procurement
(b) Subsection 27(Q(1XA) of the Act restricts a current
or former Government officer or employee, as defined in
3.104«4{d). who was a procurement official with respect to
a particular procurement, from knowir. 'y participating it.,
any manner in negotiations as an officer, employee, repre-
sentative, agent, or consultant of a competing contractor
leading to the award or modification of the contract for
such procurement This restriction not only includes repre-
senting the competing contractor in negotiations with the
contracting activity, but also includes providing advice or
information for the specific purpose of influencing negotia*
tion strategies. For purposes of this restriction, "negotia-
tion strategies" mean the contractor's approach to the
preparation and presentation of its offer or the conduct of
negotiations with the Government This restriction docs
noi apply to providing scientific, technical, or other advice
that is unrelated to negotiation strategies. This restriction
lasts for 2 years from the djte of the individual's last per-
sonal and substantial participation in th: Federal agency
procurement. This restriction is not effective until lune 1.
1991.
(c) Subsection 27(f)(1)(B) of the Act restricts a current
or former Government officer or employee, as defined in
3.10i-i(d). who was a procurement official with respect to
a particular procurement, from knowingly participating
personally and substantially on behalf of the eompeung
contractor in performance of the contract. To participate
"personally and substantially" requires the presence of both
direct and significant involvement in the performance of
the specific contract. The performance of general engi-
neering, scientific or technical work. 01 providing general
budgetary or policy advice, shall not be considered person-
a! and substantial participation on behalf of a competing
contractor in the performance of the contract for which the
Government officer or employee is or was a procurement
official. Where participation is on behalf of a competing
contractor who is a subcontractor, the significance of thai
participation will be determined in relation to the prime
contract This restriction lasts for 2 years from the date of
the last personal and substantial participation in the Federal
agency procurement This restriction is not effective until
June 1,1991.
(d) The restrictions in paragraphs (b) and (c) of this
subsection do not apply to—
(1) Individuals acting as procurement officials on
behalf of the procuring agency who art or were, or who
are or were employed by, contractors, subcontractors,
consultants, experts, or advisors and who are not
Government officers or emp;nyces a? defined it. 2.104-
4 (d>.
-------
FAC 90—2 NOVEMBER 30,1990
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 3.1044
(2) Participation in ihe negotiation or performance or
any other contract of the competing tonne tor.
(3) General scientific and technical wort on an inde-
pendent research and development project, unless such
work involves the negotiation or performance of a spe-
cific contract that the individual worked on as a
Government employee.
(4) Participation with respect to a subcontractor who
is a competing contractor unless—
(i) The subcontractor is a first or second tier sub-
contractor and the subcontract is for an amount thai
is in excess of $100,000; or
(U) The subcontractor significantly assisted the
prime contractor with respect to negotiation of the
prime contract; or
(iii) The procurement official involved in the
award or modification of the prime contrvt personal-
ly directed or recommended the particular subcon-
tractor as a source for the subcontract: or
(iv) The procurement official personally reviewed
and approved the award or modification of the subcon-
tract A contracting officer's consent, in accordance
with Pan 44, to the placement of a subcontract or. with
respect to architect-engineer contracts, the substitution
of a subcontractor, associate, or consultant, docs not
constitute approval of the subcontract, subcontractor,
associate, or consultant. Similarly, approval of a con-
tractor's purchasing system does not constitute
approval of a particular subcontract or subcontractor.
(5) An individual who has been panted a waiver by
the President in accordance with subsection 27(f)(3) of
the Act. Waivers under that subsection may be granted
only to a civilian officer or employee of the Executive
branch other than an officer and employee in the
Executive Office of the President who, after his or her
Federal Government employment is terminated, is or
will be engaged in activities at a Government-owned,
contra: tor-opera ted entity at which he or she served as
an officer or -employee immediately before his or her
Federal Government employment began. Subsection
27(0(3) >s not effective until June 1,1991.
(6) As individual whose only personal and substan-
tia) participation in the procurement occurred during the
period December 1,1989, through May 31,1991.
3J044 Knowing violations, duty to Inquire, and ethics
advisory opinions
(a) Knowing violations. Neither a procurement official
nor a competing contractor violates the restrictions set forth
in 3.104-3 unless the prohibited conduct is engaged in
knowingly. For these purposes, conduct is not "blowing"
when—
(1) A competing contractor engages in specific con-
duct after having satisfied Ihe duty to inquire under
paragraphs (b), (c). and (d) of this subsection, or when
the competing contractor engages in conduct based upon
good faith reliance on an agency ethics advisory opinion
issued 10 a current or former procurement official under
paragraph (e) of this subsection.
(2) A procurement official engages in specific con-
duct after having satisfied the duty to inquire under
paragraphs, (b). (c), and (d) of this.subsection or has
acted in good faith relianee on an ethics advisory
^pinion obtained tinder paragraph (e) of 'his subsec-
tion.
(b) Duty io inquire—general.
(1) For some procurements, neither competing con-
tractors nor all procurement officials will have knowl-
edge as to when the conduct ofa particular procurement
has begun. However, certain conduct and activities that
are prohibited by the Act would be inappropriate at any
time. There are prohibitions on the receipt of gratuities
from agency contractors that apply without regard to
whether an employee is inyolved in the conduct of a
particular procurement. Similarly, potential contractors
should not solicit, and agency personnel should not
offer, proprietary or source selection information at any
time. However, potential contractors may offer, and
Government employees may solicit, employment except
as prohibited by law.
(2) Agency personnel shall be presumed to know
the procurements for which they are procurement offi-
cials. Contractor personnel are presumed to know the
procurements for which the organization they represent
is reasonably likely to be competing. Individuals who
do not know whether they arc procurement officials, or
whether the organization they represent is or is reason-
ably likely to become a competing contractor, should
defer any discussions regarding employment until these
questions are resolved by consulting appropriate parties
within their respective organizations. Agency person-
nel who cannot ascertain, after discussions with the
contracting officer or the Source Selection Authority if
the contracting officer is not the Source Selection
Authority, whether they are procurement officials may
request an ethics advisory opinion under paragraph (e)
of this subsection for purposes of determining their sta-
tus.
(c) inquire—employment discussions.
(1) A contractor who wishes to discuss employment
opportunities with an individual whose duties and func-
tions may make that individual a procurement official
(see 3.10*-4(h)) should ask if thai individual is a pro-
curement official for a procurement for which the eon*
tractor is a competing contractor or is likely to become a
competing contractor before conducting any discussion
related to employment. A competing contractor shall
not be considered to have knowingly violated the prohi-
*3-11
-------
3.1044
FEDERAL ACQUISmON REGULATION (FAR)
bitions set forth in subsection 27(a)(1) of (he Act (see.
3.l04-3(a}{])) if the contractor has made an inquiry in
good faith of the possible procurement officii] and has
bttn advised that the individual is not a procurement
official for any procurement for which the contractor is
or is reasonably likely to become a competing contrac-
tor, or is advised thai the procurement official has been
recused from participation in the procurement in accor-
dance with 3.1W-6.
(2) A procurement official may not solicit or engage
in employment or business opportunity discussions with
a competing contractor or a contractor who is reason-
ably likely to become a competing contractor unless the
procurement ofTicial has been recused from participation
in the procurement in accordance with the procedures a:
3.104-6.
(3) A procurement official who wishes to solicit
employment from, or discuss employment with, a con-
tractor and does not know if the contractor is or is rea-
sonably likely to become a competing contractor -should
ask whether the contractor is or is reasonably likely to
become a competing contractor on any procurement for
which the individual is serving as a procurement ofTi-
cial. The procurement official—
(i) May rely on the contractor s representation
thai it is not or is not likely to become a compeung
contractor, and enter inio employment or business
opportunity discussions with that contractor or
(ii) Shall not. if the contractor represents that it is
or is reasonably likely to become a competing con-
tractor. enter into employment or business opportuni-
ty discussions with that contractor. If the procure-
ment official is an eligible procurement official as
defined ai 3.1(>i-6(c). and desires to pursue discus-
sions with that contractor, the procurement official
must first seek and obtain written authorization for
recusal in accordance with the procedures at 3.10i-6
before entering into father discussions with that con-
in: tor.
(4) A procurement official shall not be considered to
have knowingly violated the prohibitions set forth in
subsection 27(b)(1) of the Act (see 3.10i-3(b)(l)) if—
(i) The procurement official has made inquiry in
good faith of the potential contractor, and has been
advised that the contractor is not or will not be a
competing contractor on a procurement under the
responsibility of the procurement official: or
(ii) The procurement official has been recused
from participation in the procurement.
(d) Dury to inquire—proprietary and source selection
information.
(1) A competing contractor shall not be considered
to have knowingly violated the prohibitions in subsec-
tion 27(a)(3) of the Act (see 3.100(a)(3)) if. before
proprietary or source selection information was solicited
3-12 (90-2)
or obtained, the contractor—
(i) Had made an inquiry in good faith of the con-
tracting officer (or, if a contracting officer has not
beer appointed, the Head of the Agency or his or her
designee) regarding whether information was propri-
etary or source selection information; and
(ii) Had been advised by such official that the
information was not proprietary or source selection
information.
(2) A procurement official shall not be considered to
have knowingly violated the prohibitions in subsection
27(bX3) of the Act (see 3.104-3{bX3)) if. prior u> dis-
closing information, the procurement official had made
an inquiry in good faith of the contracting office/ (or. if
a contracting officer has not been appointed, the Head of
the Agency or his or her designee) and had been advised
thai—
(i) The information was not proprietary or source
selection information; or
(ii) The information is proprietary or source
selection information and the individual to whom the
procurement official wishes to disclose the informa-
tion has been authorized access to such information
by the Head of the Agercy or the contracting officer.
(3) No person who is given authorized or unautho-
rized access to proprietary or source selection informa-
tion-shall be considered :o have knowingly violated the
prohibition in subsection 27(d) of the Act (see 3.104-
3(c)) if, before disclosing such information, the per-
son—
(i) Had rrude an inquiry in good faith of the con-
tracting officer (or. if a contracting officer has not
been appointed, the Head of the Agency or his or her
designee) as to whether or not the individual to
whom he seeLs to disclose the proprietory or source
selecuon inlormaiion has been authorized access to
such information by the Head of the Agency or (he
contracting officer, and
(ii) Had been advised by such official that such
^ individual has been so authorized.
UJ (e) Ethics advisory opinions. (1) An employee or for-
mer employee of an agency who is or was a procurement
official may request an ethics advisory opinion from the
agency ethics official as io whether specific conduct which
has not yet occurred would violate section 27 of the ACL
A3t individual who cannot determine, after discussions with
the contra:ting officer (see subparagraph (b)(2) of this sub-
section). if he or she is or was a procurement official may
request an ethics advisory opinion for the purpose of deter-
mining his or her status. Ethics advisory opinions may not
be obtained, however, for the purpose of establishing
whether—
(i) Prior to bid opening or receipt of proposals, a
particular contractor is a competing contractor
(ii) Items of inforrr^uor, constitute propneiary or
-------
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 3.1W-9
source selection information as defined in 3.104-4; or
(iii) Proprietary or source selection information
may be disclosed.
Questions regarding proprietary and source selection infor-
mation shall be referred to the contracting officer or, if a
contracting office has hoi been appointed, the Head or the
Agency or his or her designee (see subparagraphs (dXl)
through (d)(3) of this subsection). Questions regarding a
contractor's status as a competing contractor shall b.
resolved in accordance with subparagraph (c)(3) of this
subsection.
(2) The request for an advisory opinion shall be sub-
mitted in writing, shall be dated and signed, and shall.
include all information reasonably available to the pro-
curement official or former procurement official that is
relevant to the inquiry. As a minimum, the request shall
include—
(i) Information about the procurement in which
the individual was or is involved, including eonnct
or solicitation numbers, dates of solicitation or
award, and a description of the goods or services pro-
cured or to be procured;
(ii) Information about the individual's participa-
tion in the procurement, including the dates or time
periods of thai, participation, and the nature of the
individual's duties or responsibilities;
(iii) Information about the competing contractor
who would be a party 10 the proposed conduct, and
the nature of the competing contractor's interest in
the procurement.
(iv) A description of the possible gratuity or other
thing of value if the request concerns conduct thai
might violate the prohibition of subsection 27(b)(2)
of the Act. It shall be the responsibility of the indi-
vidual requesting an advisory opinion to furnish an
appraisal or good faith esu'mate of market value
where the value of an item is in question.
(v) Specific information about the particular
duties to be performed on behalf of (he competing
contractor if the request concerns conduct thai might
violate either or both of the prohibitions of subsec-
tion 27(0 of the Acl Where the issue concerns
whether employment with a subcontractor is permis-
sible under subsection 27(f)(2), the request shall
include information about the subcontract level and
dollar amount, the subcontractor's role in assisting
the prime contractor in negotiating the prime con-
tract, and the individual's role in directing or recom-
mending the subcontractor to the prime contractor as
a source for the subcontract or reviewing aiid approv-
ing the awarder modification of the subcontract
(3) Within 30 days after the date a request contain-
ing complete information is received, or as soon there-
after as practicable, the agency ethics official shall issue
an opinion as to whether proposed conduct is proper of
would violate section 27 of the Act.
(i) Where complete information b not included in
the request, the agency ethics official may ask the
requester to provide any information reasonably
available to thai person, and the 30-day period will
run from the date that additional information is
received. Additional information may also be
requested from other persons, including the Source
Select n Authority, the contracting officer, or the
requester's immediate supervisor.
(ii) Where the opinion cannot be issued within 30
days, the reason for the delay will be documented in
the file. Acceptable reasons for delay include, but are
not limited to. the necessity for the agency ethics
official to independently develop information not
reasonably available to the requester, or to verify
questionable information furnished by the requester.
(Iii) In issuing an opinion, the agency ethics offi-
cial may rely upon the accuracy of information fur-
nished by the requester or other agency sources,
unless he has reason to believe thai the information is
fraudulent, misleading, or otherwise incorrect.
(4) A copy of the request and ethics advisory opin-
ion shall be retained for a period of 6 years. Agencies
shall not provide copies of the advisory opinions to any
person other than the requester, except with the express
authorization of the requester or where release is other-
wise permitted by law.
(5) Where the requester engages in conduct in good
faith reliance upon an ethics advisory opinion, or a com-
peting contractor engages in conduct based upon good
faith .reliance on the requester's ethics advisory opinion,
nehh'er the requester nor the competing contractor shall
be found to have knowingly violated the restriction in
issue. Where the requester or the competing contractor
has actual knowledge or reason id believe thai the opin-
ion is based upon fraudulent, misleading, or otherwise
incorrect information provided by the requester, their
reliance upon the opinion will not be deemed to-be in
good faith.
3.104-9 Certification requirements.
(a) Applicability. Subsection 27(e) of the Act requires
certifications, prior to the award of a Federal agency con-
trast or contract modification for property or services in
excess of SI00,000 awarded or executed on or after
December 1,1990, by the officer or employee of the con-
tractor responsible for the ofTer or bid for thai particular
contract or eonnct modification for property or services,
and by the contracting officer for thai procurement
(b) Competing contractor unification.
(1) Except as provided in 3.104-9(0. contracting
officers shall require the competing contractor to—
CO Certify in writing to the contracting officer
(FAC90-2) 3-13
-------
3.1CM-9
FEDERAL ACQUISITION REGULATION (FAR)
responsible for the procurement that, to the best of
his or her knowledge and belief, such officer or
employee of the competing contractor has no infor-
mation concerning a violation or possible violation of
subsections 27(a). (b). (d). or (0 of the Act (see
3.104-3) as implemented in the FAR; or
(ii) Disclose to such contracting officer any and
all such information, and certify in writing to such
contracting officer thai any and all such informaiion
has been disclosed; and
(iii) Certify in writing to such contracting officer
thai, to the best of his or her knowledge and belief,
each officer, employee, agent, representative, and
consultant of such competing contractor who, on or
after December 1. 1990. has p&nicipaied personally
and substantially in the preparation or submission of
such bid or offer, or in a modification of a contrct.
as the case may be. has certified in writing to such
competing contractor that he or she—
(A) Is familiar with, and will comply pith, the
requirements of subsection 27(a) of the Act (see
3.104-3) as implemented in the FAR; and
(B) Will report immediately to the officer or
employee of the competing contractor responsible
for the offer or bid for any contract or the modifi-
cation of a contract, as the case may be, any infor-
mation concerning a violation or possible viola-
lion of subsections 27(a). (b). (d). or (f) of the Act
(see 3.104-3). occurring on or after December 1,
1990, as implemented in the FAR.
(2) Subcontractors arc not required to submit the cer-
tificate required by subsection 27(e)(1) of the Act.
However, nothing in 3.10* precludes a competing contra -
tor from requesting certifications from its subcontractors.
(3) The signed certifications prescribed in 3.104-10
shall be submitted as follows:
(i) Procurements exceeding $100,000 using
sealed bidding procedures
(A) For procurements using sealed bidding
procedures, the siped certifications shall be sub-
mitted by each bidder with the bid submission,
except for procurements using two-step sealed
bidding procedures (see Subpart 14.5). For those
procurements, the certifications shall be submiued
with submission of the step two sealed bids. A
certificate is not required for indefinite delivery
contracts (see Subpart 16.5) unless the total esti-
mated value of all orders eventually to be placed
under the contract is expected to exceed SI00.000.
(5) For contracts and contract modifications
which include options, a certificate is required
when the aggregaie value of the contract or con-
tract modification and all options (see 3.104.4(e))
exceeds Si00.000.
(C) Failure of a bidder to submit the signed
3-14 (FAC90-2)
certificate with its bid shall render the bid nonre-
sporuive.
(ii) Procurements exceeding 1100.000 using
other than sealed bidding procedures:
(A) For procurements, including contract mod-
ifications, made using procedures other than
sealed bidding, the signed certifications shall be
submiued by the successful ofTeror to the con-
tracting >fficer within the time period specified by
the contracting officer when requesting the certifi-
cates, except as provided in subdivisions
(b)(3)(ii)(B) through (F) of this subsection! In no
event shall the certificate be submiued subsequent
to award of a contract or execution of a contract
modification.
(B) For letter contracts, other unpriced con*
tracts, or unpriced contract modifications, whether
or not the unpriced contract or modification con-
tains a maximum or not to exceed price, the
signed certifications shall be submiued prior to the
award of the letter contract, unpriced contract, or
unpriced contract modification, and prior to the
definitiiaiion of the letter contract or the establish-
ment of the price of the unpriced contract or
unpriced contract modification. The second certi-
fication shall apply only to the period between
award of the letter contract and execution of the
document dcfinitizing the letter contract, or award
of the unpriced contract or unpriced contract mod-
ification and execution of the document establish-
ing the definitive price of such unpriced contract
or unpriced control modification.
' "(C) For basic ordering agreements, prior to the
execution of a priced order, prior to the execution
of an unpriced order, whether or not the unpriced
order contains a maximum or not to exceed price;
and prior to establishing the price of an unpriced
order. The second certificate to be submitted for
unpriced orders shall apply only lo the period
between award of the unpriced order and execu-
tion of the document establishing the definitive
price for such order.
(D) A certificate is not required for indefinite
delivery contracts (see Subpart 16.5) unless the
total estimated value of all orders eventually to be
placed under the contract is expected to exceed
S100.000.
(E) For contracts and contract modifications
which include options, a certificate is required
when the aggrepte value of the contract or con-
tract modification and all options exceeds
SI 00.000.
(F) For purposes of contracts entered into
under section 8(a) of the SBA. the business entity
with whom the SBA contracts, and not the SBA,
-------
PART 3—IMPROPER BUSINESS PRACTICES, AND PERSONAL CONFLICTS OF INTEREST 3.104-9
thai] be required 10 comply with the unification
requirements of subsection 27(e) The SBA shall
obtain ihe signed certificate from the business enti*
ty, and forward the certificate to the contracting
officer prior 10 the award of a contract to the SBA
(G) Failure of an offeror to submit the signed
certificate within the time prescribed by ihe con-
tracting officer is a failure to comply with a mate*
rial requirement of (he solicitation and shall cause
the offer to be rejected.
(c) Contracting officer certifications.
(1) In accordance with subsection 27(e)(2) of the
Act, a Federal agency may not award a contract for the
procurement of property or services, or agree to a modi*
fication of any contract, if the contract or contract modi*
ft cation exceeds S100,000, unless the contracting officer
responsible for such procurement—
(i) Certifies in writing to the head of such agen-
cy that, to the best of his or her knowledge and
belief, the contracting officer has no information
concerning a violation or possible violation of sub*
sections 27(a). (b), (d), or (0 of the Act'(see 3.104.
3), as implemented in the FAR, pertaining to such
procurement; or
(ii) Discloses to the head of such agency any and
all such information and certifies in writing that any
and all such information has been disclosed. •
(2) Immediately prior to contract award or execution
of a contract modification, the contracting officer shall
execute the following certificate and maintain the com*
pleied certificate in the contract file:
CONTRACTING OFFICER CERTIFICATE OF
PROCUREMENT INTEGRITY
1. L [Same of contacting officer], hereby certify that,
to the best of my knowledge and belief, with the exception
of any information described in this certificate, have no
information concerning a violation or possible violation of
subsections (a), (b),(d), or (0 of section 27 of the Office of
Federal Procurement Policy Act* (41 U.S.C. 423), as
implemented in gie FAR, occurring during the conduct of
this procurement (contract/modification number).
2. Violations or possible violations: (Continue on
plain bond paper if necessary, end label Contracting
Officer Certificate of Procurement Integrity (Continuation
Sheet). ESTER "NONE" IF NONE Of/575.)
(,Signature of contracting officer and date)
" Subsections 27(a), (b), and (d), are effective on
December 1,1990. Subsection 27(0 is effective on June 1,
1991.
THIS CERTIFICATION CONCERNS A MATTER WITH-
IN THE JURISDICTION OF AN AGENCY OF THE
UNrTED' STATES AND THE MAKING OF A FALSE,
FICTITIOUS, OR FRAUDULENT CERTIFICATION
MAY RENDER THE MAKER SUBJECT TO PROSECU-
TION UNDER TITLE 18. UNITED STATES CODE.
SECTION 1001.
(End of certification)
(d) Additional certifications.
(1) Subsection 27(e)(3) of the Act provides thai Ihe
head of a Federal agency may require any procurement
official or any competing contractor, at any time during
the conduct of any Federal agency procurement of prop*
eny or services
(i) To certify in writing that, to the best of his or
he knowledge and belief, such procurement official
or the officer or employee of Ihe competing contrac-
tor responsible for the oiler or bid for a contract or
ihe modification of a contract, has no information
concerning a violation or possible violation of sub-
sections 27(a), (b), (d), or (0 of the Act (see 3.104*
3), as implemented in the FAR occurring during the
procurement: or
(ii) To disclose any and all such informauon and
lo certify in writing that any and all such information
has been disclosed.
(2) In addition to the Head of the Agency, additional
certifications may be required only by the HCA or his or
her designee, provided that the designee is an individual
of General Officer, Rag, SES or equivalent rank and is
at least one organizational level above the contracting
officer.
(3) Any additional certifications shall be submitted 10
the contracting officer untess another person is specified
by the individual requiring ihe additional certifications.
(4) Each procurement official or competing contrac-
tor shall be afforded a reasonable time to comply with
the additional certification requirements.
(5) A competing contractor's failure lo submit any
additional certifications that may be required shall cause
the competing contractor's offer to be rejected.
(e) Recordkeeping requirements.
' (1) In accordance with subsections 27(e)(3)(A) and
(B) and 27(e)(7)(A) of the Act. the contracting officer
responsible for ihe award or modification of a contract
in excess of.SI00,000 shall maintain, as pan of the con-
tract Hie—
G) All competing contractor, contracting officer,
and procurement official certifications required by
subsections 27(e)(1). (e)(2), and (e)(4) of the Act.
and any additional certifications required by subsec-
tion 27(e)(3) of the Act for that particular procure-
menu
(ii) All certifications required by subsection 27(1)
of the An (see 3.104*12) from individuals acting as
procurement officials on behalf of the procuring
agency, who are, or are employed by, contractors.
(FAC 90-2) 3*15
-------
3.1CM-10
FEDERAL ACQUISITION REGULATION (FAR)
subcontractors, consultants, experts, or advisori
(other than competing contractors).
(iii) A record of all persons who have been autho-
rized by the Head of the Agency or the contracting
officer to have access to proprietary or source seiec-
lion information regarding the procurement. When
classes of persons have been authorized, this record
shall identify the class of persons so authorized and,
to the maximum extent practicable, the names of the
individuals within the class.
(2) Certifications obtained from Government officers
or employees (see 3.104-4(d)) who arc required to sub-
mit a certification under subsection 27(1) of the An shall
be maintained in accordance with agency procedures.
(3) Ethics advisory opinions shall be retained, in
accordance with agency procedures, for a period of 6
yean.
(0 Exceptions to certification requirements. Pursuant
to subsection 27(e)(7)(B) of the Act. certification require-
ments set fonh in 3.104-9 do not apply—
(1) To contracts with a foreign government or an
international organization that are not required to be
awarded using-competitive procedures pursuant to sec-
lion 303(c)(4) of ihe Federal Properly and
Administrative Services Act of 19*9 (41 U.S.C.
253(c)(4), or section 2304(c)(4) of title 10. United
Suits Code; or
(2) In an exceptional case, when the Head of the
Agency concerned determines in wriung thai the certifi-
cation requirement should be waived. This authority
may not be delegated. The contracting officer shall sub-
mit the request for waiver in accordance with agency
procedures. The request shall clearly identify the pro-
curement or class of procurements and provide ihe ratio-
nale for the requested waiver. The decision of the agen-
cy head shall state the reasons for approving or disap-
proving.the waiver. The agency head shall promptly
notify Congress in^writing of each waiver approved.
Procurements for which a waiver may be appropriate
include—
(i) Where prices arc set by law or regulation;
(ii) Where terms and conditions of a contract are
specified by an agreement with a foreign government
or governments;
(iii) Where supplies or services art provided by
foreign nationals to United States facilities overseas
for use outside the United Stater,
(iv) Where a foreign government specifies a par-
ticular U.S. contractor to satisfy its requirements (see
6.302-4 (b)(1)).
3.104-10 Solicitation provision and contract clauses.
(a) The contracting officer shall insert the provision at
52.203-8. Requirement for Certificate of Procurement
Integrity, in all solicitations where the resultant contract
3-16 (FAC 90-2)
award is expected to exceed 5100,000, unless, pursuant to
3.104-9(0. » certification is not required or a waiver has
beer granted. For procurements using other than sealed
bidding procedures, the contracting officer shall substitute
Alternate I for paragraph (c) of thai provision.
(b) The contracting officer shall insert the clause at
52.203-9, Requirement for Certificate of Procurement
Integrity—Modification, in all solicitations where the
resultant contract aw rr*
-------
PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
3.202
eer's conclusion does not agree with that conclusion,
he or the shall advise the contracting officer 10 with-
hold award and shall promptly forward the informa-
tion and documentation to the HCA or his or her
designee.
(3) If the contracting officer determines thai the vio-
lation Of possible violation impaeu the procurement, the
contracting officer shall promptly forward the informa-
tion u> the HCA or his or her designee.
(b) The HCA or his or her designee receiving any infor-
mation describing an actual or possible violation of subsec-
tion! 27(a), (b), (d). or (0 of the Act, shall review all infor-
mation available and laIce appropriate action in accordance
with agency procedures, such as— -
(1) Advising the contracting officer to continue with
the procurement;
(2) Causing an investigation to be conducted;
(3) Referring the information disclosed to appropri-
ate criminal investigative agencies: or
(4) Determining thai a violation occurred.
(c) Prior to determining that a competing contractor
(see 3.104-4(b)) has violated the Act, the HCA or his or her
designee may request information from appropriate parties
regarding the violation or possible violation when consid-
ered in ihc best interests of the Government.
(d) If the HCA or his or her designee determines thai
the prohibitions of section 27 of the Act have been violat-
ed, then the HCA or his or her designee may direct the con-
tracting officer to-
Cl) If a contract has not been awarded, or a contract
modification has not been executed—
(i) Cancel the procurement;
(ii) Disqualify an offeror, or
(iii) Take any other appropriate actions in the
interests of the Government.
(2) If a contract has been awarded or a contract mod-
ification has been executed—
(i) Effect appropriate contractual remedies,
including profit recapture as provided for in the
clause at 52.203-10, Price or Fee Adjustment for
Illegal or Improper Activity,
(ii) Void or rescind the contract, or contract modi-
fication; or
(iii) Take any other appropriate actions in the ben
interests of the Government.
(3) Refer the matter to the agency suspension and
debarment official.
(e) Pie HCA or his or her designee shall, in his or her
best judgment, recommend -or direct an administrative or
contractual remedy commensurate with the severity and
effect of the violation.
(0 If (he HCA or his or her designee receiving informa-
tion concerning a violation or possible violation determines
that award is justified by urgent and compelling circum-
stances. or is otherwise in the interests of the Government.
he OT;She may, authorize the contracting officer to awanfthe
contract or execute the contract modification after notifica-
tion to the Head of the Agency in accordance with agency
procedures.
(g) The designee of the HCA referenced in paragraphs
(¦). (b). (O. (d). and (e) of this subsection must be an
Individual at least one organizational level above the con-
tracting officer and be of General Officer, Flag. SES or
equivalent rank.
3.104-12 Ethics program training rtqulrtaeatt.
(a) Subsection 27(1) of the Act provides that the head of
each Federal agency shall establish a procurement ethics
training program for its procurement officials. The pro-
gram shall, as a minimum—
(1) Provide for the distribution of a written explana-
tion of subsections 27(a) through (f) of the Act to such
procurement officials; and
(2) Require each such procurement official, as a con-
dition of serving as a procurement official, to certify in
writing thai he or she is familiar with the provisions of
subsections 27(b), (c), and (e) of the Act and will not
engage in any conduct prohibited by such subsections,
and will rcpon immediately to the contracting officer
any information concerning a violation or possible vio-
lation of subsections 27(a), (b). (d). or (f) of the Act is
implemented in the FAR.
(3) Certifications made under section 27 as original-
ly enacted and implemented in the FAR do not satisfy
the certification requirements of subparagraph (a)(2) of
this subsection. Agencies may use Optional Form 333
at 33.302-333 to obtain the certifications required by
subparagraph (a)(2) of this subsection.
(b) Contractors, subcontractors, consultants, experts, or
advisors (other than competing contractors) are responsible
for establishing a procurement ethics training program for
individuals in their employ who may serve as procurement
officials on behalf of a Federal agency. The program shall,
as a minimum, comply with subparagraphs (a)(1) and
(a)(2) of this subsection.
SUBPART 3.2—CONTRACTOR GRATUITIES TO
GOVERNMENT PERSONNEL
3.201 Applicability.
This subpart applies to all executive agencies, except
that coverage concerning exemplary damages applies only
lo the Department of Defense (10 U.S.C. 2207).
3 J02 Contract clause.
The contracting officer shall insert the clause at 52303-3,
Gravities, in solicitations and contracts, except those for per-
sonal services and those between military departments or
defense agencies and foreign governments that do not obli-
gate any funds appropriated to the Department of Defense.
(FAC90-2) 3-17
-------
3-203
3.203 Reporting suspected violation* or the Gratuities
clause.
Agency personnel shall report suspected violations or the
Gratuities clause to the contracting officer or other designat-
ed ofTicial in accordance with agency procedures. The agen-
cy reporting procedure* shall be published as an implemen-
tation of this secbon 2.203 and shall clearly specify—
(a) Whai to report and how to report it; and
(b) The channels through which reports mr 41 U5.C. 253(BXc) and 10
U.S.C. 2305(bX5) to report to the Anomey General any bids
or proposals thai evidence a violation of the antitrust laws.
These reports are ir addition to those required by Subpan 9.4.
(b) The antitrust laws are intended to ensure that mar-
kets operate competitively. Any agreement or mutual
understanding among competing firms that restrains the
natural operation of market forces is suspect. Paragraph (c)
below identifies behavior patterns thai arc often associated
with antitrust violations. Activities meeting the descrip-
tions in paragraph (c) are not necessarily improper, but they
are sufficiently quesuoruble to warrant notifying the appro-
- priate authorities, in accordance with agency procedures..
(c) Practices or events that may evidence violations of
the antitrust laws include—
(1) The existence of an "industry price list" or "price
agreement" to which contractors refer in formulating
their offers;
(2) A sudden change from competitive bidding to
identical bidding;
(3) Simultaneous price increases or follow-the-leadcr
pricing;
(4) Rotation of bids or proposals, so that each com-
petitor takes a turn in sequence as low bidder, or so that
certain competitors bid low only on some sizes of con-
tracts and high on other sizes;
(5) Division of the market, so that certain competi-
tors bid low only for contracts let by certain agencies, or
for contracts in certain geographical areas, or on certain
products, and bid high on all other jobs;
(6) Establishment by competitors of a collusive price
estimating system;
(7) The filing of a joint bid by two or more competi-
tors when at least one of the competitors has sufficient
technical capability and productive capacity for contract
performance;
(8) Any incidents suggesting direct collusion among
competitors, such as the appearance of identical calcula-
tion or spelling errors in two or more competitive oflen
or the submission by one Ami of offers for other firms;
and
-------
STANDARDS OF ETHICAL CONDUCT
FOR EMPLOYEES OF THE EXECUTIVE BRANCH
Final Regulation Issued by
the U.S. Office of Government Ethics
To be Codified at 5 C.F.R. Part 2635
The following document is an informal computer-generated version of the regulatory
text of the final ethical conduct standards rule, the official version of which was
published at 57 Federal Register 35006-35067 (August 7,1992), with an effective date
of February 3, 1993. The authority citation for this regulation is: 5 United States
Code §§ 7351 & 7353; 5 United States Code Appendix (Ethics in Government Act of
1978); and Executive Order 12674, 54 Federal Register 15159-15162, 3 Code of
Federal Regulations, 1989 Compilation, pp. 215-218, as modified by Executive Order
12731, 55 Federal Register 42547-42550, 3 Code of Federal Regulations, 1990
Compilation, pp. 306-311.
-------
Table of Contents
Subpart A •• General Provisions Page
§ 2635.101 Basic obligation of public service 3
§ 2635.102 Definitions 4
§ 2635.103 Applicability to members of the uniformed services 6
§ 2635.104 Applicability to employees on detail 6
§ 2635.105 Supplemental agency regulations 7
§ 2635.106 Disciplinary and corrective action 8
§ 2635.107 Ethics advice 9
Subpart B - Gifts From Outside Sources
§ 2635.201 Overview 10
§ 2635.202 General standards 10
§ 2635.203 Definitions 11
§ 2635.204 Exceptions 14
§ 2635.205 Proper disposition of prohibited gifts 24
Subpart C •• Gifts Between Employees
§ 2635.301 Overview 25
§ 2635.302 General standards 26
§ 2635.303 Definitions 26
§ 2635.304 Exceptions 27
Subpart D •• Conflicting Financial Interests
§ 2635.401 Overview 30
§ 2635.402 Disqualifying financial interests 30
§2635.403 Prohibited financial interests 36
Subpart E •• Impartiality in Performing Official Duties
§ 2635.501 Overview .39
§ 2635.502 Personal and business relationships 40
§ 2635.503 Extraordinary payments from former employers 45
(Continued on next page)
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Table of Contents (Continued)
Subpart F -- Seeking Other Employment Page
§ 2635.601 Overview 47
§ 2635.602 Applicability and related considerations 47
§ 2635.603 Definitions 48
§ 2635.604 Disqualification while seeking employment 51
§ 2635.605 Waiver or authorization permitting participation
while seeking employment 53
§ 2635.606 Disqualification based on an arrangement concerning
prospective employment or otherwise after negotiations 54
Subpart G - Misuse of Position
§ 2635.701 Overview 55
§ 2635.702 Use of public office for private gain 55
§ 2635.703 Use of nonpublic information 58
§ 2635.704 Use of Government property 59
§ 2635.705 Use of official time 60
Subpart H -• Outside Activities
§ 2635.801 Overview 61
§ 2635.802 Conflicting outside employment and activities 63
§ 2635.803 Prior approval for outside employment and activities 64
§ 2635.804 Outside earned income limitations applicable to certain
Presidential appointees and other noncareer employees 64
§ 2635.805 Service as an expert witness 66
§ 2635.806 Participation in professional associations [Reservedl 67
§ 2635.807 Teaching, speaking and writing 67
§ 2635.808 Fundraising activities 74
§ 2635.809 Just financial obligations 77
Subpart I -- Related Statutory Authorities
§ 2635.901 General 78
§ 2635.902 Related statutes 78
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Subpart A •• General Provisions
§2635.101
Basic obligation of public service.
(a) Public service is a public trust. Each employee has a responsibility to the United
States Government and its citizens to place loyalty to the Constitution, laws and
ethical principles above private gain. To ensure that every citizen can have complete
confidence in the integrity of the Federal Government, each employee shall respect
and adhere to the principles of ethical conduct set forth in this section, as well as the
implementing standards contained in this part and in supplemental. agency
regulations.
(b) General principles. The following general principles apply to every employee and
may form the basis for the standards contained in this part. Where a situation is not
covered by the standards set forth in this part, employees shall apply the principles
set forth in this section in determining whether their conduct is proper.
(1) Public service is a public trust, requiring employees to place loyalty to the
Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious
performance of duty.
(3) Employees shall not engage in financial transactions using nonpublic Government
information or allow the improper use of such information to further any private
interest.
(4) An employee shall not, except as permitted by subpart B of this part, solicit or
accept any gift or other item of monetary value from any person or entity seeking
official action from, doing business with, or conducting activities regulated by the
employee's agency, or whose interests may be substantially affected by the
performance or nonperformance of the employee's duties.
(5) Employees shall put forth honest effort in the performance of their duties.
(6) Employees shall not knowingly make unauthorized commitments or promises of
any kind purporting to bind the Government.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private
organization or individual.
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(9) Employees shall protect and conserve Federal property and shall not use it for
other than authorized activities.
(10) Employees shall not engage in outside employment or activities, including
seeking or negotiating for employment, that conflict with official Government duties
and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate
authorities.
(12) Employees shall satisfy in good faith their obligations as citizens, including all
just financial obligations, especially those-such as Federal, State, or local taxes-that
are imposed by law.
(13) Employees shall adhere to all laws and regulations that provide equal
opportunity for all Americans regardless of race, color, religion, sex, national origin,
age, or handicap.
(14) Employees shall endeavor to avoid any actions creating the appearance that they
are violating the law or the ethical standards set forth in this part. Whether
particular circumstances create an appearance that the law or these standards have
been violated shall be determined from the perspective of a reasonable person with
knowledge of the relevant facts.
(c) Related statutes. In addition to the standards of ethical conduct set forth in this
part, there are conflict of interest statutes that prohibit certain conduct. Criminal
conflict of interest statutes of general applicability to all employees, 18 U.S.C. 201,
203, 205, 208, and 209, are summarized in the appropriate subparts of this .part and
must be taken into consideration in determining whether conduct is proper. Citations
to other generally applicable statutes relating to employee conduct are set forth in
subpart I and employees are further cautioned that there may be additional statutory
and regulatory restrictions applicable to them generally or as employees of their
specific agencies. Because an employee is considered to be on notice of the
requirements of any statute, an employee should not rely upon any description or
synopsis of a statutory restriction, but should refer to the statute itself and obtain the
advice of an agency ethics official as needed.
§2635.102
Definitions.
The definitions listed below are used throughout this part. Additional definitions
appear in the subparts or sections of subparts to which they apply. For purposes of
this part:
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(a) Agency means an executive agency as defined in 5 U.S.C. 105 and the Postal
Service and the Postal Rate Commission. It does not include the General Accounting
Office or the Government of the District of Columbia.
(b) Agency designee refers to any employee who, by agency regulation, instruction,
or other issuance, has been delegated authority to make any determination, give any
approval, or take any other action required or permitted by this part with respect to
another employee. An agency may delegate these authorities to any number of agency
designees necessary to ensure that determinations are made, approvals are given,
and other actions are taken in a timely and responsible manner. Any provision that
requires a determination, approval, or other action by the agency designee shall,
where the conduct in issue is that of the agency head, be deemed to require that such
determination, approval or action be made or taken by the agency head in
consultation with the designated agency ethics official.
(c) Agency ethics official refers to the designated agency ethics official or to the
alternate designated agency ethics official, referred to in §2638.202(b) of this chapter,
and to any deputy ethics official, described in §2638.204 of this chapter, who has been
delegated authority to assist in carrying out the responsibilities of the designated
agency ethics official.
(d) Agency programs or operations refers to any program or function carried out or
performed by an agency, whether pursuant to statute, Executive order, or regulation.
(e) Corrective action includes any action necessary to remedy a past violation or
prevent a continuing violation of this part, including but not limited to restitution,
change of assignment, disqualification, divestiture, termination of an activity, waiver,
the creation of a qualified diversified or blind trust, or counseling.
(f) Designated agency ethics official refers to the official designated under §2638.201
of this chapter.
(g) Disciplinary action includes those disciplinary actions referred to in Office of
Personnel Management regulations and instructions implementing provisions of title
5 of the United States Code or provided for in comparable provisions applicable to
employees not subject to title 5, including but not limited to reprimand, suspension,
demotion, and removal. In the case of a military officer, comparable provisions may
include those in the Uniform Code of Military Justice.
(h) Employee means any officer or employee of an agency, including a special
Government employee. It includes officers but not enlisted members of the uniformed
services. For purposes other than subparts B and C of this part, it does not include
the President or Vice President. Status as an employee is unaffected by pay or leave
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status or, in the case of a special Government employee, by the fact that the
individual does not perform official duties on a given day.
(i) Head of an agency means, in the case of an agency headed by more than one
person, the chair or comparable member of such agency.
(j) He, his, and him include she, hers and her.
(k) Person means an individual, corporation and subsidiaries it controls, company,
association, firm, partnership, society, joint stock company, or any other organization
or institution, including any officer, employee, or agent of such person or entity. For
purposes of this part, a corporation will be deemed to control a subsidiary if it owns
50 percent or more of the subsidiary's voting securities. The term is all-inclusive and
applies to commercial ventures and nonprofit organizations as well as to foreign,
State, and local governments, including the Government of the District of Columbia.
It does not include any agency or other entity of the Federal Government or any
officer or employee thereof when acting in his official capacity on behalf of that
agency or entity.
(1) Special Government employee means those executive branch officers or employees
specified in 18 U.S.C. 202(a). A special Government employee is retained, designated,
appointed, or employed to perform temporary duties either on a full-time or
intermittent basis, with or without compensation, for a period not to exceed 130 days
during any consecutive 365-day period.
(m) Supplemental agency regulation means a regulation issued pursuant to
§2635.105.
§2635.103
Applicability to members of the uniformed services.
The provisions of this part, except this section, are not applicable to enlisted members
of the-uniformed services. Each agency with jurisdiction over enlisted members of the
uniformed services shall issue regulations defining the ethical conduct obligations of
enlisted members under its jurisdiction. Those regulations shall be consistent with
Executive Order 12674, April 12, 1989, as modified, and may prescribe the full range
of statutory and regulatory sanctions, including those available under the Uniform
Code of Military Justice, for failure to comply with such regulations.
§2635.104
Applicability to employees on detail.
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(a) Details to other agencies. Except as provided in paragraph (d) of this section, an
employee on detail, including a uniformed officer on assignment, from his employing
agency to another agency for a period in excess of 30 calendar days shall be subject
to any supplemental agency regulations of the agency to which he is detailed rather
than to any supplemental agency regulations of his employing agency.
(b) Details to the legislative or judicial branch. An employee on detail, including a
uniformed officer on assignment, from his employing agency to the legislative or
judicial branch for a period in excess of 30 calendar days shall be subject to the
ethical standards of the branch or entity to which detailed. For the duration of any
such detail or assignment, the employee shall not be subject to the provisions of this
part, except this section, or, except as provided in paragraph (d) of this section, to any
supplemental agency regulations of his employing agency, but shall remain subject
to the conflict of interest prohibitions in title 18 of the United States Code.
(c) Details to non-Federal entities. Except to the extent exempted in writing pursuant
to this paragraph, an employee detailed to a non-Federal entity remains subject to
this part and to any supplemental agency regulation of his employing agency. When
an employee is detailed pursuant to statutory authority to an international
organization or to a State or local government for a period in excess of six months,
the designated agency ethics official may grant a written exemption from subpart B
of this part based on his determination that the entity has adopted written ethical
standards covering solicitation and acceptance of gifts which will apply to the
employee during the detail and which will be appropriate given the purpose of the
detail.
(d) Applicability of special agency statutes. Notwithstanding paragraphs (a) and (b)
of this section, an employee who is subject to an agency statute which restricts his
activities or financial holdings specifically because of his status as an employee of
that agency shall continue to be subject to any provisions in the supplemental agency
regulations of his employing agency that implement that statute.
§2635.105
Supplemental agency regulations.
In addition to the regulations set forth in this part, an employee shall comply with
any supplemental agency regulations issued by his employing agency under this
section.
(a) An agency that wishes to supplement this part shall prepare and submit to the
Office of Government Ethics, for its concurrence and joint issuance, any agency
regulations that supplement the regulations contained in this part. Supplemental
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agency regulations which the agency determines are necessary and appropriate, in
view of its programs and operations, to fulfill the purposes of this part shall be:
(1) In the form of a supplement to the regulations in this part; and
(2) In addition to the substantive provisions of this part.
(b) After concurrence and co-signature by the Office of Government Ethics, the agency
shall submit its supplemental agency regulations to the Federal Register for
publication and codification at the expense of the agency in title 5 of the Code of
Federal Regulations. Supplemental agency regulations issued under this section are
effective only after concurrence and co-signature by the Office of Government Ethics
and publication in the Federal Register.
(c) This section applies to any supplemental agency regulations or amendments
thereof issued under this part. It does not apply to:
(1) A handbook or other issuance intended merely as an explanation of the standards
contained in this part or in supplemental agency regulations;
(2) An instruction or other issuance the purpose of which is to:
(i) Delegate to an agency designee authority to make any determination, give any
approval or take any other action required or permitted by this part or by
supplemental agency regulations; or
(ii) Establish internal agency procedures for documenting or processing any
determination, approval or other action required or permitted by this part or by
supplemental agency regulations, or for retaining any such documentation; or
(3) Regulations or instructions that an agency has authority, independent of this part,
to issue, such as regulations implementing an agency's gift acceptance statute,
protecting categories of nonpublic information or establishing standards for use of
Government vehicles. Where the content of any such regulations or instructions was
included in the agency's standards of conduct regulations issued pursuant to
Executive Order 11222 and the Office of Government Ethics concurs that they need
not be issued as part of an agency's supplemental agency regulations, those
regulations or instructions may be promulgated separately from the agency's
supplemental agency regulations.
§2635.106
Disciplinary and corrective action.
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(a) Except as provided in §2635.107, a violation of this part or of supplemental agency
regulations may be cause for appropriate corrective or disciplinary action to be taken
under applicable Governmentwide regulations or agency procedures. Such action may
be in addition to any action or penalty prescribed by law.
(b) It is the responsibility of the employing agency to initiate appropriate disciplinary
or corrective action in individual cases. However, corrective action may be ordered or
disciplinary action recommended by the Director of the Office of Government Ethics
under the procedures at part 2638 of this chapter.
(c) A violation of this part or of supplemental agency regulations, as such, does not
create any right or benefit, substantive or procedural, enforceable at law by any
person against the United States, its agencies, its officers or employees, or any other
person. Thus, for example, an individual who alleges that an employee has failed to
adhere to laws and regulations that provide equal opportunity regardless of race,
color, religion, sex, national origin, age, or handicap is required to follow applicable
statutory and regulatory procedures, including those of the Equal Employment
Opportunity Commission.
§2635.107
Ethics advice.
(a) As required by §§2638.201 and 2638.202(b) of this chapter, each agency has a
designated agency ethics official who, on the agency's behalf, is responsible for
coordinating and managing the agency's ethics program, as well as an alternate. The
designated agency ethics official has authority under §2638.204 of this chapter to
delegate certain responsibilities, including that of providing ethics counseling
regarding the application of this part, to one or more deputy ethics officials.
(b) Employees who have questions about the application of this part or any
supplemental agency regulations to particular situations should seek advice from an
agency ethics official. Disciplinary action for violating this part or any supplemental
agency regulations will not be taken against an employee who has engaged in conduct
in good faith reliance upon the advice of an agency ethics official, provided that the
employee, in seeking such advice, has made full disclosure of all relevant
circumstances. Where the employee's conduct violates a criminal statute, reliance on
the advice of an agency ethics official cannot ensure that the employee will not be
prosecuted under that statute. However, good faith reliance on the advice of an
agency ethics official is a factor that may bg taken into account by the Department
of Justice in the selection of cases for prosecution. Disclosures made by an employee
to an agency ethics official are not protected by an attorney-client privilege. An
agency ethics official is required by 28 U.S.C. 535 to report any information he
receives relating to a violation of the criminal code, title 18 of the United States Code.
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Subpart B •• Gifts From Outside Sources
§2635.201
Overview.
This subpart contains standards that prohibit an employee from soliciting or
accepting any gift from a prohibited source or given because of the employee's official
position unless the item is excluded from the definition of a gift or falls within one
of the exceptions set forth in this subpart.
§2635.202
General standards.
(a) General prohibitions. Except as provided in this subpart, an employee shall not,
directly or indirectly, solicit or accept a gift:
(1) From a prohibited source; or
(2) Given because of the employee's official position.
(b) Relationship to illegal gratuities statute. Unless accepted in violation of paragraph
(c)(1) of this section, a gift accepted under the standards set forth in this subpart
shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).
(c) Limitations on use of exceptions. Notwithstanding any exception provided in this
subpart, other than §2635.204(j), an employee shall not:
(1) Accept a gift in return for being influenced in the performance of an official act;
(2) Solicit or coerce the offering of a gift;
(3) Accept gifts from the same or different sources on a basis so frequent that a
reasonable person would be led to believe the employee is using his public office for
private gain;
Example 1: A purchasing agent for a Veterans Administration hospital routinely
deals with representatives of pharmaceutical manufacturers who provide information
about new company products. Because of his crowded calendar, the purchasing agent
has offered to meet with manufacturer representatives during his lunch hours
Tuesdays through Thursdays and the representatives routinely arrive at the
employee's office bringing a sandwich and a soft drink for the employee. Even though
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the market value of each of the lunches is less than $6 and the aggregate value from
any one manufacturer does not exceed the $50 aggregate limitation in §2635.204(a)
on de minimis gifts of $20 or less, the practice of accepting even these modest gifts
on a recurring basis is improper.
(4) Accept a gift in violation of any statute. Relevant statutes applicable to all
employees include:
(i) 18 U.S.C. 201(b), which prohibits a public official from seeking, accepting, or
agreeing to receive or accept anything of value in return for being influenced in the
performance of an official act or for being induced to take or omit to take any action
in violation of his official duty. As used in 18 U.S.C. 201(b), the term "public official"
is broadly construed and includes regular and special Government employees as well
as all other Government officials;
(ii) 18 U.S.C. 209, which prohibits an employee, other than a special Government
employee, from receiving any salary or any contribution to or supplementation of
salary from any source other than the United States as compensation for services as
a Government employee. The statute contains several specific exceptions to this
general prohibition, including an exception for contributions made from the treasury
of a State, county, or municipality; and
(iii) 41. U.S.C. 423(bX2), which prohibits a procurement official from seeking,
accepting, or agreeing to receive any money, gratuity, or other thing of value from
any officer, employee, representative, agent, or consultant of a competing contractor
during the conduct of a Federal agency procurement. Implementing regulations,
including exceptions to the gift prohibition, are contained in the Federal Acquisition
Regulation, 48 CFR 3.104; or
(5) Accept vendor promotional training contrary to applicable regulations, policies or
guidance relating to the procurement of supplies and services for the Government,
except pursuant to §2635.204(1).
§2635.203
Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Agency has the meaning set forth in §2635.102(a). However, for purposes of this
subpart, an executive department, as defined in 5 U.S.C. 101, may, by supplemental
agency regulation, designate as a separate agency any component of that department
which the department determines exercises distinct and separate functions.
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(b) Gift includes any gratuity, favor, discount, entertainment, hospitality, loan,
forbearance, or other item having monetary value. It includes services as well as gifts
of training, transportation, local travel, lodgings and meals, whether provided in-kind,
by purchase of a ticket, payment in advance, or reimbursement after the expense has
been incurred. It does not include:
(1) Modest items of food and refreshments, such as soft drinks, coffee and donuts,
offered other than as part of a meal;
(2) Greeting cards and items with little intrinsic value, such as plaques, certificates,
and trophies, which are intended solely for presentation;
(3) Loans from banks and other financial institutions on terms generally available to
the public;
(4) Opportunities and benefits, including favorable rates and commercial discounts,
available to the public or to a class consisting of all Government employees or all
uniformed military personnel, whether or not restricted on the basis of geographic
considerations;
(5) Rewards and prizes given to competitors in contests or events, including random
drawings, open to the public unless the employee's entry into the conte? L or event is
required as part of his official duties;
(6) Pension and other benefits resulting from continued participation in an employee
welfare and benefits plan maintained by a former employer;
(7) Anything which is paid for by the Government or secured by the Government
under Government contract;
Note: Some airlines encourage those purchasing tickets to join programs that award
free flights and other benefits to frequent fliers. Any such benefit earned on the basis
of Government-financed travel belongs to the agency rather than to the employee and
may be accepted only insofar as provided under 41 CFR 301-1.6(b).
(8) Any gift accepted by the Government under specific statutory authority, including:
(i) Travel, subsistence, and related expenses accepted by an agency under the
authority of 31 U.S.C. 1353 in connection with an employee's attendance at a meeting
or similar function relating to his official duties which takes place away from his duty
station. The agency's acceptance must be in accordance with the implementing
regulations at 41 CFR part 304-1; and
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(ii) Other gifts provided in-kind which have been accepted by an agency under its
agency gift acceptance statute; or
(9) Anything for which market value is paid by the employee.
(c) Market value means the retail cost the employee would incur to purchase the gift.
An employee who cannot ascertain the market value of a gift may estimate its market
value by reference to the retail cost of similar items of like quality. The market value
of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any
other benefit shall be the face value of the ticket.
Example 1: An employee who has been given an acrylic paperweight embedded with
the corporate logo of a prohibited source may determine its market value based on
her observation that a comparable acrylic paperweight, not embedded with a logo,
generally sells for about $20.
Example 2: A prohibited source has offered an employee a ticket to a charitable event
consisting of a cocktail reception to be followed by an evening of chamber music. Even
though the food, refreshments, and entertainment provided at the event may be
worth only $20, the market value of the ticket is its $250 face value.
(d) Prohibited source means any person who:
(1) Is seeking official action by the employee's agency;
(2) Does business or seeks to do business with the employee's agency;
(3) Conducts activities regulated by the employee's agency;
(4) Has interests that may be substantially affected by performance or
nonperformance of the employee's official duties; or
(5) Is an organization a majority of whose members are described in paragraphs (d)
(1) through (4) of this section.
*
(e) A gift is solicited or accepted because of the employee's official position if it is from
a person other than an employee and would not have been solicited, offered, or given
had the employee not held his position as a Federal employee.
Note: Gifts between employees are subject to the limitations set forth in subpart C
of this part.
Example 1: Where free season tickets are offered by an opera guild to all members
of the Cabinet, the gift is offered because of their official positions.
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(f) A gift which is solicited or accepted indirectly includes a gift:
(1) Given with the employee's knowledge and acquiescence to his parent, sibling,
spouse, child, or dependent relative because of that person's relationship to the
employee, or
(2) Given to any other person, including any charitable organization, on the basis of
designation, recommendation, or other specification by the employee, except as
permitted for the disposition of perishable items by §2635.205(a)(2) or for payments
made to charitable organizations in lieu of honoraria under §2636.204 of this chapter.
Example 1: An employee who must decline a gift of a personal computer pursuant to
this subpart may not suggest that the gift be given instead to one of five charitable
organizations whose names are provided by the employee.
(g) Vendor promotional training means training provided by any person for the
purpose of promoting its products or services. It does not include training provided
under a Government contract or by a contractor to facilitate use of products or
services it furnishes under a Government contract.
§2635.204
Exceptions.
The prohibitions set forth in §2635.202(a) do not apply to a gift accepted under the
circumstances described in paragraphs (a) through 0) of this section and a gift
accepted in accordance with one of those paragraphs will not be deemed to violate the
principles set forth in §2635.101(b). Even though acceptance of a gift may be
permitted by one of the exceptions contained in paragraphs (a) through (1) of this
section, it is never inappropriate and frequently prudent for an employee to decline
a gift offered by a prohibited source or because of his official position.
(a) Gifts of $20 or less. An employee may accept unsolicited gifts having an aggregate
market value of $20 or less per occasion, provided that the aggregate market value
of individual gifts received from any one person under the authority of this paragraph
shall not exceed $50 in a calendar year. This exception does not apply to gifts of cash
or of investment interests such as stock, bonds, or certificates of deposit. Where the
market value of a gift or the aggregate market value of gifts offered on any single
occasion exceeds $20, the employee may not pay the excess value over $20 in order
to accept that portion of the gift or those gifts worth $20. Where the aggregate value
of tangible items offered on a single occasion exceeds $20, the employee may decline
any distinct and separate item in order to accept those items aggregating $20 or less.
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Example 1: An employee of the Securities and Exchange Commission and his spouse
have been invited by a representative of a regulated entity to a Broadway play,
tickets to which have a face value of $30 each. The aggregate market value of the
gifts offered on this single occasion is $60, $40 more than the $20 amount that may
be accepted for a single event or presentation. The employee may not accept the gift
of the evening of entertainment. He and his spouse may attend the play only if he
pays the full $60 value of the two tickets.
Example 2: An employee of the Defense Mapping Agency has been invited by an
association of cartographers to speak about his agency's role in the evolution of
missile technology. At the conclusion of his speech, the association presents the
employee a framed map with a market value of $18 and a book about the history of
cartography with a market value of $15. The employee may accept the map or the
book, but not both, since the aggregate value of these two tangible items exceeds $20.
Example 3: On four occasions during the calendar year, an employee of the Defense
Logistics Agency was given gifts worth $10 each by four employees of a corporation
that is a DLA contractor. For purposes of applying the yearly $50 limitation on gifts
of $20 or less from any one person, the four gifts must be aggregated because a
person is defined at §2635.102(k) to mean not only the corporate entity, but its
officers and employees as well. However, for purposes of applying the $50 aggregate
limitation, the employee would not have to include the value of a birthday present
received from his cousin, who is employed by the same corporation, if he can accept
the birthday present under the exception at §2635.204(b) for gifts based on a personal
relationship.
Example 4: Under the authority of 31 U.S.C. 1353 for agencies to accept payments
from non-Federal sources in connection with attendance at certain meetings or
similar functions, the Environmental Protection Agency has accepted an association's
gift of travel expenses and conference fees for an employee of its Office of Radiation
Programs to attend an international conference on "The Chernobyl Experience."
While at the conference, the employee may accept a gift of $20 or less from the
association or from another person attending the conference even though it was not
approved in advance by the EPA. Although 31 U.S.C. 1353 is the only authority
under which an agency may accept gifts from certain non-Federal sources in
connection with its employees' attendance at such functions, a gift of $20 or less
accepted under §2635.204(a) is a gift to the employee rather than to his employing
agency.
Example 5: A Navy contracting officer is participating in a procurement for
environmental cleanup services at a Navy installation that has recently been closed.
She is presently involved in negotiations with three competing contractors, one of
whom has offered her a fancy ballpoint pen embossed with its corporate logo. Even
though the pen has a market value of $18 and could be accepted under the $20 de
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minimis exception at §2635.204(a), the contracting officer cannot accept the
competing contractor's gift. Under the procurement integrity provisions at 41 U.S.C.
423, she is a "procurement official" for that contract and, except as specifically
permitted by the regulations implementing that statute, she is prohibited prior to
award from accepting a gift from a competing contractor for that contract. The
Federal Acquisition Regulation at 48 CFR 3.104 contains an exception for gifts with
a market value of $10 or less.
(b) Gifts based on a personal relationship. An employee may accept a gift given under
circumstances which make it clear that the gift is motivated by a family relationship
or personal friendship rather than the position of the employee. Relevant factors in
making such a determination include the history of the relationship and whether the
family member or friend personally pays for the gift.
Example 1: An employee of the Federal Deposit Insurance Corporation has been
dating a secretary employed by a member bank. For Secretary's Week, the bank has
given each secretary 2 tickets to an off-Broadway musical review and has urged each
to invite a family member or friend to share the evening of entertainment. Under the
circumstances, the FDIC employee may accept his girlfriend's invitation to the
theater. Even though the tickets were initially purchased by the member bank, they
were given without reservation to the secretary to use as she wished, and her
invitation to the employee was motivated by their personal friendship.
Example 2: Three partners in a law firm that handles corporate mergers have invited
an employee of the Federal Trade Commission to join them in a golf tournament at
a private club at the firm's expense. The entry fee is $500 per foursome. The
employee cannot accept the gift of one-quarter of the entry fee even though he and
the three partners have developed an amicable relationship as a result of the firm's
dealings with the FTC. As evidenced in part by the fact that the fees are to be paid
by the firm, it is not a personal friendship but a business relationship that is the
motivation behind the partners' gift.
(c) Discounts and similar benefits. In addition to those opportunities and benefits
excluded from the definition of a gift by §2635.203(b)(4), an employee may accept:
(1) Reduced membership or other fees for participation in organization activities
offered to all Government employees or all uniformed military personnel by
professional organizations if the only restrictions on membership relate to
professional qualifications; and
(2) Opportunities and benefits, including favorable rates and commercial discounts
not precluded by paragraph (c)(3) of this section:
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(i) Offered to members of a group or class in which membership is unrelated to
Government employment;
(ii) Offered to members of an organization, such as an employees' association or
agency credit union, in which membership is related to Government employment if
the same offer is broadly available to large segments of the public through
organizations of similar size; or
(iii) Offered by a person who is not a prohibited source to any group or class that is
not defined in a manner that specifically discriminates among Government employees
on the basis of type of official responsibility or on a basis that favors those of higher
rank or rate of pay; provided, however, that
(3) An employee may not accept for personal use any benefit to which the
Government is entitled as the result of an expenditure of Government funds.
Example 1: An employee of the Consumer Product Safety Commission may accept a
discount of $50 on a microwave oven offered by the manufacturer to all members of
the CPSC employees' association. Even though the CPSC is currently conducting
studies oh the safety of microwave ovens, the $50 discount is a standard offer that
the manufacturer has made broadly available through a number of similar
organizations to large segments of the public.
Example 2: An Assistant Secretary may not accept a local country club's offer of
membership to all members of Department Secretariats which includes a waiver of
its $5,000 membership initiation fee. Even though the country club is not a prohibited
source, the offer discriminates in favor of higher ranking officials.
Example 3: The administrative officer for a district office of the Immigration and
Naturalization Service has signed an INS order to purchase 50 boxes of photocopy
paper from a supplier whose literature advertises that it will give a free briefcase to
anyone who purchases 50 or more boxes. Because the paper was purchased with INS
funds, the administrative officer cannot keep the briefcase which, if claimed and
received, is Government property.
(d) Awards and honorary degrees. (1) An employee may accept gifts, other than cash
or an investment interest, with an aggregate market value of $200 or less if such gifts
are a bona fide award or incident to a bona fide award that is given for meritorious
public service or achievement by a person who does not have interests that may be
substantially affected by the performance or oonperformance of the employee's official
duties or by an association or other organization the majority of whose members do
not have such interests. Gifts with an aggregate market value in excess of $200 and
awards of cash or investment interests offered by such persons as awards or incidents
of awards that are given for these purposes may be accepted upon a written
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determination by an agency ethics official that the award is made as part of an
established program of recognition:
(1) Under which awards have been made on a regular basis or which is funded, wholly
or in part, to ensure its continuation on a regular basis; and
(ii) Under which selection of award recipients is made pursuant to written standards.
(2) An employee may accept an honorary degree from an institution of higher
education as defined at 20 U.S.C. 1141(a) based on a written determination by an
agency ethics official that the timing of the award of the degree would not cause a
reasonable person to question the employee's impartiality in a matter affecting the
institution.
(3) An employee who may accept an award or honorary degree pursuant to paragraph
(d)(1) or (2) of this section may also accept meals and entertainment given to him and
to members of his family at the event at which the presentation takes place.
Example 1: Based on a determination by an agency ethics official that the prize meets
the criteria set forth in §2635.204(d)(1), an employee of the National Institutes of
Health may accept the Nobel Prize for Medicine, including the cash award which
accompanies the prize, even though the prize was conferred on the basis of laboratory
work performed at NIH.
Example 2: Prestigious University wishes to give an honorary degree to the Secretary
of Labor. The Secretary may accept the honorary degree only if an agency ethics
official determines in writing that the timing of the award of the degree would not
cause a reasonable person to question the Secretary's impartiality in a matter
affecting the university.
Example 3: An ambassador selected by a nonprofit organization as recipient of its
annual award for distinguished service in the interest of world peace may, together
with his wife, and children, attend the awards ceremony dinner and accept a crystal
bowl"worth $200 presented during the ceremony. However, where the organization
has also offered airline tickets for the ambassador and his family to travel to the city
where the awards ceremony is to be held, the aggregate value of the tickets and the
crystal bowl exceeds $200 and he may accept only upon a written determination by
the agency ethics official that the award is made as part of an established program
of recognition.
(e) Gifts based on outside business or employment relationships. An employee may
accept meals, lodgings, transportation and other benefits:
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(1) Resulting from the business or employment activities of an employee's spouse
when it is clear that such benefits have not been offered or enhanced because of the
employee's official position;
Example 1: A Department of Agriculture employee whose husband is a computer
programmer employed by an Agriculture Department contractor may attend the
company's annual retreat for all of its employees and their families held at a resort
facility. However, under §2635.502, the employee maybe disqualified from performing
official duties affecting her husband's employer.
Example 2: Where the spouses of other clerical personnel have not been invited, an
employee of the Defense Contract Audit Agency, whose wife is a clerical worker at a
defense contractor may not attend the contractor's annual retreat in Hawaii for
corporate officers and members of the board of directors, even though his wife
received a special invitation for herself and her spouse.
(2) Resulting from his outside business or employment activities when it is clear that
such benefits have not been offered or enhanced because of his official status; or
Example 1: The members of an Army Corps of Engineers environmental advisory
committee that meets 6 times per year are special Government employees. A member
who has a consulting business may accept an invitation to a $50 dinner from her
corporate client, an Army construction contractor, unless, for example, the invitation
was extended in order to discuss the activities of the committee.
(3) Customarily provided by a prospective employer in connection with bona fide
employment discussions. If the prospective employer has interests that could be
affected by performance or nonperformance of the employee's duties, acceptance is
permitted only if the employee first has complied with the disqualification
requirements of subpart F of this part applicable when seeking employment.
Example 1: An employee of the Federal Communications Commission with
responsibility for drafting regulations affecting all cable television companies wishes
to apply Jot a job opening with a cable television holding company. Once she has
properly disqualified herself from further work on the regulations as required by
subpart F of this part, she may enter into employment discussions with the company
and may accept the company's offer to pay for her airfare, hotel and meals in
connection with an interview trip.
(4) For purposes of paragraphs (eXl) through (3) of this section, employment shall
have the meaning set forth in §2635.603(a).
(f) Gifts from a political organization. An employee who is exempt under 5 U.S.C.
7324(d) from the Hatch Act prohibitions against active participation in political
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management or political campaigns may accept meals, lodgings, transportation and
other benefits, including free attendance at events, when provided, in connection with
such active participation, by a political organization described in 26 U.S.C. 527(e).
Any other employee, such as a security officer, whose official duties require him to
accompany an exempt employee to a political event may accept meals, free attendance
and entertainment provided at the event by such a political organization.
Example 1: The Secretary of the Department of Health and Human Services is
exempt from the noted Hatch Act restrictions. He may accept an airline ticket and
hotel accommodations furnished by the campaign committee of a candidate for the
United States Senate in order to give a speech in support of the candidate.
(g) Widely attended gatherings and other events-(l) Speaking and similar
engagements. When an employee is assigned to participate as a speaker or panel
participant or otherwise to present information on behalf of the agency at a
conference or other event, his acceptance of an offer of free attendance at the event
on the day of his presentation is permissible when provided by the sponsor of the
event. The employee's participation in the event on that day is viewed as a customary
and necessary part of his performance of the assignment and does not involve a gift
to him or to the agency.
(2) Widely attended gatherings. When there has been a determination that his
attendance is in the interest of the agency because it will further agency programs
or operations, an employee may accept a sponsor's unsolicited gift of free attendance
at all or appropriate parts of a widely attended gathering of mutual interest to a
number of parties. A gathering is widely attended if, for example, it is open to
members from throughout a given industry or profession or if those in attendance
represent a range of persons interested in a given matter. For employees subject to
a leave system, attendance at the event shall be on the employee's own time or, if
authorized by the employee's agency, on excused absence pursuant to applicable
guidelines for granting such absence, or otherwise without charge to the employee's
leave account.
(3) Determination of agency interest. The determination of agency interest required
by paragraph (g)(2) of this section shall be made orally or in writing by the agency
designee.
(i) If the sponsor is a person who has interests that may be substantially affected by
the performance or nonperformance of an employee's official duties or an association
or organization the majority of whose members have such interests, the employee's
participation may be determined to be in the interest of the agency only where there
is a written finding by the agency designee that the agency's interest in the
employee's participation in the event outweighs concern that acceptance of the gift
of free attendance may or may appear to improperly influence the employee in the
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performance of his official duties. Relevant factors that should be considered by the
agency designee include the importance of the event to the agency, the nature and
sensitivity of any pending matter affecting the interests of the sponsor of the event,
the significance of the employee's role in any such matter, the purpose of the event,
the identity of other expected participants and the monetary value of the gift of free
attendance.
(ii) A blanket determination of agency interest may be issued to cover all or any
category of invitees other than those as to whom a finding is required by paragraph
(gX3Xi) of this section. Where a finding under paragraph (g)(3)(i) of this section is
required, a written determination of agency interest, including the necessary finding,
may be issued to cover two or more employees whose duties similarly affect the
interests of the sponsor or its members.
(4) Free attendance. For purposes of paragraphs (g) (1) and (2) of this section, free
attendance may include waiver of all or part of a conference or other fee or the
provision of food, refreshments, entertainment, instruction and materials furnished
to all attendees as an integral part of the event. It does not include travel expenses,
lodgings, entertainment collateral to the event, or meals taken other than in a group
setting with all other attendees.
Note: There are statutory authorities implemented other than by part 2635 under
which an agency or an employee may be able to accept free attendance or other items
not included in the definition of free attendance, such as travel expenses.
(5) Cost provided by sponsor of event. The cost of the employee's attendance will not
be considered to be provided by the sponsor where a person other than the sponsor
designates the employee to be invited and bears the cost of the employee's attendance
through a contribution or other payment intended to facilitate that employee's
attendance. Payment of dues or a similar assessment to a sponsoring organization
does not constitute a payment intended to facilitate a particular employee's
attendance.
(6) Accompanying spouse. When others in attendance will generally be accompanied
by spouses, the agency designee may authorize an employee to accept a sponsor's
invitation to an accompanying spouse to participate in all or a portion of the event
at which the employee's free attendance is permitted under paragraph (gXl) or (2)
of this section. The authorization required by this paragraph may be provided orally
or in writing.
Example 1: An aerospace industry association that is a prohibited source sponsors a
seminar for which it charges a fee of $100. An Air Force contractor pays $500 to the
association so that the association can extend free invitations to five Air Force
officials designated by the contractor. The Air Force officials may not accept the gifts
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of free attendance. Because the contractor specified the invitees and bore the cost of
their attendance, the gift of free attendance is considered to be provided by the
company and not by the sponsoring association. Had the contractor paid $500 to the
association in order that it might invite any five Federal employees, an Air Force
official to whom the sponsoring association extended one of the five invitations could
attend if his participation were determined to be in the interest of the agency.
Example 2: An employee of the Department of the Treasury authorized to participate
in a panel discussion of economic issues as part of a one-day conference may accept
the sponsor's waiver of the conference fee. Under the separate authority of
§2635.204(a), he may accept a token of appreciation for his speech having a market
value of $20 or less.
Example 3: An Assistant U.S. Attorney is invited to attend a luncheon meeting of a
local bar association to hear a distinguished judge lecture on cross-examining expert
witnesses. Although members of the bar association are assessed a $15 fee for the
meeting, the Assistant U.S. Attorney may accept the bar association's offer to attend
for free, even without a determination of agency interest. The gift can be accepted
under the $20 de minimis exception at §2635.204(a).
Example 4: An employee of the Department of the Interior authorized to speak on the
first day of a four-day conference on endangered species may accept the sponsor's
waiver of the conference fee for the first day of the conference. If the conference is
widely attended, he may be authorized, based on a determination that his attendance
is in the agency's interest, to accept the sponsor's offer to waive the attendance fee
for the remainder of the conference.
(h) Social invitations from persons other than prohibited sources, An employee may
accept food, refreshments and entertainment, not including travel or lodgings, at a
social event attended by several persons where:
(1) The invitation is from a person who is not a prohibited source; and
(2) Nd fee is charged to any person in attendance.
Example 1: Along with several other Government officials and a number of
individuals from the private sector, the Administrator of the Environmental
Protection Agency has been invited to the premier showing of a new adventure movie
about industrial espionage. The producer is paying all costs of the showing. The
Administrator may accept the invitation since the producer is not a prohibited source
and no attendance fee is being charged to anyone who has been invited.
Example 2: An employee of the White House Press Office has been invited to a
cocktail party given by a noted Washington hostess who is not a prohibited source.
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The employee may attend even though he has only recently been introduced to the
hostess and suspects that he may have been invited because of his official position.
(i) Meals, refreshments and entertainment in foreign areas. An employee assigned to
duty in, or on official travel to, a foreign area as defined in 41 CFR 301-7.3(c) may
accept food, refreshments or entertainment in the course of a breakfast, luncheon,
dinner or other meeting or event provided:
(1) The market value in the foreign area of the food, refreshments or entertainment
provided at the meeting or event, as converted to U.S. dollars, does not exceed the per
diem rate for the foreign area specified in the U.S. Department of State's Maximum
Per Diem Allowances for Foreign Areas, Per Diem Supplement Section 925 to the
Standardized Regulations (GC,FA) available from the Superintendent of Documents,
U.S. Government Printing Office, Washington, DC 20402;
(2) There is participation in the meeting or event by non-U.S. citizens or by
representatives of foreign governments or other foreign entities;
(3) Attendance at the meeting or event is part of the employee's official duties to
obtain information, disseminate information, promote the export of U.S. goods and
services, represent the United States or otherwise further programs or operations of
the agency or the U.S. mission in the foreign area; and
(4) The gift of meals, refreshments or entertainment is from a person other than a
foreign government as defined in 5 U.S.C. 7342(a)(2).
Example 1: A number of local businessmen in a developing country are anxious for
a U.S. company to locate a manufacturing facility in their province. An official of the
Overseas Private Investment Corporation may accompany the visiting vice president
of the U.S. company to a dinner meeting hosted by the businessmen at a province
restaurant where the market value of the food and refreshments does not exceed the
per diem rate for that country.
(j) Gifts to the President or Vice President. Because of considerations relating to the
conduct of their offices, including those of protocol and etiquette, the President or the
Vice President may accept any gift on his own behalf or on behalf of any family
member, provided that such acceptance does not violate §2635.202(c) (1) or (2), 18
U.S.C. 201(b) or 201(cX3), or the Constitution of the United States.
(k) Gifts authorized by supplemental agency regulation! An employee may accept any
gift the acceptance of which is specifically authorized by a supplemental agency
regulation.
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(1) Gifts accepted under specific statutory authority. The prohibitions on acceptance
of gifts from outside sources contained in this subpart do not apply to any item,
receipt of which is specifically authorized by statute. Gifts which may be received by
an employee under the authority of specific statutes include, but are not limited to:
(1) Free attendance, course or meeting materials, transportation, lodgings, food and
refreshments or reimbursements therefor incident to training or meetings when
accepted by the employee under the authority of 5 U.S.C. 4111 from an organization
with tax-exempt status under 26 U.S.C. 501(c)(3) or from a person to whom the
prohibitions in 18 U.S.C. 209 do not apply. The employee's acceptance must be
approved by the agency in accordance with §410.701 through §410.706 of this title;
or
Note: 26 U.S.C. 501(c)(3) is authority for tax-exempt treatment of a limited class of
nonprofit organizations, including those organized and operated for charitable,
religious or educational purposes. Many nonprofit organizations are not exempt from
taxation under this section.
(2) Gifts from a foreign government or international or multinational organization,
or its representative, when accepted by the employee under the authority of the
Foreign Gifts and Decorations Act, 5 U.S.C. 7342. As a condition of acceptance, an
employee must comply with requirements imposed by the agency's regulations or
pxocedures implementing that Act.
§2635.205
Proper disposition of prohibited gifts.
(a) An employee who has received a gift that cannot be accepted under this subpart
shall, unless the gift is accepted by an agency acting under specific statutory
authority:
(1) Return any tangible item to the donor or pay the donor its market value. An
employee who cannot ascertain the actual market value of an item may estimate its
market value by reference to the retail cost of similar items of like quality. See
§2635.203(c).
Example 1: To avoid public embarrassment to the seminar sponsor, an employee of
the National Park Service did not decline a barometer worth $200 given at the
conclusion of his speech on Federal lands policy. The employee must either return the
barometer or promptly reimburse the sponsor $200.
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(2) When it is not practical to return a tangible item because it is perishable, the item
may, at the discretion of the employee's supervisor or an agency ethics official, be
given to an appropriate charity, shared within the recipient's office, or destroyed.
Example 1: With approval by the recipient's supervisor, a floral arrangement sent by
a disability claimant to a helpful employee of the Social Security Administration may
be placed in the office's reception area.
(3) For any entertainment, favor, service, benefit or other intangible, reimburse the
donor the market value. Subsequent reciprocation by the employee does not constitute
reimbursement.
Example 1: A Department of Defense employee wishes to attend a charitable event
to which he has been offered a $300 ticket by a prohibited source. Although his
attendance is not in the interest of the agency under §2635.204(g), he may attend if
he reimburses the donor the $300 face value of the ticket.
(4) Dispose of gifts from foreign governments or international organizations in
accordance with 41CFR part 101-49, and dispose of materials received in conjunction
Math official travel in accordance with 41 CFR 101-25.103.
(b) An agency may authorize disposition or return of gifts at Government expense.
Employees, may use penalty mail to forward reimbursements required or permitted
by this section.
(c) An employee who, on his own initiative, promptly complies with the requirements
of this section will not be deemed to have improperly accepted an unsolicited gift. An
employee who promptly consults his agency ethics official to determine whether
acceptance of an unsolicited gift is proper and who, upon the advice of the ethics
official, returns the gift or otherwise disposes of the gift in accordance with this
section, will be considered to have complied with the requirements of this section on
his own initiative.
Subpart* C - Gifts Between Employees
§2635.301
Overview.
This subpart contains standards that prohibit an employee from giving, donating to,
or soliciting contributions for, a gift to an official superior and from accepting a gift
from an employee receiving less pay than himself, unless the item is excluded from
the definition of a gift or falls within one of the exceptions set forth in this subpart.
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§2635.302
General standards.
(a) Gifts to superiors. Except as provided in this subpart, an employee may not:
(1) Directly or indirectly, give a gift to or make a donation toward a gift for an official
superior; or
(2) Solicit a contribution from another employee for a gift to either his own or the
other employee's official superior.
(b) Gifts from employees receiving less pay. Except as provided in this subpart, an
employee may not, directly or indirectly, accept a gift from an employee receiving less
pay than himself unless:
(1) The two employees are not in a subordinate-official superior relationship; and
(2) There is a personal relationship between the two employees that would justify the
gift.
(c) Limitation on use of exceptions. Notwithstanding any exception provided in this
subpart, an official superior shall not coerce the offering of a gift from a subordinate.
§2635.303
Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Gift has the meaning set forth in §2635.203(b). For purposes of that definition an
employee will be deemed to have paid market value for any benefit received as a
result of his participation in any carpool or other such mutual arrangement involving
another employee or other employees if he bears his fair proportion of the expense or
effort involved.
(b) Indirectly, for purposes of §2635.302(b), has the meaning set forth in §2635.203(f).
For purposes of §2635.302(a), it includes a gift:
(1) Given with the employee's knowledge and acquiescence by his parent, sibling,
spouse, child, or dependent relative; or
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(2) Given by a person other than the employee under circumstances where the
employee has promised or agreed to reimburse that person or to give that person
something of value in exchange for giving the gift.
(c) Subject to paragraph (a) of this section, market value has the meaning set forth
in §2635.203(c).
(d) Official superior means any other employee, other than the President and the Vice
President, including but not limited to an immediate supervisor, whose official
responsibilities include directing or evaluating the performance of the employee's
official duties or those of any other official superior of the employee. For purposes of
this subpart, an employee is considered to be the subordinate of any of his official
superiors.
(e) Solicit means to request contributions by personal communication or by general
announcement.
(f) Voluntary contribution means a contribution given freely, without pressure or
coercion. A contribution is not voluntary unless it is made in an amount determined
by the contributing employee, except that where an amount for a gift is included in
the cost for a luncheon, reception or similar event, an employee who freely chooses
to pay a proportionate share of the total cost in order to attend will be deemed to
have made a voluntary contribution. Except in the case of contributions for a gift
included in the cost of a luncheon, reception or similar event, a statement that an
employee may choose to contribute less or not at all shall accompany any
recommendation of an amount to be contributed for a gift to an official superior.
Example 1: A supervisory employee of the Agency for International Development has
just been reassigned from Washington, DC to Kabul, Afghanistan. As a farewell
party, 12 of her subordinates have decided to take her out to lunch at the Khyber
Repast. It is understood that each will pay for his own meal and that the cost of the
supervisor's lunch will be divided equally among the twelve. Even though the amount
they will contribute is not determined until the supervisor orders lunch, the
contribution made by those who choose to participate in the farewell lunch is
voluntary.
§2635.304
Exceptions.
The prohibitions set forth in §2635.302(a) and (b) do not apply to a gift given or
accepted under the circumstances described in paragraph (a) or (b) of this section. A
contribution or the solicitation of a contribution that would otherwise violate the
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prohibitions set forth in §2635.302(a) and (b) may only be made in accordance with
paragraph (c) of this section.
(a) General exceptions. On an occasional basis, including any occasion on which gifts
are traditionally given or exchanged, the following may be given to an official superior
or accepted from a subordinate or other employee receiving less pay:
(1) Items, other than cash, with an aggregate market value of $10 or less per
occasion;
(2) Items such as food and refreshments to be shared in the office among several
employees;
(3) Personal hospitality provided at a residence which is of a type and value
customarily provided by the employee to personal friends;
(4) Items given in connection with the receipt of personal hospitality if of a type and
value customarily given on such occasions; and
(5) Leave transferred under subpart I of part 630 of this title to an employee who is
not an immediate supervisor, unless obtained in violation of §630.912 of this title.
Example 1: Upon returning to work following a vacation at the beach, a claims
examiner with the Department of Veterans Affairs may give his supervisor, and his
supervisor may accept, a bag of saltwater taffy purchased on the boardwalk for $8.
Example 2: An employee of the Federal Deposit Insurance Corporation whose bank
examination responsibilities require frequent travel may not bring her supervisor,
and her supervisor may not accept, souvenir coffee mugs from each of the cities she
visits in the course of performing her duties, even though each of the mugs costs less
than $5. Gifts given on this basis are not occasional.
Example 3: The Secretary of Labor has invited the agency's General Counsel to a
dinner party at his home. The General Counsel may bring a $15 bottle of wine to the
dinner party and the Secretary may accept this customary hostess gift from his
subordinate, even though its cost is in excess of $10.
Example 4: For Christmas, a secretary may give his supervisor, and the supervisor
may accept, a poinsettia plant purchased for $10 or less. The secretary may also
invite his supervisor to a Christmas party in his home and the supervisor may
attend.
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(b) Special, infrequent occasions" A gilt appropriate to the occasion may be given to
an official superior or accepted from a subordinate or other employee receiving less
pay:
(1) In recognition of infrequently occurring occasions of personal significance such as
marriage, illness, or the birth or adoption of a child; or
(2) Upon occasions that terminate a subordinate-official superior relationship, such
as retirement, resignation, or transfer.
Example 1: The administrative assistant to the personnel director of the Tennessee
Valley Authority may send a $30 floral arrangement to the personnel director who
is in the hospital recovering from surgery. The personnel director may accept the gift.
Example 2: A chemist employed by the Food and Drug Administration has been
invited to the wedding of the lab director who is his official superior. He may give the
lab director and his bride, and they may accept, a place setting in the couple's
selected china pattern purchased for $70.
Example 3: Upon the occasion of the supervisor's retirement from Federal service, an
employee of the Fish and Wildlife Service may give her supervisor a book of wildlife
photographs which she purchased for $19. The retiring supervisor may accept the
book.
(c) Voluntary contributions. An employee may solicit voluntary contributions of
nominal amounts from fellow employees for an appropriate gift to an official superior
and an employee may make a voluntary contribution of a nominal amount to an
appropriate gift to an official superior:
(1) On a special, infrequent occasion as described in paragraph (b) of this section; or
(2) On an occasional basis, for items such as food and refreshments to be shared in
the office among several employees.
An employee may accept such gifts to which a subordinate or other employee
receiving less pay than himself has contributed.
Example 1: To mark the occasion of his retirement, members of the immediate staff
of the Under Secretary of the Army would like to give him a party and provide him
with a gift certificate. They may distribute an announcement of the party and include
a nominal amount for a retirement gift in "the fee for the party.
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Example 2: The General Counsel of the National Endowment for the Arts may not
collect contributions for a Christmas gift for the Chairman. Christmas occurs
annually and is not an occasion of personal significance.
Example 3: Subordinates may not take up a collection for a gift to an official superior
on the occasion of the superior's swearing in or promotion to a higher grade position
within the supervisory chain of that organization. These are not events that mark the
termination of the subordinate-official superior relationship, nor are they events of
personal significance within the meaning of §2635.304(b). However, subordinates may
take up a collection and employees may contribute $3 each to buy refreshments to be
consumed by everyone in the immediate office to mark either such occasion.
Example 4: Subordinates may each contribute a nominal amount to a fund to give a
gift to an official superior upon the occasion of that superior's transfer or promotion
to a position outside the organization.
Example 5: An Assistant Secretary at the Department of the Interior is getting
married. His secretary has decided that a microwave oven would be a nice gift from
his staff and has informed each of the Assistant Secretary's subordinates that they
should contribute $5 for the gift. Her method of collection is improper. Although she
may recommend a $5 contribution, the recommendation must be coupled with a
statement that the employee whose contribution is solicited is free to contribute less
or nothing at all.
Subpart D •• Conflicting Financial Interests
§2635.401
Overview.
This subpart contains two provisions relating to financial interests. One is a
disqualification requirement and the other is a prohibition on acquiring or continuing
to hold specific financial interests. An employee may acquire or hold any financial
interest not prohibited by §2635.403. Notwithstanding that his acquisition or holding
of a particular interest is proper, an employee is prohibited in accordance with
§2635.402 of this subpart from participating in an official capacity in any particular
matter in which, to his knowledge, he or any person whose interests are imputed to
him has a financial interest, if the particular matter will have a direct and
predictable effect on that interest.
§2635.402
Disqualifying financial interests.
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(a) Statutory prohibition. An employee is prohibited by criminal statute, 18 U.S.C.
208(a), from participating personally and substantially in an official capacity in any
particular matter in which, to his knowledge, he or any person whose interests are
imputed to him under this statute has a financial interest, if the particular matter
will have a direct and predictable effect on that interest.
Note: Standards applicable when seeking non-Federal, employment are contained in
subpart F of this part and, if followed, will ensure that an employee does not violate
18 U.S.C. 208(a) or this section when he is negotiating for or has an arrangement
concerning future employment. In all other cases where the employee's participation
would violate 18 U.S.C. 208(a), an employee shall disqualify himself from
participation in the matter in accordance with paragraph (c) of this section or obtain
a waiver, as described in paragraph (d) of this section.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Direct and predictable effect, (i) A particular matter will have a direct effect on
a financial interest if there is a dose causal link between any decision or action to be
taken in the matter and any expected effect of the matter on the financial interest.
An effect may be direct even though it does not occur immediately. A particular
matter will not have a direct effect on a financial interest, however, if the chain of
causation is attenuated or is contingent upon the occurrence of events that are
speculative or that are independent of, and unrelated to, the matter. A particular
matter that has an effect on a financial interest only as a consequence of its effects
on the general economy does not have a direct effect within the meaning of this
subpart.
(ii) A particular matter will have a predictable effect if there is a real, as opposed to
a speculative possibility that the matter will affect the financial interest. It is not
necessary, however, that the magnitude of the gain or loss be known, and the dollar
amount of the gain or loss is immaterial.
Note: If a particular matter involves a specific party or parties, generally the matter
will at most only have a direct and predictable effect, for purposes of this subpart, on
a financial interest of the employee in or with a party, such as the employee's interest
by virtue of owning stock. There may, however, be some situations in which, under
the above standards, a particular matter will have a direct and predictable effect on
an employee's financial interests in or with a nonparty. For example, if a party is a
corporation, a particular matter may also have a direct and predictable effect on an
employee's financial interests through ownership of stock in an affiliate, parent, or
subsidiary of that party. Similarly, the disposition of a protest against the award of
a contract to a particular company may also have a direct and predictable effect on
an employee's financial interest in another company listed as a subcontractor in the
proposal of one of the competing offerors.
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Example 1: An employee of the National Library of Medicine at the National
Institutes of Health has just been asked to serve on the technical evaluation panel
to review proposals for a new library computer search system. DEF Computer
Corporation, a closely held company in which he and his wife own a majority of the
stock, has submitted a proposal. Because award of the systems contract to DEF or to
any other offeror will have a direct and predictable effect on both his and his wife's
financial interests, the employee cannot participate on the technical evaluation team
unless his disqualification has been waived.
Example 2: Upon assignment to the technical evaluation panel, the employee in the
preceding example finds that DEF Computer Corporation has not submitted a
proposal. Rather, LMN Corp., with which DEF competes for private sector business,
is one of the six offerors. The employee is not disqualified from serving on the
technical evaluation panel. Any effect on the employee's financial interests as a result
of the agency's decision to award or not award the systems contract to LMN would
be at most indirect and speculative.
(2) Imputed interests. For purposes of 18 U.S.C. 208(a) and this subpart, the financial
interests of the following persons will serve to disqualify an employee to the same
extent as if they were the employee's own interests:
(i) The employee's spouse;
(ii) The employee's minor child;
(iii) The employee's general partner;
(iv) An organization or entity which the employee serves as officer, director, trustee,
general partner or employee; and
(v) A person with whom the employee is negotiating for or has an arrangement
concerning prospective employment. (Employees who are seeking other employment
should refer to and comply with the standards in subpart F of this part).
Example 1: An employee of the Department of Education serves without
compensation on the board of directors of Kinder World, Inc., a nonprofit corporation
that engages in good works. Even though her personal financial interests vfill not be
affected, the employee must disqualify herself from participating in the review of a
grant application submitted by Kinder World. Award or denial of the grant will affect
the financial interests of Kinder World and its financial interests are imputed to her
as a member of its board of directors.
Example 2: The spouse of an employee of the Food and Drug Administration has
obtained a position with a well established biomedical research company. The
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company has developed an artificial limb for which it is seeking FDA approval and
the employee would ordinarily be asked to participate in the FDA's review and
approval process. The spouse is a salaried employee of the company and has no direct
ownership interest in the company. Nor does she have an indirect ownership interest,
as would be the case, for example, if she were participating in a pension plan that
held stock in the company. Her position with the company is such that the granting
or withholding of FDA approval will not have a direct and predictable effect on her
salary or on her continued employment with the company. Since the FDA approval
process will not affect his spouse's financial interests, the employee is not disqualified
under §2635.402 from participating in that process. Nevertheless, the financial
interests of the spouse's employer may be disqualifying under the impartiality
principle, as implemented at §2635.502.
(3) Particular matter. The term particular matter encompasses only matters that
involve deliberation, decision, or action that is focused upon the interests of specific
persons, or a discrete and identifiable class of persons. Such a matter is covered by
this subpart even if it does not involve formal parties and may include governmental
action such as legislation or policy-making that is narrowly focused on the interests
of such a discrete and identifiable class of persons. The term particular matter,
however, does not extend to the consideration or adoption of broad policy options that
are directed to the interests of a large and diverse group of persons. The particular
matters covered by this subpart include a judicial or other proceeding, application,
request for a ruling or other determination, contract, claim, controversy, charge,
accusation or arrest.
Example 1: The Internal Revenue Service's amendment of its regulations to change
the manner in which depreciation is calculated is not a particular matter, nor is the
Social Security Administration's consideration of changes to its appeal procedures for
disability claimants.
Example 2: Consideration by the Interstate Commerce Commission of regulations
establishing safety standards for trucks on interstate highways involves a particular
matter.
(4) Personal and substantial. To participate personally means to participate directly.
It includes the direct and active supervision of the participation of a subordinate in
the matter. To participate substantially means that the employee's involvement is of
significance to the matter. Participation may be substantial even though it is not
determinative of the outcome of a particular matter. However, it requires more than
official responsibility, knowledge, perfunctory involvement, or involvement on an
administrative or peripheral issue. A findihg of substantiality should be based not
only on the effort devoted to a matter, but also on the importance of the effort. While
a series of peripheral involvements may be insubstantial, the single act of approving
or participating in a critical step may be substantial. Personal and substantial7
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participation may occur when, for example, an employee participates through
decision, approval, disapproval, recommendation, investigation or the rendering of
advice in a particular matter.
(c) Disqualification. Unless the employee is authorized to participate in the particular
matter by virtue of a waiver described in paragraph (d) of this section or because the
interest has been divested in accordance with paragraph (e) of this section, an
employee shall disqualify himself from participating in a particular matter in which,
to his knowledge, he or a person whose interests are imputed to him has a financial
interest, if the particular matter will have a direct and predictable effect on that
interest. Disqualification is accomplished by not participating in the particular
matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself
from participation in a particular matter to which he has been assigned should notify
the person responsible for his assignment. An employee who is responsible for his
own assignment should take whatever steps are necessary to ensure that he does not
participate in the matter from which he is disqualified. Appropriate oral or written
notification of the employee's disqualification may be made to coworkers by the
employee or a supervisor to ensure that the employee is not involved in a matter from
which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement
unless he is required by part 2634 of this chapter to file written evidence of
compliance with an ethics agreement with the Office of Government Ethics or is
asked by an agency ethics official or the person responsible for his assignment to file
a written disqualification statement. However, an employee may elect to create a
record of his actions by providing written notice to a supervisor or other appropriate
official.
Example 1: An Assistant Secretary of the Department of the Interior owns
recreational property that borders on land which is being considered for annexation
to a national park. Annexation would directly and predictably increase the value of
her vacation property and, thus, she is disqualified from participating in any way i.i
the Department's deliberations or decisions regarding the annexation. Because she
is responsible for determining which matters she will work on, she may accomplish
her disqualification merely by ensuring that she does not participate in the matter.
Because of the level of her position, however, the Assistant Secretary might be wise
to establish a record that she has acted properly by providing a written
disqualification statement to an official superior and by providing written notification
of the disqualification to subordinates to ensure that they do not raise or discuss with
her any issues related to the annexation.
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(d) Waiver of disqualification. An employee who would otherwise be disqualified by
18 U.S.C. 208(a) may be permitted to participate in a particular matter where the
otherwise disqualifying financial interest is the subject of a regulatory or individual
waiver described in this paragraph, or results from certain Indian birthrights as
described in 18 U.S.C. 208(bX4).
(1) Regulatory waivers. Under 18 U.S.C. 208(b)(2), regulatory waivers of general
applicability may be issued by the Office of Government Ethics based on its
determination that particular interests are too remote or too inconsequential to affect
the integrity of the services of the employees to whom the waivers apply. Pending
issuance of superseding regulatory waivers under this authority, agency regulatory
waivers issued under 18 U.S.C. 208(b)(2) as in effect prior to November 30, 1989
continue to apply.
(2) Individual waivers. An individual waiver enabling the employee to participate in
one or more particular matters may be issued under 18 U.S.C. 208(b)(1) if, in advance
of the employee's participation:
(i) The employee:
(A) Advises the Government official responsible for the employee's appointment (or
other Government official to whom authority to issue such a waiver for the employee
has been delegated) about the nature and circumstances of the particular matter or
matters; and
(B) Makes full disclosure to such official of the nature and extent of the disqualifying
financial interest; and
(ii) Such official determines, in writing, that the employee's financial interest in the
particular matter or matters is not so substantial as to be deemed likely to affect the
integrity of the services which the Government may expect from such employee.
(3) Federal advisory committee member waivers. An individual waiver may be issued
under 18 U.S.C. 208(b)(3) to a special Government employee serving on, or under
consideration for appointment to, ah advisory committee within the meaning of the
Federal Advisory Committee Act if the Government official responsible for the
employee's appointment (or other Government official to whom authority to issue
such a waiver for the employee has been delegated):
(i) Reviews the financial disclosure report filed by the special Government employee
pursuant to the Ethics in Government Act "of 1978; and
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(ii) Certifies in writing that the need for the individual's services outweighs the
potential for a conflict of interest created by the otherwise disqualifying financial
interest.
(4) Consultation and notification regarding waivers. When practicable, an official is
required to consult formally or informally with the Office of Government Ethics prior
to granting a waiver referred to in paragraph (d)(2) or (3) of this section. A copy of
each such waiver is to be forwarded to the Director of the Office of Government
Ethics.
(e) Divestiture of a disqualifying financial interest. Upon sale or other divestiture of
the asset or other interest that causes his disqualification from participation in a
particular matter, 18 U.S.C. 208(a) and paragraph (c) of this section will no longer
prohibit the employee's participation in the matter.
(1) Voluntary divestiture. An employee who would otherwise be disqualified from
participation in a particular matter may voluntarily sell or otherwise divest himself
of the interest that causes the disqualification.
(2) Directed divestiture. An employee may be required to sell or otherwise divest
himself of the disqualifying financial interest if his continued holding of that interest
is prohibited by statute or by agency supplemental regulation issued in accordance
with §2635.403(a), or if the agency determines in accordance with §2635.403(b) that
a substantial conflict exists between the financial interest and the employee's duties
or accomplishment of the agency's mission.
(3) Eligibility for special tax treatment. An employee who is directed to divest an
interest may be eligible to defer the tax consequences of divestiture under subpart J
of part 2634 of this chapter. An employee who divests before obtaining a certificate
of divestiture will not be eligible for this special tax treatment.
(f) Official duties that give rise to potential conflicts. Where an employee's official
duties create a substantial likelihood that the employee may be assigned to a
particular matter from which he is disqualified, the employee should advise his
supervisor or other person responsible for his assignments of that potential so that
conflicting assignments can be avoided, consistent with the agency's needs.
§2635.403
Prohibited financial interests.
An employee shall not acquire or hold any financial interest that he is prohibited
from acquiring or holding by statute, by agency regulation issued in accordance with
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paragraph (a) of this section or by reason of an agency determination of substantial
conflict under paragraph (b) of this section.
Note: There is no statute of Governmentwide applicability prohibiting employees from
holding or acquiring any financial interest. Statutory restrictions, if any, are
contained in agency statutes which, in some cases, may be implemented by agency
regulations issued independent of this part.
(a) Agency regulation prohibiting certain financial interests. An agency may, by
supplemental agency regulation, prohibit or restrict the acquisition or holding of a
financial interest or a class of financial interests by agency employees, or any
category of agency employees, and the spouses and minor children of those employees,
based on the agency's determination that the acquisition or holding of such financial
interests would cause a reasonable person to question the impartiality and objectivity
with which agency programs are administered. Where the agency restricts or
prohibits the holding of certain financial interests by its employees' spouses or minor
children, any such prohibition or restriction shall be based on a determination that
there is a direct and appropriate nexus between the prohibition or restriction as
applied to spouses and minor children and the efficiency of the service.
Note: Any prohibition on acquiring or holding a specific financial interest contained
in an agency regulation, instruction or other issuance in effect prior to the effective
date of this part shall, for employees of that agency, constitute a prohibited financial
interest for purposes of this paragraph for one year after the effective date of this
part or until issuance of an agency supplemental regulation, whichever occurs first.
(b) Agency determination of substantial conflict. An agency may prohibit or restrict
an individual employee from acquiring or holding a financial interest or a class of
financial interests based upon the agency designee's determination that the holding
of such interest or interests will:
(1) Require the employee's disqualification from matters so central or critical to the
performance of his official duties that the employee's ability to perform the duties of
his position would be materially impaired; or
(2) Adversely affect the efficient accomplishment of the agency's mission because
another employee cannot be readily assigned to perform work from which the
employee would be disqualified by reason of the financial interest.
Example 1: An Air Force employee who owns stock in a mcgor aircraft engine
manufacturer is being considered for promotion to a position that involves
responsibility for development of a new fighter airplane. If the agency determined
that engineering and other decisions about the Air Force's requirements for the
fighter would directly and predictably affect his financial interests, the employee"
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could not, by virtue of 18 U.S.C. 208(a), perform these significant duties of the
position while retaining his stock in the company. The agency can require the
employee to sell his stock as a condition of being selected for the position rather than
allowing him to disqualify himself in particular matters.
(c) Definition of financial interest. For purposes of this section:
(1) Except as provided in paragraph (cX2) of this section, the term financial interest
is limited to financial interests that are owned by the employee or by the employee's
spouse or minor children. However, the term is not limited to only those financial
interests that would be disqualifying under 18 U.S.C. 208(a) and §2635.402. The term
includes any current or contingent ownership, equity, or security interest in real or
persona] property or a business and may include an indebtedness or compensated
employment relationship. It thus includes, for example, interests in the nature of
stocks, bonds, partnership interests, fee and leasehold interests, mineral and other
property rights, deeds of trust, and liens, and extends to any right to purchase or
acquire any such interest, such as a stock option or commodity future. It does not
include a future interest created by someone other than the employee, his spouse, or
dependent child or any right as a beneficiary of an estate that has not been settled.
Example 1: A regulatory agency has concluded that ownership by its employees of
stock in entities regulated by the agency world significantly diminish public
confidence in the agency's performance of its regulatory functions and thereby
interfere with the accomplishment of its mission. In its supplemental agency
regulations, the agency may prohibit its employees from acquiring or continuing to
hold stock in regulated entities.
Example 2: An agency that insures bank deposits may, by supplemental agency
regulation, prohibit its employees who are bank examiners from obtaining loans from
banks they examine. Examination of a member bank could have no effect on an
employee's fixed obligation to repay a loan from that bank and, thus, would not affect
an employee's financial interests so as to require disqualification under §2635.402.
Nevertheless, a loan from a member bank is a discrete financial interest within the
meaning of §2635.403(c) that may, when appropriate, be prohibited by supplemental
agency regulation.
(2) The term financial interest includes service, with or without compensation, as an
officer, director, trustee, general partner or employee of any person, including a
nonprofit entity, whose financial interests are imputed to the employee under
§2635.402(b)(2)(iii) or (iv).
Example 1. The Foundation for the Preservation of Wild Horses maintains herds of
horses that graze on public and private lands. Because its costs are affected by
Federal policies regarding grazing permits, the Foundation routinely comments on
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all proposed rules governing use of Federal grasslands issued by the Bureau of Land
Management. BLM may require an employee to resign his uncompensated position
as Vice President of the Foundation as a condition of his promotion to a policy-level
position within the Bureau rather than allowing him to rely on disqualification in
particular cases.
(d) Reasonable period to divest or terminate. Whenever an agency directs divestiture
of a financial interest under paragraph (a) or (b) of this section, the employee shall
be given a reasonable period of time, considering the nature of his particular duties
and the nature and marketability of the interest, within which to comply with the
agency's direction. Except in cases of unusual hardship, as determined by the agency,
a reasonable period shall not exceed 90 days from the date divestiture is first
directed. However, as long as the employee continues to hold the financial interest,
he remains subject to any restrictions imposed by this subpart.
(e) Eligibility for special tax treatment. An employee required to sell or otherwise
divest a financial interest may be eligible to defer the tax consequences of divestiture
under subpart J of part 2634 of this chapter.
Subpart E •• Impartiality in Performing Official Duties
§2635.501
Overview.
(a) This subpart contains two provisions intended to ensure that an employee takes
appropriate steps to avoid an appearance of loss of impartiality in the performance
of his official duties. Under §2635.502, unless he receives prior authorization, an
employee should not participate in a particular matter involving specific parties
which he knows is likely to affect the financial interests of a member of his
household, or in which he knows a person with whom he has a covered relationship
is or represents a party, if he determines that, a reasonable person with knowledge
of the relevant facts would question his impartiality in the matter. An employee who
is concerned that other circumstances would raise a question regarding his
impartiality should use the process described in §2635.502 to determine whether he
should or should not participate in a particular matter.
(b) Under §2635.503, an employee who has received an extraordinary severance or
other payment from a former employer prior to entering Government service is
subject, in the absence of a waiver, to a two-year period of disqualification from
participation in particular matters in which that former employer is or represents^
party.
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Note: Questions regarding impartiality necessarily arise when an employee's official
duties impact upon the employee's own financial interests or those of certain other
persons, such as the employee's spouse or minor child. An employee is prohibited by
criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in
an official capacity in any particular matter in which, to his knowledge, he, his
spouse, general partner or minor child has a financial interest, if the particular
matter will have a direct and predictable effect on that interest. The statutory
prohibition also extends to an employee's participation in a particular matter in
which, to his knowledge, an organization in which the employee is serving as officer,
director, trustee, general partner or employee, or with whom he is negotiating or has
an arrangement concerning prospective employment has a financial interest. Where
the employee's participation in a particular matter would affect any one of these
financial interests, the standards set forth in subparts D or F of this part apply and
only a statutory waiver, as described respectively in §§2635.402(d) and 2635.605(a),
will enable the employee to participate in that matter. The authorization procedures
in §2635.502(d) may not be used to authorize an employee's participation in any such
matter. Where the employee complies with all terms of the waiver, the granting of
a statutory waiver will be deemed to constitute a determination that the interest of
the Government in the employee's participation outweighs the concern that a
reasonable person may question the integrity of agency programs and operations.
§2635.502
Personal and business relationships.
(a) Consideration of appearances by the employee. Where an employee knows that a
particular matter involving specific parties is likely to have a direct and predictable
effect on the financial interest of a member of his household, or knows that a person
with whom he has a covered relationship is or represents a party to such matter, and
where the employee determines that the circumstances would cause a reasonable
person with knowledge of the relevant facts to question his impartiality in the
matter, the employee should not participate in the matter unless he has informed the
agency designee of the appearance problem and received authorization from the
agency designee in accordance with paragraph (d) of this section.
(1) In considering whether a relationship would cause a reasonable person to question
his impartiality, an employee may seek the assistance of his supervisor, an agency
ethics official or the agency designee.
(2) An employee who is concerned that circumstances other than those specifically
described in this section would raise a question regarding his impartiality should use
the process described in this section to determine whether he should or should not
participate in a particular matter.
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(b) Definitions. For purposes of this section:
(1) An employee has a covered relationship with:
(1) A person, other than a prospective employer described in §2635.603(c), with whom
the employee has or seeks a business, contractual or other financial relationship that
involves other than a routine consumer transaction;
Note: An employee who is seeking employment within the meaning of §2635.603 shall
comply with subpart F of this part rather than with this section.
(ii) A person who is a member of the employee's household, or who is a relative with
whom the employee has a close personal relationship;
(iii) A person for whom the employee's spouse, parent or dependent child is, to the
employee's knowledge, serving or seeking to serve as an officer, director, trustee,
general partner, agent, attorney, consultant, contractor or employee;
(iv) Any person for whom the employee has, within the last year, served as officer,
director, trustee, general partner, agent, attorney, consultant, contractor or employee;
or
(v) An organization, other than a political party described in 26 U.S.C. 527(e), in
which the employee is an active participant. Participation is active if, for example,
it involves service as an official of the organization or in a capacity similar to that
of a committee or subcommittee chairperson or spokesperson, or participation in
directing the activities of the organization. In other cases, significant time devoted
to promoting specific programs of the organization, including coordination of
fundraising efforts, is an indication of active participation. Payment of dues or the
donation or solicitation of financial support does not, in itself, constitute active
participation.
Note: Nothing in this section shall be construed to suggest that an employee should
not participate in a matter because of his political, religious or moral views.
(2) Direct and predictable effect has the meaning set forth in §2635.402(bXl).
(3) Particular matter involving specific parties has the meaning set forth in
§2637.102(a)(7) of this chapter.
Example 1: An employee of the General Services Administration has made an offer
to purchase a restaurant owned by a local developer. The developer has submitted an
offer in response to a GSA solicitation for lease of office space. Under the
circumstances, she would be correct in concluding that a reasonable person would be'
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likely to question her impartiality if she were to participate in evaluating that
developer's or its competitor's lease proposal.
Example 2: An employee of the Department of Labor is providing technical assistance
in drafting occupational safety and health legislation that will affect all employers of
five or more persons. His wife is employed as an administrative assistant by a large
corporation that will incur additional costs if the proposed legislation is enacted.
Because the legislation is not a particular matter involving specific parties, the
employee may continue to work on the legislation and need not be concerned that his
wife's employment with an affected corporation would raise a question concerning his
impartiality.
Example 3: An employee of the Defense Logistics Agency who has responsibilities for
testing avionics being produced by an Air Force contractor has just learned that his
sister-in-law has accepted employment as an engineer with the contractor's parent
corporation. Where the parent corporation is a conglomerate, the employee could
reasonably conclude that, under the circumstances, a reasonable person would not be
likely to question his impartiality if he were to continue to perform his test and
evaluation responsibilities.
Example 4: An engineer has just resigned from her position as vice president of an
electronics company in order to accept employment with the Federal Aviation
Administration in a position involving procurement responsibilities. Although the
employee did not receive an extraordinary payment in connection with her
resignation and has severed all financial ties with the firm, under the circumstances
she would be correct in concluding that her former service as an officer of the
company would be likely to cause a reasonable person to question her impartiality if
she were to participate in the administration of a DOT contract for which the firm
is a first-tier subcontractor.
Example 5: An employee of the Internal Revenue Service is a member of a private
organization whose purpose is to restore a Victorian-era railroad station and she
chairs its annual fundraising drive. Under the circumstances, the employee would be
correct in concluding that her active membership in the organization would be likely
to cause a reasonable person to question her impartiality if she were to participate
in an IRS determination regarding the tax-exempt status of the organization.
(c) Determination by agency designee. Where he has information concerning a
potential appearance problem arising from the financial interest of a member of the
employee's household in a particular matter involving specific parties, or from the
role in such matter of a person with whom the employee has a covered relationship,
the agency designee may make an independent determination as to whether a
reasonable person with knowledge of the relevant facts would be likely to question
the employee's impartiality in the matter. Ordinarily, the agency designee's
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determination will be initiated ,by information provided by the employee pursuant to
paragraph (a) of this section. However, at any time, including after the" employee has
disqualified himself from participation in a matter pursuant to paragraph (e) of this
section, the agency designee may make this determination on his own initiative or
when requested by the employee's supervisor or any other person responsible for the
employee's assignment.
(1) If the agency designee determines that the employee's impartiality is likely to be
questioned, he shall then determine, in accordance with paragraph (d) of this section,
whether the employee should be authorized to participate in the matter. Where the
agency designee determines that the employee's participation should not be
authorized, the employee will be disqualified from participation in the matter in
accordance with paragraph (e) of this section.
(2) If the agency designee determines that the employee's impartiality is not likely
to be questioned, he may advise the employee, including an employee who has
reached a contrary conclusion under paragraph (a) of this section, that the employee's
participation in the matter would be proper.
(d) Authorization by agency designee. Where an employee's participation in a
particular matter involving specific parties would not violate 18 U.S.C. 208(a), but
would raise a question in the mind of a reasonable person about his impartiality, the
agency designee may authorize the employee to participate in the matter based on
a determination, made in light of all relevant circumstances, that the interest of the
Government in the employee's participation outweighs the concern that a reasonable
person may question the integrity of the agency's programs and operations. Factors
which may be taken into consideration include:
(1) The nature of the relationship involved;
(2) The effect that resolution of the matter would have upon the financial interests
of the person involved in the relationship;
(3) The nature and importance of the employee's role in the matter, including the
extent te which the employee is called upon to exercise discretion in the matter;
(4) The sensitivity of the matter;
(5) The difficulty of reassigning the matter to another employee; and
(6) Adjustments that may be made in the employee's duties that would reduce or
eliminate the likelihood that a reasonable person would question the employee's
impartiality.
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Authorization by the agency designee shall be documented in writing at the agency
designee's discretion or when requested by the employee. An employee who has been
authorized to participate in a particular matter involving specific parties may not
thereafter disqualify himself from participation in the matter on the basis of an
appearance problem involving the same circumstances that have been considered by
the agency designee.
Example 1: The Deputy Director of Personnel for the Department of the Treasury and
an attorney with the Department's Office of General Counsel are general partners in
a real estate partnership. The Deputy Director advises his supervisor, the Director
of Personnel, of the relationship upon being assigned to a selection panel for a
position for which his partner has applied. If selected, the partner would receive a
substantial increase in salary. The agency designee cannot authorize the Deputy
Director to participate on the panel under the authority of this section since the
Deputy Director is prohibited by criminal statute, 18 U.S.C. 208(a), from participating
in a particular matter affecting the financial interest of a person who is his general
partner. See §2635.402.
Example 2: A new employee of the Securities and Exchange Commission is assigned
to an investigation of insider trading by the brokerage house where she had recently
been employed. Because of the sensitivity of the investigation, the agency designee
may be unable to conclude that the Government's interest in the employee's
participation in the investigation outweighs the concern that a reasonable person may
question the integrity of the investigation, even though the employee has severed all
financial ties with the company. Based on consideration of all relevant circumstances,
the agency designee might determine, however, that it is in the interest of the
Government for the employee to pass on a routine filing by the particular brokerage
house.
Example 3: An Internal Revenue Service employee involved in a long and complex tax
audit is advised by her son that he has just accepted an entry-level management
position with a corporation whose taxes are the subject of the audit. Because the
audit is essentially complete and because the employee is the only one with an
intimate knowledge of the case^ the agency designee might determine, after
considering all relevant circumstances, that it is in the Government's interest for the
employee to complete the audit, which is subject to additional levels of review.
(e) Disqualification. Unless the employee is authorized to participate in the matter
under paragraph (d) of this section, an employee shall not participate in a particular
matter involving specific parties when he or the agency designee has concluded, in
accordance with paragraph (a) or (c) of this section, that the financial interest of a
member of the employee's household, or the role of a person with whom he has a
covered relationship, is likely to raise a question in the mind of a reasonable person
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about his impartiality. Disqualification is accomplished by not participating in the
matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself
from participation in a particular matter involving specific parties to which he has
been assigned should notify the person responsible for his assignment. An employee
who is responsible for his own assignment should take whatever steps are necessary
to ensure that he does not participate in the matter from which he is disqualified.
Appropriate oral or written notification of the employee's disqualification may be
made to coworkers by the employee or a supervisor to ensure that the employee is not
involved in a particular matter involving specific parties from which he is
disqualified.
(2) Documentation. An employee need not file a written disqualification statement
unless he is required by part 2634 of this chapter to file written evidence of
compliance with an ethics agreement with the Office of Government Ethics or is
specifically asked by an agency ethics offiticd or the person responsible for his
assignment to file a written disqualification statement. However, an employee may
elect to create a record of his actions by providing written notice to a supervisor or
other appropriate official.
(f) Relevant considerations. An employee's reputation for honesty and integrity is not
a relevant consideration for purposes of any determination required by this section.
§2635.503
Extraordinary payments from former employers.
(a) Disqualification requirement. Except as provided in paragraph (c) of this section,
an employee shall be disqualified for two years from participating in any particular
matter in which a former employer is a party or represents a party if he received an
extraordinary payment from that person prior to entering Government service. The
two-year period of disqualification begins to run on the date that the extraordinary
payment is received.
Example 1: Following his confirmation hearings and one month before his scheduled
swearing in, a nominee to the position of Assistant Secretary of a department
received an extraordinary payment from his employer. For one year and 11 months
after his swearing in, the Assistant Secretary may not participate in any particular
matter to which his former employer is a party.
Example 2: An employee received an extraordinary payment from her former
employer, a coal mine operator, prior to entering on duty with the Department of the
Interior. For two years thereafter, she may not participate in a determination
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regarding her former employer's obligation to reclaim a particular mining site,
because her former employer is a party to the matter. However, she may help to draft
reclamation legislation affecting all coal mining operations because this legislation
does not involve any parties.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Extraordinary payment means any item, including cash or an investment interest,
with a value in excess of $10,000, which is paid:
(1) On the basis of a determination made after it became known to the former
employer that the individual was being considered for or had accepted a Government
position; and
(ii) Other than pursuant to the former employer's established compensation,
partnership, or benefits program. A compensation, partnership, or benefits program
will be deemed an established program if it is contained in bylaws, a contract or other
written form, or if there is a history of similar payments made to others not entering
into Federal service.
Example 1: The vice president of a small corporation is nominated to be an
ambassador. In recognition of his service to the corporation, the board of directors
votes to pay him $50,000 upon his confirmation in addition to the regular severance
payment provided for by the corporate bylaws. The regular severance payment is not
an extraordinary payment. The gratuitous payment of $50,000 is an extraordinary
payment, since the corporation had not made similar payments to other departing
officers.
(2) Former employer includes any person which the employee served as an officer,
director, trustee, general partner, agent, attorney, consultant, contractor or employee.
(c) Waiver of disqualification. The disqualification requirement of this section may be
waived based on a finding that the amount of the payment was not so substantial as
to cause a reasonable person to question the employee's ability to act impartially in
a matter in which the former employer is or represents a party. The waiver shall be
in writing and may be given only by the head of the agency or, where the recipient
of the payment is the head of the agency, by the President or his designee. Waiver
authority may be delegated by agency heads to any person who has been delegated
authority to issue individual waivers under 18 U.S.C. 208(b) for the employee who is
the recipient of the extraordinary payment.
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Subpart F •• Seeking Other Employment
§2635.601
Overview.
This subpart contains a disqualification requirement that applies to employees when
seeking employment with persons who otherwise would be affected by the
performance or nonperformance of the employees' official duties. Specifically, it
addresses the requirement of 18 U.S.C. 208(a) that an employee disqualify himself
from participation in any particular matter that will have a direct and predictable
effect on the financial interests of a person "with whom he is negotiating or has any
arrangement concerning prospective employment." Beyond this statutory
requirement, it also addresses the issues of lack of impartiality that require
disqualification from particular matters affecting the financial interests of a
prospective employer when an employee's actions in seeking employment fall short
of actual employment negotiations.
§2635.602
Applicability and related considerations.
To ensure that he does not violate 18 U.S.C. 208(a) or the principles of ethical
conduct contained in §2635.101(b), an employee who is seeking employment or who
has an arrangement concerning prospective employment shall comply with the
applicable disqualification requirements of §§2635.604 and 2635.606 if the employee's
official duties would affect the financial interests of a prospective employer or of a
person with whom he has an arrangement concerning prospective employment.
Compliance with this subpart also will ensure that the employee does not violate
subpart D or E of this part.
Note: An employee who is seeking employment with a person whose financial
interests are not affected by the performance or nonperformance of his official duties
has no obligation under this subpart. An employee may, however, be subject to other
statutes which impose restrictions on employment contacts or discussions, such as 41
U.S.C. 423(b)(1), applicable to procurement officials, and 10 U.S.C. 2397a, applicable
to certain employees of the Department of Defense.
(a) Related employment restrictions^ 1) Outside employment while a Federal
employee. An employee who is contemplating outside employment to be undertaken
concurrently with his Federal employment'must abide by any limitations applicable
to his outside activities under subparts G and H of this part. He must also comply^
with any disqualification requirement that may be applicable under subpart D or E-
of this part as a result of his outside employment activities.
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(2) Post-employment restrictions. An employee who is contemplating employment to
be undertaken following the termination of his Federal employment should consult
an agency ethics official to obtain advice regarding any post-employment restrictions
that may be applicable. Regulations implementing the Governmentwide
post-employment statute, 18 U.S.C. 207, are contained in parts 2637 and 2641 of this
chapter. Employees are cautioned that they may be subject to additional statutory
restrictions on their post-employment activities, such as 41 U.S.C. 423(0 applicable
to procurement officials, 10 U.S.C. 2397b applicable to certain Department of Defense
personnel and special statutes applicable to certain retired officers.
(b) Interview trips and entertainment. Where a prospective employer' who is a
prohibited source as defined in §2635.203(d) offers to reimburse an employee's travel
expenses, or provide other reasonable amenities incident to employment discussions,
the employee may accept such amenities in accordance with §2635.204(e)(3).
§2635.603
Definitions.
For purposes of this subpart:
(a) Employment means any form of non-Federal employment or business relationship
involving the provision of personal services by the employee, whether to be
undertaken at the same time as or subsequent to Federal employment. It includes
but is not limited to personal services as an officer, director, employee, agent,
attorney, consultant, contractor, general partner or trustee.
Example 1: An employee of the Bureau of Indian Affairs who has announced her
intention to retire is approached by tribal representatives concerning a possible
consulting contract with the tribe. The independent contractual relationship the tribe
wishes to negotiate is employment for purposes of this subpart.
Example 2: An employee of the Department of Health and Human Services is invited
to a meeting with officials of a nonprofit corporation to discuss the possibility of his
serving as a member of the corporation's board of directors. Service, with or without
compensation, as a member of the board of directors constitutes employment for
purposes of this subpart.
(b) An employee is seeking employment once he has begun seeking employment
within the meaning of paragraph (b)(17 of this section and until he is no longer
seeking employment within the meaning of paragraph (b)(2) of this section.
(1) An employee has begun seeking employment if he has directly or indirectly:
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(1) Engaged in negotiations for employment with any person. For these purposes, as
for 18 U.S.C. 208(a), the term negotiations means discussion or communication with
another person, or such person's agent or intermediary, mutually conducted with a
view toward reaching an agreement regarding possible employment with that person.
The term is not limited to discussions of specific terms and conditions of employment
in a specific position;
(ii) Made an unsolicited communication to any person, or such person's agent or
intermediary, regarding possible employment with that person. However, the
employee has not begun seeking employment if that communication was:
(A) For the sole purpose of requesting a job application; or
(B) For the purpose of submitting a resume or other employment proposal to a person
affected by the performance or nonperformance of the employee's duties only as part
of an industry or other discrete class. The employee will be considered to have begun
seeking employment upon receipt of any response indicating an interest in
employment discussions; or
(iii) Made a response other than rejection to an unsolicited communication from any
person, or such person's agent or intermediary, regarding possible employment with
that person.
(2) An employee is no longer seeking employment when:
(i) The employee or the prospective employer rejects the possibility of employment
and all discussions of possible employment have terminated; or
(ii) Two months have transpired after the employee's dispatch of an unsolicited
resume or employment proposal, provided the employee has received no indication of
interest in employment discussions from the prospective employer.
(3) For purposes of this definition, a response that defers discussions until the
foreseeable fixture does not constitute rejection of an unsolicited employment overture,
proposal, or resume nor rejection of a prospective employment possibility.
Example 1: An employee of the Health Care Financing Administration is
complimented on her work by an official of a State Health Department who asks her
to call if she is ever interested in leaving Federal service. The employee explains to
the State official that she is very happy with her job at HCFA and is not interested
in another job. She thanks him for his compliment regarding her work and adds that
shell remember his interest if she ever decides to leave the Government. The
employee has rejected the unsolicited employment overture and has not begun
seeking employment.
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Example 2: The employee in the preceding example responds by stating that she
cannot discuss future employment while she is working on a project affecting the
State's health care funding but would like to discuss employment with the State
when the project is completed. Because the employee has merely deferred
employment discussions until the foreseeable future, she has begun seeking
employment with the State Health Department.
Example 3: An employee of the Defense Contract Audit Agency is auditing the
overhead accounts of an Army contractor. While at the contractor's headquarters, the
head of the contractor's accounting division tells the employee that his division is
thinking about hiring another accountant and asks whether the employee might be
interested in leaving DCAA. The DCAA employee says he is interested in knowing
what kind of work would be involved. They discuss the duties of the position the
accounting division would like to fill and the DCAA employee's qualifications for the
position. They do not discuss salary. The head of the division explains that he has not
yet received authorization to fill the particular position and will get back to the
employee when he obtains the necessary approval for additional staffing. The
employee and the contractor's official have engaged in negotiations regarding possible
employment. The employee has begun seeking employment with the Army contractor.
Example 4: An employee of the Occupational Safety and Health Administration
helping to draft safety standards applicable to the textile industry has mailed his
resume to 25 textile manufacturers. He has not begun seeking employment with any
of the twenty-five. If he receives a response from one of the resume recipients
indicating an interest in employment discussions, the employee will have begun
seeking employment with the respondent at that time.
Example 5: A special Government employee of the Federal Deposit Insurance
Corporation is serving on an advisory committee formed for the purpose of reviewing
rules applicable to all member banks. She mails an unsolicited letter to a member
bank offering her services as a contract consultant. She has not begun seeking
employment with the bank until she receives some response indicating an interest
in discussing her employment proposal. A letter merely acknowledging receipt of the
proposal is not an indication of interest in employment discussions.
Example 6: A geologist employed by the U.S. Geological Survey has been working as
a member of a team preparing the Government's case in an action brought by the
Government against six oil companies. The geologist sends her resume to an oil
company that is a named defendant in the action. The geologist has begun seeking
employment with that oil company and will be seeking employment for two months
from the date the resume was mailed. However, if she withdraws her application or
is notified within the two-month period that her resume has been rejected, she will
no longer be seeking employment with the oil company as of the date she makes such
withdrawal or receives such notification.
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(c) Prospective employer means any person" with whom the employee is seeking
employment. Where contacts that constitute seeking employment are made by or with
an agent or other intermediary, the term prospective employer includes:
(1) A person who uses that agent or other intermediary for the purpose of seeking to
establish an employment relationship with the employee if the agent identifies the
prospective employer to the employee; and
(2) A person contacted by the employee's agent or other intermediary for the purpose
of seeking to establish an employment relationship if the agent identifies the
prospective employer to the employee.
Example 1: An employee of the Federal Aviation Administration has overall
responsibility for airport safety inspections in a three-state area. She has retained an
employment search firm to help her find another job. The search firm has just
reported to the FAA employee that it has given her resume to and had promising
discussions with two airport authorities within her jurisdiction. Even though the
employee has not personally had employment discussions with either, each airport
authority is her prospective employer. She began seeking employment with each upon
learning its identity and that it has been given her resume.
(d) Direct and predictable effect and particular matter have the respective meanings
set forth in §2635.402(b) (1) and (3).
§2635.604
Disqualification while seeking employment.
(a) Obligation to disqualify. Unless the employee's participation is authorized in
accordance with §2635.605, the employee shall not participate in a particular matter
that, to his knowledge, has a direct and predictable effect on the financial interests
of a prospective employer with whom he is seeking employment within the meaning
of §2635 603(b). Disqualification is accomplished by not participating in the particular
matter.
(b) Notification. An employee who becomes aware of the need to disqualify himself
from participation in a particular matter to which he has been assigned should notify
the person responsible for his assignment. An employee who is responsible for his
own assignment should take whatever steps are necessary to ensure that he does not
participate in the matter from which he is disqualified. Appropriate oral or written
notification of the employee's disqualification may be made to coworkers by the
employee or a supervisor to ensure that the employee is not involved in a matter from
which he is disqualified.
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(c) Documentation. An employee need not file a written disqualification statement
unless he is required by part 2634 of this chapter to file written evidence of
compliance with an ethics agreement with the Office of Government Ethics or is
specifically asked by an agency ethics official or the person responsible for his
assignment to file a written disqualification statement. However, an employee may
elect to create a record of his actions by providing written notice to a supervisor or
other appropriate official.
Example 1: An employee of the Department of Veterans Affairs is participating in the
audit of a contract for laboratory support services. Before sending his resume to a lab
which is a subcontractor under the VA contract, the employee should disqualify
himself from participation in the audit. Since he cannot withdraw from participation
in the contract audit without the approval of his supervisor, he should disclose his
intentions to his supervisor in order that appropriate adjustments in his work
assignments can be made.
Example 2: An employee of the Food and Drug Administration is contacted in writing
by a pharmaceutical company concerning possible employment with the company. The
employee is involved in testing a drug for which the company is seeking FDA
approval. Before making a response that is not a rejection, the employee should
disqualify himself from further participation in the testing. Where he has authority
to ask his colleague to assume his testing responsibilities, he may accomplish his
disqualification by transferring the work to that coworker. However, to ensure that
his colleague and others with whom he had been working on the recommendations
do not seek his advice regarding testing or otherwise involve him in the matter, it
may be necessary for him to advise those individuals of his disqualification.
Example 3: The General Counsel of a regulatory agency wishes to engage in
discussions regarding possible employment as corporate counsel of a regulated entity.
Matters directly affecting the financial interests of the regulated entity are pending
within the Office of General Counsel, but the General Counsel will not be called upon
to act in any such matter because signature authority for that particular class of
matters has been delegated to an Assistant General Counsel. Because the General
Counsel is responsible for assigning work within the Office of General Counsel, he
can in fact accomplish his disqualification by simply avoiding any involvement in
matters affecting the regulated entity. However, because it is likely to be assumed
by others that the General Counsel is involved in all matters within the cognizance
of the Office of General Counsel, he would be wise to file a written disqualification
statement with the Commissioners of the regulatory agency and provide his
subordinates with written notification of his disqualification, or he may be specifically
asked by an agency ethics official or the Commissioners to file a written
disqualification statement.
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Example 4: A scientist is employed by the National Science Foundation as a special
Government employee to serve on a panel that reviews grant applications to fund
research relating to deterioration of the ozone layer. She is discussing possible
employment as a member of the faculty of a university that several years earlier
received an NSF grant to study the effect of fluorocarbons, but has no grant
application pending. As long as the university does not submit a new application for
the panel's review, the employee would not have to take any action to effect
disqualification.
(d) Agency determination of substantial conflict. Where the agency determines that
the employee's action in seeking employment with a particular person will require his
disqualification from matters so central or critical to the performance of his official
duties that the employee's ability to perform the duties of his position would be
materially impaired, the agency may allow the employee to take annual leave or leave
without pay while seeking employment, or may take other appropriate administrative
action.
§2636.605
Waiver or authorization permitting participation while seeking employment
(a) Waiver. Where, as defined in §2635.603(b)(l)(i), an employee is engaged in
discussions that constitute employment negotiations for purposes of 18 U.S.C. 208(a),
the employee may participate in a particular matter that has a direct and predictable
effect on the financial interests of a prospective employer only after receiving a
written waiver issued under the authority of 18 U.S.C. 208(bXl) or (bX3). These
waivers are described in §2635.402(d).
Example 1: An employee of the Department of Agriculture has had two telephone
conversations with an orange grower regarding possible employment. They have
discussed the employee's qualifications for a particular position with the grower, but
have not yet discussed salary or other specific terms of employment. The employee
is negotiating for employment within the meaning of 18 U.S.C. 208(a) and
§2635.603(b)(l)(i). In the absence of a written waiver issued under 18 U.S.C.
208(b)(1); she may not take official action on a complaint filed by a competitor
alleging that the grower has shipped oranges in violation of applicable quotas.
(b) Authorization by agency designee. Where an employee is seeking employment
within the meaning of §2635.603(b)(l) (ii) or (iii), a reasonable person would be likely
to question his impartiality if he were to participate in a particular matter that has
a direct and predictable effect on the financial interests of any such prospective
employer. The employee may participate in such matters only where the agency
designee has authorized his participation in accordance with the standards set forth
in §2635.502(d).
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Example 1: Within the past month, an employee of the Education Department mailed
her resume to a university. She is thus seeking employment with the university
within the meaning of §2635.603(b)(l)(ii) even though she has received no reply. In
the absence of specific authorization by the agency designee in accordance with
§2635.502(d), she may not participate in an assignment to review a grant application
submitted by the university.
§2635.606
Disqualification based on an arrangement concerning prospective
employment or otherwise after negotiations.
(a) Employment or arrangement concerning employment. An employee shall be
disqualified from taking official action in a particular matter that has a direct and
predictable effect on the financial interests of the person by whom he is employed or
with whom he has an arrangement concerning future employment, unless authorized
to participate in the matter by a written waiver issued under the authority of 18
U.S.C. 208 (b)(1) or (b)(3). These waivers are described in §2635.402(d).
Example 1: A military officer has accepted a job with a defense contractor to begin
in six months, after his retirement from military service. During the period that he
remains with the Government, the officer may not participate in the administration
of a contract with that particular defense contractor unless he has received a written
waiver under the authority of 18 U.S.C. 208(bXl).
Example 2: An accountant has just been offered a job with the Comptroller of the
Currency which involves a two-year limited appointment. Her private employer, a
large corporation, believes the job will enhance her skills and has agreed to give her
a two-year unpaid leave of absence at the end of which she has agreed to return to
work for the corporation. During the two-year period she is to be a COC employee,
the accountant will have an arrangement concerning future employment with the
corporation that will require her disqualification from participation in any particular
matter that will have a direct and predictable effect on the corporation's financial
interests.
(b) Offer rejected or not made. The agency designee for the purpose of §2635.502(c)
may, in an appropriate case, determine that an employee not covered by the
preceding paragraph who has sought but is no longer seeking employment
nevertheless shall be subject to a period of disqualification upon the conclusion of
employment negotiations. Any such determination shall be based on a consideration
of all the relevant factors, including those listed in §2635.502(d), and a determination
that the concern that a reasonable person may question the integrity of the agency's
decisionmaking process outweighs the Government's interest in the employee's
participation in the particular matter.
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Example 1: An employee of the Securities and Exchange Commission was relieved of
responsibility for an investigation of a broker-dealer while seeking employment with
the law firm representing the broker-dealer in that matter. The firm did not offer her
the partnership position she sought. Even though she is no longer seeking
employment with the firm, she may continue to be disqualified from participating in
the investigation based on a determination by the agency designee that the concern
that a reasonable person might question whether, in view of the history of the
employment negotiations, she could act impartially in the matter outweighs the
Government's interest in her participation.
Subpart G •• Misuse of Position
§2635.701
Overview.
This subpart contains provisions relating to the proper use of official time and
authority, and of information and resources to which an employee has access because
of his Federal employment. This subpart sets forth standards relating to:
(a) Use of public office for private gain;
(b) Use of nonpublic information;
(c) Use of Government property; and
(d) Use of official time.
§2635.702
Use of public office for private gain.
An employee shall not use his public office for his own private gain, for the
endorsement of any product, service or enterprise, or for the private gain of friends,
relatives, or persons with whom the employee is affiliated in a nongovernmental
capacity, including nonprofit organizations of which the employee is an officer or
member, and persons with whom the employee has or seeks employment or business
relations. The specific prohibitions set forth in paragraphs (a) through (d) of this
section apply this general standard, but are not intended to be exclusive or to limit
the application of this section.
(a) Inducement or coercion of benefits. An employee shall not use or permit the use
of his Government position or title or any authority associated with his public office
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in a manner that is intended to coerce or induce another person, including a
subordinate, to provide any benefit, financial or otherwise, to himself or to friends,
relatives, or persons with whom the employee is affiliated in a nongovernmental
capacity.
Example 1: Offering to pursue a relative's consumer complaint over a household
appliance, an employee of the Securities and Exchange Commission called the general
counsel of the manufacturer and, in the course of discussing the problem, stated that
he worked at the SEC and was responsible for reviewing the company's filings. The
employee violated the prohibition against use of public office for private gain by
invoking his official authority in an attempt to influence action to benefit his relative.
Example 2: An employee of the Department of Commerce was asked by a friend to
determine why his firm's export license had not yet been granted by another office
within the Department of Commerce. At a department-level staff meeting, the
employee raised as a matter for official inquiry the delay in approval of the particular
license and asked that the particular license be expedited. The official used her public
office in an attempt to benefit her friend and, in acting as her friend's agent for the
purpose of pursuing the export license with the Department of Commerce, may also
have violated 18 U.S.C. 205.
(b) Appearance of governmental sanction. Except as otherwise provided in thi.i part,
an employee shall not use or permit the use of his Government position or title or any
authority associated with his public office in a manner that could reasonably be
construed to imply that his agency or the Government sanctions or endorses his
personal activities or those of another. When teaching, speaking, or writing in a
personal capacity, he may refer to his official title or position only as permitted by
§2635.807(b). He may sign a letter of recommendation using his official title only in
response to a request for an employment recommendation or character reference
based upon personal knowledge of the ability or character of an individual with whom
he has dealt in the course of Federal employment or whom he is recommending for
Federal employment.
Example 1: An employee of the Department of the Treasury who is asked to provide
a letter of recommendation for a former subordinate on his staff may provide the
recommendation using official stationery and may sign the letter using his official
title. If, however, the request is for the recommendation of a personal friend with
whom he has not dealt in the Government, the employee should not use official
stationery or sign the letter of recommendation using his official title, unless the
recommendation is for Federal employment. In writing the letter of recommendation
for his personal friend, it may be appropriate for the employee to refer to his official
position in the body of the letter.
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(c) Endorsements. An employee shall not use or permit the use of his Government
position or title or any authority associated with his public office to endorse any
product, service or enterprise except:
(1) In furtherance of statutory authority to promote products, services or enterprises;
or
(2) As a result of documentation of compliance with agency requirements or standards
or as the result of recognition for achievement given under an agency program of
recognition for accomplishment in support of the agency's mission.
Example 1: A Commissioner of the Consumer Product Safety Commission may not
appear in a television commercial in which she endorses an electrical appliance
produced by her former employer, stating that it has been found by the CPSC to be
safe for residential use.
Example 2: A Foreign Commercial Service officer from the Department of Commerce
is asked by a United States telecommunications company to meet with
representatives of the Government of Spain, which is in the process of procuring
telecommunications services and equipment The company is bidding against five
European companies and the statutory mission of the Department of Commerce
includes assisting the export activities of U.S. companies. As part of his official
duties, the Foreign Commercial Service officer may meet with Spanish officials and
explain the advantages of procurement from the United States company.
Example 3: The Administrator of the Environmental Protection Agency may sign a
letter to an oil company indicating that its refining operations are in compliance with
Federal air quality standards even though he knows that the company has routinely
displayed letters of this type in television commercials portraying it as a "trustee of
the environment for future generations."
Example 4: An Assistant Attorney General may not use his official title or refer to his
Government position in a book jacket endorsement of a novel about organized crime
written by an author whose work he admires. Nor may he do so in a book review
published in a newspaper.
(d) Performance of official duties affecting a private interest. To ensure that the
performance of his official duties does not give rise to an appearance of use of public
office for private gain or of giving preferential treatment, an employee whose duties
would affect the financial interests of a friend, relative or person with whom he is
affiliated in a nongovernmental capacity shall comply with any applicable
requirements of §2635.502.
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(e) Use of terms of address and ranks. Nothing in this section prohibits an employee
who is ordinarily addressed using a general term of address, such as "The
Honorable", or a rank, such as a military or ambassadorial rank, from using that
term of address or rank in connection with a personal activity.
§2635.703
Use of nonpublic information.
(a) Prohibition. An employee shall not engage in a financial transaction using
nonpublic information, nor allow the improper use of nonpublic information to further
his own private interest or that of another, whether through advice or
recommendation, or by knowing unauthorized disclosure.
(b) Definition of nonpublic information. For purposes of this section, nonpublic
information is information that the employee gains by reason of Federal employment
and that he knows or reasonably should know has not been made available to the
general public. It includes information that he knows or reasonably should know:
(1) Is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected
from disclosure by statute, Executive order or regulation;
(2) Is designated as confidential by an agency; or
(3) Has not actually been disseminated to the general public and is not authorized to
be made available to the public on request.
Example 1: A Navy employee learns in the course of her duties that a small
corporation will be awarded a Navy contract for electrical test equipment. She may
not take any action to purchase stock in the corporation or its suppliers and she may
not advise friends or relatives to do so until after public announcement of the award.
Such actions could violate Federal securities statutes as well as this section.
Example 2: A General Services Administration employee involved in evaluating
proposals for a construction contract cannot disclose the terms of a competing
proposal to a friend employed by a company bidding on the work. Prior to award of
the contract, bid or proposal information is nonpublic information specifically
protected by 41 U.S.C. 423.
Example 3: An employee is a member of a source selection team assigned to review
the proposals submitted by several companies in response to an Army solicitation for
spare parts. As a member of the evaluation team, the employee has access to
proprietary information regarding the production methods of Alpha Corporation, one
of the competitors. He may not use that information to assist Beta Company in
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drafting a proposal to compete for a Navy spare parts contract. The Federal
Acquisition Regulation in 48 CFR parts 3, 14 and 15 restricts the release of
information related to procurements and other contractor information that must be
protected under 18 U.S.C. 1905 and 41 U.S.C. 423.
Example 4: An employee of the Nuclear Regulatory Commission inadvertently
includes a document that is exempt from disclosure with a group of documents
released in response to a Freedom of Information Act request. Regardless of whether
the document is used improperly, the employee's disclosure does not violate this
section because it was not a knowing unauthorized disclosure made for the purpose
of furthering a private interest.
Example 5: An employee of the Army Corps of Engineers is actively involved in the
activities of an organization whose goals relate to protection of the environment. The
employee may not, other than as permitted by agency procedures, give the
organization or a newspaper reporter nonpublic information about long-range plans
to build a particular dam.
§2635.704
Use of Government property.
(a) Standard. An employee has a duty to protect and conserve Government property
and shall not use such property, or allow its use, for other than authorized purposes.
(b) Definitions. For purposes of this section:
(1) Government property includes any form of real or personal property in which the
Government has an ownership, leasehold, or other property interest as well as any
right or other intangible interest that is purchased with Government funds, including
the services of contractor personnel. The term includes office supplies, telephone and
other telecommunications equipment and services, the Government mails, automated
data processing capabilities, printing and reproduction facilities, Government records,
and Government vehicles.
(2) Authorized purposes are those purposes for which Government property is made
available to members of the public or those purposes authorized in accordance with
law or regulation.
Example 1: Under regulations of the General Services Administration at 41 CFR
201-21.601, an employee may make a personal long distance call charged to her
personal calling card.
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Example 2: An employee of the Commodity Futures Trading Commission whose office
computer gives him access to a commercial service providing information for investors
may not use that service for personal investment research.
Example 3: In accordance with chapter 252 of the Federal Personnel Manual, an
attorney employed by the Department of Justice may be permitted to use her office
word processor and agency photocopy equipment to prepare a paper to be presented
at a conference sponsored by a professional association of which she is a member.
§2635.705
Use of official time.
(a) Use of an employee's own time. Unless authorized in accordance with law or
regulations to use such time for other purposes, an employee shall use official time
in an honest effort to perform official duties. An employee not under a leave system,
including a Presidential appointee exempted under 5 U.S.C. 6301(2), has an
obligation to expend an honest effort and a reasonable proportion of his time in the
performance of official duties.
Example 1: An employee of the Social Security Administration may use official time
to engage in certain representational activities on behalf of the employee union of
which she is a member. Under 5 U.S.C. 7131, this is a proper use of her official time
even though it does not involve performance of her assigned duties as a disability
claims examiner.
Example 2: A pharmacist employed by the Department of Veterans Affairs has been
granted excused absence to participate as a speaker in a conference on drug abuse
sponsored by the professional association to which he belongs. Although excused
absence granted by an agency in accordance with guidance in chapter 630 of the
Federal Personnel Manual allows an employee to be absent from his official duties
without charge to his annual leave account, such absence is not on official time.
(b) Use "of a subordinate's time. An employee shall not encourage, direct, coerce, or
request a subordinate to use official time to perform activities other than those
required in the performance of official duties or authorized in accordance with law or
regulation.
Example 1: An employee of the Department of Housing and Urban Development may
not ask his secretary to type his personal correspondence during duty hours. Further,
directing or coercing a subordinate to perform such activities during nonduty hours
constitutes an improper use of public office for private gain in violation of
§2635.702(a). Where the arrangement is entirely voluntary and appropriate
compensation is paid, the secretary may type the correspondence at home on her own
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time. Where the compensation is not adequate, however, the arrangement would
involve a gift to the superior in violation of the standards in subpart C of this part.
Subpart H •• Outside Activities
§2635.801
Overview.
(a) This subpart contains provisions relating to outside employment, outside activities
and personal financial obligations of employees that are in addition to the principles
and standards set forth in other subparts of this part. Several of these provisions
apply to uncompensated as well as to compensated outside activities.
(b) An employee who wishes to engage in outside employment or other outside
activities must comply with all relevant provisions of this subpart, including, when
applicable:
(1) The prohibition on outside employment or any other outside activity that conflicts
with the employee's official duties;
(2) Any agency-specific requirement for prior approval of outside employment or
activities;
(3) The limitations on receipt of outside earned income by certain Presidential
appointees and other noncareer employees;
(4) The limitations on paid and unpaid service as an expert witness;
(5) The limitations on participation in professional organizations;
(6) The limitations on paid and unpaid teaching, speaking, and writing; and
(7) The limitations on fundraising activities.
(c) Outside employment and other outside activities of an employee must also comply
with applicable provisions set forth in other subparts of this part and in supplemental
agency regulations. These include the principle that an employee shall endeavor to
avoid actions creating an appearance of violating any of the ethical standards in this
part and the prohibition against use of official position for an employee's private gain
or for the private gain of any person with whom he has employment or business
relations or is otherwise affiliated in a nongovernmental capacity.
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(d) In addition to the provisions of this and other subparts of this part, an employee
who wishes to engage in outside employment or other outside activities must comply
with applicable statutes and regulations. Relevant provisions of law, many of which
are listed in subpart I of this part, may include:
(1) 18 U.S.C. 201(b), which prohibits a public official from seeking, accepting or
agreeing to receive or accept anything of value in return for being influenced in the
performance of an official act or for being induced to take or omit to take any action
in violation of his official duty;
(2) 18 U.S.C. 201(c), which prohibits a public official, otherwise than as provided by
law for the proper discharge of official duty, from seeking, accepting, or agreeing to
receive or accept anything of value for or because of any official act;
(3) 18 U.S.C. 203(a), which prohibits an employee from seeking, accepting, or agreeing
to receive or accept compensation for any representational services, rendered
personally or by another, in relation to any particular matter in which the United
States is a party or has a direct and substantial interest, before any department,
agency, or other specified entity. This statute contains several exceptions, as well as
standards for special Government employees that limit the scope of the restriction;
(4) 18 U.S.C. 205, which prohibits an employee, whether or not for compensation,
from acting as agent or attorney for anyone in r. claim against the United States or
from acting as agent or attorney for anyone, before any department, agency, or other
specified entity, in any particular matter in which the United States is a party or has
a direct and substantial interest. It also prohibits receipt of any gratuity, or any
share of or interest in a claim against the United States, in consideration for
assisting in the prosecution of such claim. This statute contains several exceptions,
as well as standards for special Government employees that limit the scope of the
restrictions;
(5) 18 U.S.C. 209, which prohibits an employee, other than a special Government
employee, from receiving any salary or any contribution to or supplementation of
salary from, any source other than the United States as compensation for services as
a Government employee. The statute contains several exceptions that limit its
applicability;
(6) The Emoluments Clause of the United States Constitution, article I, section 9,
clause 8, which prohibits anyone holding an office of profit or trust under the United
States from accepting any gift, office, title or emolument, including salary or
compensation, from any foreign government except as authorized by Congress. In
addition, 18 U.S.C. 219 generally prohibits any public official from being or acting as
an agent of a foreign principal, including a foreign government, corporation or person,
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if.the employee would be required to register as a foreign agent under 22 U.S.C. 611
et seq.;
(7) The Hatch Act, 5 U.S.C. 7321 through 7328, which prohibits most employees from
engaging in certain partisan political activities and prohibits all employees from
interfering with elections and conducting political activities in the Federal workplace;
(8) The honorarium prohibition, 5 U.S.C. App. (Ethics in Government Act of 1978),
which prohibits an employee, other than a special Government employee, from
receiving any compensation for an appearance, speech or article. Implementing
regulations are contained in §§2636.201 through 2636.205 of this chapter; and
(9) The limitations on outside employment, 5 U.S.C. App. (Ethics in Government Act
of 1978), which prohibit a covered noncareer employee's receipt of compensation for
specified activities and provide that he shall not allow his name to be used by any
firm or other entity which provides professional services involving a fiduciary
relationship. Implementing regulations are contained in §§2636.305 through 2636.307
of this chapter.
§2635.802
Conflicting outside employment and activities.
An employee shall not engage in outside employment or any other outside activity
that conflicts with his official duties. An activity conflicts with an employee's official
duties:
(a) If it is prohibited by statute or by an agency supplemental regulation; or
(b) If, under the standards set forth in §§2635.402 and 2635.502, it would require the
employee's disqualification from matters so central or critical to the performance of
his official duties that the employee's ability to perform the duties of his position
would be materially impaired.
Employees are cautioned that even though an outside activity may not be prohibited
under this section, it may violate other principles or standards set forth in this part
or require the employee to disqualify himself from participation in certain particular
matters under either subpart D or subpart E of this part.
Example 1: An employee of the Environmental Protection Agency has just been
promoted. His principal duty in his new position is to write regulations relating to the
disposal of hazardous waste. The employee may not continue to serve as president of
a nonprofit environmental organization that routinely submits comments on such
regulations. His service as an officer would require his disqualification from duties
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critical to the performance of his official duties on a basis so frequent as to materially
impair his ability to perform the duties of his position.
Example 2: An employee of the Occupational Safety and Health Administration who
was and is expected again to be instrumental in formulating new OSHA safety
standards applicable to manufacturers that use chemical solvents has been offered
a consulting contract to provide advice to an affected company in restructuring its
manufacturing operations to comply with the OSHA standards. The employee should
not enter into the consulting arrangement even though he is not currently working
on OSHA standards affecting this industry and his consulting contract can be
expected to be completed before he again works on such standards. Even though the
consulting arrangement would not be a conflicting activity within the meaning of
§2635.802, it would create an appearance that the employee had used his official
position to obtain the compensated outside business opportunity and it would create
the further appearance of using his public office for the private gain of the
manufacturer.
§2635.803
Prior approval for outside employment and activities.
When required by agency supplemental regulation, an employee shall obtain prior
approval before engaging in outside employment or activities. Where it is determined
to be necessary or desirable for the purpose of administering its ethics program, an
agency shall, by supplemental regulation, require employees or any category of
employees to obtain prior approval before engaging in specific types of outside
activities, including outside employment.
Note: Any requirement for prior approval of employment or activities contained in
any agency regulation, instruction, or other issuance in effect prior to the effective
date of this part shall constitute a requirement for prior approval for purposes of this
section for one year after the effective date of this part or until issuance of an agency
supplemental regulation, whichever occurs first.
§2635.804
Outside earned income limitations applicable to certain Presidential
appointees and other noncareer employees.
(a) Presidential appointees to full-time noncareer positions. A Presidential appointee
to a full-time noncareer position shall not receive any outside earned income for
outside employment, or for any other outside activity, performed during that
Presidential appointment. This limitation does not apply to any outside earned
income received for outside employment, or for any other outside activity, carried out
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in satisfaction of the employee's obligation under a contract entered into prior to April
12,1989.
(b) Covered noncareer employees. Covered noncareer employees, as defined in
§2636.303(a) of this chapter, may not, in any calendar year, receive outside earned
income attributable to that calendar year which exceeds 15 percent of the annual rate
of basic pay for level II of the Executive Schedule under 5 U.S.C. 5313, as in effect
on January 1 of such calendar year. Employees should consult the regulations
implementing this limitation, which are contained in §§2636.301 through 2636.304
of this chapter.
Note: In addition to the 15 percent limitation on outside earned income, covered
noncareer employees are prohibited from receiving any compensation for: practicing
a profession which involves a fiduciary relationship; affiliating with or being
employed by a firm or other entity which provides professional services involving a
fiduciary relationship; serving as an officer or member of the board of any association,
corporation or other entity; or teaching without prior approval. Implementing
regulations are contained in §§2636.305 through 2636.307 of this chapter.
(c) Definitions. For purposes of this section:
(1) Outside earned income has the meaning set forth in §2636.303(b) of this chapter,
except that §2636.303(b)(8) shall not apply.
(2) Presidential appointee to a full-time noncareer position means any employee who
is appointed by the President to a full-time position described in 5 U.S.C. 5312
through 5317 or to a position that, by statute or as a matter of practice, is filled by
Presidential appointment, other than:
(i) A position filled under the authority of 3 U.S.C. 105 or 3 U.S.C. 107(a) for which
the rate of basic pay is less than that for GS-9, step 1 of the General Schedule;
(ii) A position, within a White House operating unit, that is designated as not
normally-subject to change as a result of a Presidential transition;
(iii) A position within the uniformed services; or
(iv) A position in which a member of the foreign service is serving that does not
require advice and consent of the Senate.
Example 1: A career Department of Justice employee who is detailed to a
policy-making position in the White House Office that is ordinarily filled by a
noncareer employee is not a Presidential appointee to a full-time noncareer position.
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Example 2: A Department of Energy employee appointed under §213.3301 of this title
to a Schedule C position is appointed by the agency and, thus, is not a Presidential
appointee to a full-time noncareer position.
§2635.805
Service as an expert witness.
(a) Restriction. An employee shall not serve, other than on behalf of the United
States, as an expert witness, with or without compensation, in any proceeding before
a court or agency of the United States in which the United States is a party or has
a direct and substantial interest, unless the employee's participation is authorized by
the agency under paragraph (c) of this section. Except as provided in paragraph (b)
of this section, this restriction shall apply to a special Government employee only if
he has participated as an employee or special Government employee in the particular
proceeding or in the particular matter that is the subject of the proceeding.
(b) Additional restriction applicable to certain special Government employees. (1) In
addition to the restriction described in paragraph (a) of this section, a special
Government employee described in paragraph (b)(2) of this section shall not serve,
other than on behalf of the United States, as an expert witness, with or without
compensation, in any proceeding before a court or agency of the United States in
which his employing a^oncy is a party or has a direct and substantial interest, unless
the employee's participation is authorized by the agency under paragraph (c) of this
section.
(2) The restriction in paragraph (bXl) of this section shall apply to a special
Government employee who:
(i) Is appointed by the President;
(ii) Serves on a commission established by statute; or
(iii) Has served or is expected to serve for more than 60 days in a period of 365
consecutive days.
(c) Authorization to serve as an expert witness. Provided that the employee's
testimony will not result in compensation for an appearance in violation of §2636.201
of this chapter or violate any of the principles or standards set forth in this part,
authorization to provide expert witness service otherwise prohibited by paragraphs
(a) and (b) of this section may be given by the designated agency ethics official of the
agency in which the employee serves when:
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(1) After consultation with the agency representing the Government in the proceeding
or," if the Government is not a party, with the Department of Justice and the agency
with the most direct and substantial interest in the matter, the designated agency
ethics official determines that the employee's service as an expert witness is in the
interest of the Government; or
(2) The designated agency ethics official determines that the subject matter of the
testimony does not relate to the employee's official duties within the meaning of
§2635.807(a)(2)(i).
(d) Nothing in this section prohibits an employee from serving as a fact witness when
subpoenaed by an appropriate authority.
§2635.806
Participation in professional associations. [Reserved]
§2635.807
Teaching, speaking and writing.
(a) Compensation for teaching, speaking or writing. Except as permitted by
paragraph (a)(3) of this section, an employee, including a special Government
employee, shall not receive compensation from any source other than the Government
for teaching, speaking or writing that relates to the employee's official duties.
(1) Relationship to other limitations on receipt of compensation. The compensation
prohibition contained in this section is in addition to any other limitation on receipt
of compensation set forth in this chapter, including:
(i) The honorarium prohibition on receipt of compensation for an appearance, speech
or article, which is implemented in §§2636.201 through 2636.205 of this chapter;
(ii) The requirement contained in §2636.307 of this chapter that covered noncareer
employees obtain advance authorization before engaging in teaching for
compensation; and
(iii) The prohibitions and limitations in §2635.804 and in §2636.304 of this chapter
on receipt of outside earned income applicable to certain Presidential appointees and
to other covered noncareer employees.
Example 1. A personnel specialist employed by the Department of Labor has been
asked by the publisher of a magazine to write an article on his hobby of collecting
arrowheads. Even though the subject matter is unrelated to his official duties, he may
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not accept the publisher's offer of $200 for the article. Because the compensation
offered is for an article, its receipt would violate the honorarium prohibition contained
in §§2636.201 through 2636.205 of this chapter.
(2) Definitions. For purposes of this paragraph:
(i) Teaching, speaking or writing relates to the employee's official duties if:
CA) The activity is undertaken as part of the employee's official duties;
(B) The circumstances indicate that the invitation to engage in the activity was
extended to the employee primarily because of his official position rather than his
expertise on the particular subject matter;
(C) The invitation to engage in the activity or the offer of compensation for the
activity was extended to the employee, directly or indirectly, by a person who has
interests that may be affected substantially by performance or nonperformance of the
employee's official duties;
(D) The information conveyed through the activity draws substantially on ideas or
official data that are nonpublic information as defined in §2635.703(b); or
(E) Except ps provided in paragraph (aX2XiXE)(4) of this section, the subject of the
activity deals in significant part with:
(1) Any matter to which the employee presently is assigned or to which the employee
had been assigned during the previous one-year period;
(2) Any ongoing or announced policy, program or operation of the agency; or
(3) In the case of a noncareer employee as defined in §2636.303(a) of this chapter, the
general subject matter area, industry, or economic sector primarily affected by the
programs and operations of his agency.
(4) The restrictions in paragraphs (a)(2)(i)(E) (2) and (3) of this section do not apply
to a special Government employee. The restriction in paragraph (aX2XiXE)(l) of this
section applies only during the current appointment of a special Government
employee; except that if the special Government employee has not served or is not
expected to serve for more than 60 days during the first year or any subsequent one
year period of that appointment, the restriction applies only to particular matters
involving specific parties in which the special Government employee has participated
or is participating personally and substantially.
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Note: Section 2635.807(a)(2)(i)(E) does not preclude an employee, other than a covered
noncareer employee, from receiving compensation for teaching, speaking or writing
on a subject within the employee's discipline or inherent area of expertise based on
his educational background or experience even though the teaching, speaking or
writing deals generally with a subject within the agency's areas of responsibility.
Example 1: The Director of the Division of Enforcement at the Commodity Futures
Trading Commission has a keen interest in stamp collecting and has spent years
developing his own collection as well as studying the field generally. He is asked by
an international society of philatelists to give.a series of four lectures on how to
assess the value of American stamps. Because the subject does not relate to his
official duties, the Director may accept compensation for the lecture series. He could
not, however, accept a similar invitation from a commodities broker.
Example 2: A scientist at the National Institutes of Health, whose principal area of
Government research is the molecular basis of the development of cancer, could not
be compensated for writing a book which focuses specifically on the research she
conducts in her position at NIH, and thus, relates to her official duties. However, the
scientist could receive compensation for writing or editing a textbook on the
treatment of all cancers, provided that the book does not focus on recent research at
NIH, but rather conveys scientific knowledge gleaned from the scientific community
as a whole. The book might include a chapter, among many other chapters, which
discusses the molecular basis of cancer development. Additionally, the book could
contain brief discussions of recent developments in cancer treatment, even though
some of those developments are derived from NIH research, as long as it is available
to the public.
Example 3: On his own time, a National Highway Traffic Safety Administration
employee prepared a consumer's guide to purchasing a safe automobile that focuses
on automobile crash worthiness statistics gathered and made public by NHTSA. He
may not receive royalties or any other form of compensation for the guide. The guide
deals in significant part with the programs or operations of NHTSA and, therefore,
relates to the employee's official duties. On the other hand, the employee could
receive royalties from the sale of a consumer's guide to values in used automobiles
even though it contains a brief, incidental discussion of automobile safety standards
developed by NHTSA.
Example 4: An employee of the Securities and Exchange Commission may not receive
compensation for a book which focuses specifically on the regulation of the securities
industry in the United States, since that subject concerns the regulatory programs
or operations of the SEC. The employee may, however, write a book about the
advantages of investing in various types of securities as long as the book contains
only an incidental discussion of any program or operation of the SEC.
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Example 5: An employee of the Department of Commerce who works in the
Department's employee relations office is an acknowledged expert in the field of
Federal employee labor relations, and participates in Department negotiations with
employee unions. The employee may receive compensation from a private training
institute for a series of lectures which describe the decisions of the Federal Labor
Relations Authority concerning unfair labor practices, provided that her lectures do
not contain any significant discussion of labor relations cases handled at the
Department of Commerce, or the Department's labor relations policies. Federal Labor
Relations Authority decisions concerning Federal employee unfair labor practices are
not a specific program or operation of the Department of Commerce and thus do not
relate to the employee's official duties. However, an employee of the FLRA could not
give the same presentations for compensation.
Example 6: A program analyst employed at the Environmental Protection Agency
may receive royalties and other compensation for a book about the history of the
environmental movement in the United States even though it contains brief
references to the creation and responsibilities of the EPA. A covered noncareer
employee of the EPA, however, could not receive compensation for writing the same
book because it deals with the general subject matter area affected by EPA programs
and operations. Neither employee could receive compensation for writing a book that
focuses on specific EPA regulations or otherwise on its programs and operations.
Example 7: An attorney in private practice has been given a one year appointment
as a special Government employee to serve on an advisory committee convened for
the purpose of surveying and recommending modification of procurement regulations
that deter small businesses from competing for Government contracts. Because his
service under that appointment is not expected to exceed 60 days, the attorney may
accept compensation for an article about the anticompetitive effects of certain
regulatory certification requirements even though those regulations are being
reviewed by the advisory committee. The regulations which are the focus of the
advisory committee deliberations are not a particular matter involving specific
parties. Because the information is nonpublic, he could not, however, accept
compensation for an article which recounts advisory committee deliberations that
took place in a meeting closed to the public in order to discuss proprietary
information provided by a small business.
Example 8: A biologist who is an expert in marine life is employed for more than'60
days in a year as a special Government employee by the National Science Foundation
to assist in developing a program of grants by the Foundation for the study of coral
reefs. The biologist may continue to receive compensation for speaking, teaching and
writing about marine life generally and coral reefs specifically. However, during the
term of her appointment as a special Government employee, she may not receive
compensation for an article about the NSF program she is participating in developing.
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Only the latter would concern a matter to which the special Government employee
is assigned.
Example 9: An expert on international banking transactions has been given a
one-year appointment as a special Government employee to assist in analyzing
evidence in the Government's fraud prosecution of owners of a failed savings and loan
association. It is anticipated that she will serve fewer than 60 days under that
appointment. Nevertheless, during her appointment, the expert may not accept
compensation for an article about the fraud prosecution, even though the article does
not reveal nonpublic information. The prosecution is a particular matter that involves
specific parties.
(ii) Agency has the meaning set forth in §2635.102(a), except that any component of
a department designated as a separate agency under §2635.203(a) shall be considered
a separate agency.
(iii) Compensation includes any form of consideration, remuneration or income,
including royalties, given for or in connection with the employee's teaching, speaking
or writing activities. Unless accepted under specific statutory authority, such as 31
U.S.C. 1353, 5 U.S.C. 4111 or 7342, or an agency gift acceptance statute, it includes
transportation, lodgings and meals, whether provided in kind, by purchase of a ticket,
by payment in advance or by reimbursement after the expense has been incurred. It
does not include:
t
(A) Items offered by any source that could be accepted from a prohibited source under
subpart B of this part;
(B) Meals or other incidents of attendance such as waiver of attendance fees or course
materials furnished as part of the event at which the teaching or speaking takes
place; or
(C) Copies of books or of publications containing articles, reprints of articles, tapes
of speeches, and similar items that provide a record of the teaching, speaking or
writing activity.
(iv) Receive means that there is actual or constructive receipt of the compensation by
the employee so that the employee has the right to exercise dominion and control over
the compensation and to direct its subsequent use. Compensation received by an
employee includes compensation which is:
(A) Paid to another person, including a charitable organization, on the basis of
designation, recommendation or other specification by the employee; or
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(B) Paid with the employee's knowledge and acquiescence to his parent, sibling,
spouse, child, or dependent relative.
(v) Particular matter involving specific parties has the meaning set forth in
§2637.102(a)(7) of this chapter.
(vi) Personal and substantial participation has the meaning set forth in
§2635.402(b)(4).
(3) Exception for teaching certain courses. Notwithstanding that the activity would
relate to his official duties under paragraphs (a)(2)(i) (B) or (E) of this section, an
employee may accept compensation for teaching a course requiring multiple
presentations by the employee if the course is offered as part of:
(i) The regularly established curriculum of:
(A) An institution of higher education as defined at 20 U.S.C. 1141(a);
(B) An elementary school as defined at 20 U.S.C. 2891(8); or
(C) A secondary school as defined at 20 U.S.C. 2891(21); or
(ii) A program of education or training sponsored and funded by the Federal
Government or by a State or local government which is not offered by an entity
described in paragraph (a)(3)(i) of this section.
Example 1: An employee of the Cost Accounting Standards Board who teaches an
advanced accounting course as part of the regular business school curriculum of an
accredited university may receive compensation for teaching the course even though
a substantial portion of the course deeds with cost accounting principles applicable
to contracts with the Government. Moreover, his receipt of a salary or other
compensation for teaching this course does not violate the honorarium prohibition on
receipt of compensation for any speech, which is implemented in §§2636.201 through
2636.205 of this chapter.
Example 2: An attorney employed by the Equal Employment Opportunity
Commission may accept compensation for teaching a course at a state college on. the
subject of Federal employment discrimination law. The attorney could not accept
compensation for teaching the same seminar as part of a continuing education
program sponsored by her bar association because the subject of the course is focused
on the operations or programs of the EEOC and the sponsor of the course is not an
accredited educational institution.
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Example 3: An employee of the National Endowment for the Humanities is invited
by a private university to teach a course that is a survey of Government policies in
support of artists, poets and writers. As part of his official duties, the employee
administers a grant that the university has received from the NEH. The employee
may not accept compensation for teaching the course because the university has
interests that may be substantially affected by the performance or nonperformance
of the employee's duties. Likewise, an employee may not receive compensation for any
teaching that is undertaken as part of his official duties or that involves the use of
nonpublic information.
(b) Reference to official position. An employee who is engaged in teaching, speaking
or writing as outside employment or as an outside activity shall not use or permit the
use of his official title or position to identify him in connection with his teaching,
speaking or writing activity or to promote any book, seminar, course, program or
similar undertaking, except that:
(1) An employee may include or permit the inclusion of his title or position as one of
several biographical details when such information is given to identify him in
connection with his teaching, speaking or writing, provided that his title or position
is given no more prominence than other significant biographical details;
(2) An employee may use, or permit the use of, his title or position in connection with
an article published in a scientific or professional journal, provided that the title or
position is accompanied by a reasonably prominent disclaimer satisfactory to the
agency stating that the views expressed in the article do not necessarily represent the
views of the agency or the United States; and
(3) An employee who is ordinarily addressed using a general term of address, such
as "The Honorable," or a rank, such as a military or ambassadorial rank, may use or
permit the use of that term of address or rank in connection with his teaching,
speaking or writing.
Note: Some agencies may have policies requiring advance agency review, clearance,
or approval of certain speeches, books, articles or similar products to determine
whether the product contains an appropriate disclaimer, discloses nonpublic
information, or otherwise complies with this section.
Example 1: A meteorologist employed with the National Oceanic and Atmospheric
Administration is asked by a local university to teach a graduate course on
hurricanes. The university may include the meteorologist's Government title and
position together with other information about his education and previous
employment in course materials setting forth biographical data on all teachers
involved in the graduate program. However, his title or position may not be used to
promote the course, for example, by featuring the meteorologist's Government title,
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Senior Meteorologist, NOAA, in bold type under his name. In contrast, his title may
be used in this manner when the meteorologist is authorized by NOAA to speak in
his official capacity.
Example 2: A doctor just employed by the Centers for Disease Control has written a
paper based on his earlier independent research into cell structures. Incident to the
paper's publication in the Journal of the American Medical Association, the doctor
may be given credit for the paper, as Dr. M. Wellbeing, Associate Director, Centers
for Disease Control, provided that the article also contains a disclaimer, concurred
in by the CDC, indicating that the paper is the result of the doctor's independent
research and does not represent the findings of the CDC.
Example 3: An employee of the Federal Deposit Insurance Corporation has been
asked to give a speech in his private capacity, without compensation, to the annual
meeting of a committee of the American Bankers Association on the need for banking
reform. The employee may be described in his introduction at the meeting as an
employee of the Federal Deposit Insurance Corporation provided that other pertinent
biographical details are mentioned as well.
§2635.808
Fundraising activities.
An employee may engage in fundraising only in accordance with the restrictions in
part 950 of this title on the conduct of charitable fundraising in the Federal
workplace and in accordance with paragraphs (b) and (c) of this section.
(a) Definitions. For purposes of this section: (1) Fundraising means the raising of
funds for a nonprofit organization, other than a political organization as defined in
26 U.S.C. 527(e), through:
(1) Solicitation of funds or sale of items; or
(ii) Participation in the conduct of an event by an employee where any portion of the
cost of attendance or participation may be taken as a charitable tax deduction by a
person incurring that cost.
(2) Participation in the conduct of an event means active and visible participation in
the promotion, production, or presentation of the event and includes serving as
honorary chairperson, sitting at a head taBle during the event, and standing in a
reception line. The term does not include mere attendance at an event provided that,
to the employee's knowledge, his attendance is not used by the nonprofit organization
to promote the event. While the term generally includes any public speaking during
the event, it does not include the delivery of an official speech as defined in
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paragraph (aX3) of this section or any seating or other participation appropriate to
the delivery of such a speech. Waiver of a fee for attendance at an event by a
participant in the conduct of that event does not constitute a gift for purposes of
subpart B of this part.
Note: This section does not prohibit fundraising for political parties. However, there
are statutory restrictions that apply to political fundraising. Employees, other than
those exempt under 5 U.S.C. 7324(d), are prohibited by the Hatch Act, 5 U.S.C. 7321
through 7328, from soliciting or collecting contributions or other funds for a partisan
political purpose or in connection with a partisan election. In addition, all employees
are prohibited by 18 U.S.C. 602 from knowingly soliciting contributions for any
political purpose from other employees and by 18 U.S.C. 607 from soliciting such
contributions in the Federal workplace.
Example 1: The Secretary of Transportation has been asked to serve as master of
ceremonies for an All-Star Gala. Tickets to the event cost $150 and are tax deductible
as a charitable donation, with proceeds to be donated to a local hospital. By serving
as master of ceremonies, the Secretary would be participating in fiindraising.
(3) Official speech means a speech given by an employee in his official capacity on a
subject matter that relates to his official duties, provided that the employee's agency
has determined that the event at which the speech is to be given provides an
appropriate forum for the dissemination of the information to be presented and
provided that the employee does not request donations or other support for the
nonprofit organization. Subject matter relates to an employee's official duties if it
focuses specifically on the employee's official duties, on the responsibilities, programs,
or operations of the employee's agency as described in §2635.807(a)(2)(i)(E), or on
matters of Administration policy on which the employee has been authorized to
speak.
Example 1: The Secretary of Labor is invited to speak at a banquet honoring a
distinguished labor leader, the proceeds of which will benefit a nonprofit organization
that assists homeless families. She devotes a mcu'or portion of her speech to the
Administration's Points of Light initiative, an effort to encourage citizens to volunteer
their time to help solve serious social problems. Because she is authorized to Bpeak
on Administration policy, her remarks at the banquet are an official speech. However,
the Secretary would be engaged in fundraising if she were to conclude her official
speech with a request for donations to the nonprofit organization.
Example 2: A charitable organization is sponsoring a two-day tennis tournament at
a country dub in the Washington, DC area to raise funds for recreational programs
for learning disabled children. The organization has invited the Secretary of
Education to give a speech on federally funded special education programs at the
awards dinner to be held at the conclusion of the tournament and a determination
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has been made that the dinner is an appropriate forum for the particular speech. The
Secretary may speak at the dinner and, under §2635.204(g)(l), he may partake of the
meal provided to him at the dinner.
(4) Personally solicit means to request or otherwise encourage donations or other
support either through person-to-person contact or through the use of one's name or
identity in correspondence or by permitting its use by others. It does not include the
solicitation of funds through the media or through either oral remarks, or the
contemporaneous dispatch of like items of mass-produced correspondence, if such
remarks or correspondence are addressed to a group consisting of many persons,
unless it is known to the employee that the solicitation is targeted at subordinates
or at persons who are prohibited sources within the meaning of §2635.203(d). It does
not include behind-the-scenes assistance in the solicitation of funds, such as drafting
correspondence, stuffing envelopes, or accounting for contributions.
Example 1: An employee of the Department of the Energy who signs a letter soliciting
funds for a local private school does not "personally solicit" funds when 500 copies of
the letter, which makes no mention of his DOE position and title, are mailed to
members of the local community, even though some individuals who are employed by
Department of Energy contractors may receive the letter.
(b) Fundraising in an official capacity. An employee may participate in fundraising
in an official capacity if, in accordance with a statute, Executive order, regulation or
otherwise as determined by the agency, he is authorized to engage in the fundraising
activity as part of his official duties. When authorized to participate in an official
capacity, an employee may use his official title, position and authority.
Example 1: Because participation in his official capacity is authorized under part 950
of this title, the Secretary of the Army may sign a memorandum to all Army
personnel encouraging them to donate to the Combined Federal Campaign.
(c) Fundraising in a personal capacity. An employee may engage in fundraising in his
personal capacity provided that he does not:
(1) Personally solicit funds or other support from a subordinate or from any person:
(i) Known to the employee, if the employee is other than a special Government
employee, to be a prohibited source within the meaning of §2635.203(d); or
(ii) Known to the employee, if the employeels a special Government employee, to be
a prohibited source within the meaning of §2635.203(dX4) that is a person whose
interests may be substantially affected by performance or nonperformance of his
official duties;
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(2) Use or permit the use of his official title, position or any authority associated with
his public office to further the fundraising effort, except that an employee who is
ordinarily addressed using a general term of address, such "The Honorable," or a
rank, such as a military or ambassadorial rank, may use or permit the use of that
term of address or rank for such purposes; or
(3) Engage in any action that would otherwise violate this part.
Example 1: A nonprofit organization is sponsoring a golf tournament to raise funds
for underprivileged children. The Secretary of the Navy may not enter the
tournament with the understanding that the organization intends to attract
participants by offering other entrants the opportunity, in exchange for a donation
in the form of an entzy fee, to spend the day playing 18 holes of golf in a foursome
with the Secretary of the Navy.
Example 2: An employee of the Merit Systems Protection Board may not use the
agency's photocopier to reproduce fundraising literature for her son's private school.
Such use of the photocopier would violate the standards at §2635.704 regarding use
of Government property.
Example 3: An Assistant Attorney General may not sign a letter soliciting funds for
a homeless shelter as "John Doe, Assistant Attorney General." He also may not sign
a letter with just his signature, "John Doe," soliciting funds from a prohibited source,
unless the letter is one of many identical, mass-produced letters addressed to a large
group where the solicitation is not known to him to be targeted at persons who are
either prohibited sources or subordinates.
§2635.809
Just financial obligations.
Employees shall satisfy in good faith their obligations as citizens, including all just
financial obligations, especially those such as Federal, State, or local taxes that are
imposed by law. For purposes of this section, a just financial obligation includes any
financial obligation acknowledged by the employee or reduced to judgment by a court.
In good faith means an honest intention to fulfill any just financial obligation in a
timely manner. In the event of a dispute between an employee and an alleged
creditor, this section does not require an agency to determine the validity or amount
of the disputed debt or to collect a debt on the alleged creditor's behalf.
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Subpart I - Related Statutory Authorities
§2635.901
General.
In addition to the standards of ethical conduct set forth in subparts A through H of
this part, there are a number of statutes that establish standards to which an
employee's conduct must conform. The list set forth in §2635.902 references some of
the more significant of those statutes. It is not comprehensive and includes only
references to statutes of general applicability. While it includes references to several
of the basic conflict of interest statutes whose standards are explained in more detail
throughout this part, it does not include references to statutes of more limited
applicability, such as statutes that apply only to officers and employees of the
Department of Defense.
§2635.902
Related statutes.
(a) The prohibition against solicitation or receipt of bribes (18 U.S.C. 201(b)).
(b) The prohibition against solicitation or receipt of illegal gratuities (18 U.S.C.
201(c)).
(c) The prohibition against seeking or receiving compensation for certain
representational services before the Government (18 U.S.C. 203).
(d) The prohibition against assisting in the prosecution of claims against the
Government or acting as agent or attorney before the Government (18 U.S.C. 205).
(e) The post-employment restrictions applicable to former employees (18 U.S.C. 207,
with implementing regulations at parts 2637 and 2641 of this chapter).
(f) The post-employment restrictions applicable to former procurement officials (41
U.S.C. 423(D).
(g) The prohibition against participating in matters affecting an employee's own
financial interests or the financial interests of other specified persons or organizations
(18 U.S.C. 208).
(h) The prohibition on a procurement official's negotiating for employment with
competing contractors (41 U.S.C. 423(bXl)).
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(i) The prohibition against receiving salary or any contribution to or supplementation
of salary as compensation for Government service from a source other than the
United States (18 U.S.C: 209).
(j) The prohibition against gifts to superiors (5 U.S.C. 7351).
(k) The prohibition against solicitation or receipt of gifts from specified prohibited
sources (5 U.S.C. 7353).
(1) The prohibition against solicitation or receipt of gifts from competing contractors
(41 U.S.C. 423(b)(2)).
(m) The provisions governing receipt and disposition of foreign gifts and decorations
(5 U.S.C. 7342).
(n) The Code of Ethics for Government Service (Pub. L. 96-303, 94 Stat. 855).
(o) The prohibitions against certain political activities (5 U.S.C. 7321 et seq. and 18
U.S.C. 602, 603, 606 and 607).
(p) The prohibitions against disloyalty and striking (5 U.S.C. 7311 and 18 U.S.C.
1918).
(q) The general prohibition against acting as the agent of a foreign principal required
to register under the Foreign Agents Registration Act (18 U.S.C. 219).
(r) The prohibition against employment of a person convicted of participating in or
promoting a riot or civil disorder (5 U.S.C. 7313).
(s) The prohibition against employment of an individual who habitually uses
intoxicating beverages to excess (5 U.S.C. 7352).
(t) The prohibition against misuse of a Government vehicle (31 U.S.C. 1344).
(u) The prohibition against misuse of the franking privilege (18 U.S.C. 1719).
(v) The prohibition against fraud or false statements in a Government matter (18
U.S.C. 1001).
(w) The prohibition against concealing, mutilating or destroying a public record (18
U.S.C. 2071).
(x) The prohibition against counterfeiting or forging transportation requests (18
U.S.C. 508).
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(y) The restrictions on disclosure of certain sensitive Government information under
the Freedom of Information Act and the Privacy Act (5 U.S.C. 552 and 552a).
(z) The prohibitions against disclosure of classified information (18 U.S.C. 798 and
50 U.S.C. 783(b)).
(aa) The prohibition against disclosure of proprietary information and certain other
information of a confidential nature (18 U.S.C. 1905).
(bb) The prohibition against unauthorized disclosure of certain procurement sensitive
information, including proprietary or source selection information (41 U.S.C. 423(b)
(3) and (d)).
(cc) The prohibition against unauthorized use of documents relating to claims from
or by the Government (18 U.S.C. 285).
(dd) The prohibition against certain personnel practices (5 U.S.C. 2302).
(ee) The prohibition against interference with civil service examinations (18 U.S.C.
1917).
(ff) The restrictions on use of public funds for lobbying (18 U.S.C. 1913)
(gg) The prohibition against participation in the appointment or promotion of
relatives (5 U.S.C. 3110).
(hh) The prohibition against solicitation or acceptance of anything of value to obtain
public office for another (18 U.S.C. 211).
(ii) The prohibition against conspiracy to commit an offense against or to defraud the
United States (18 U.S.C. 371).
(jj) The prohibition against embezzlement or conversion of Government money or
property (18 U.S.C. 641).
(kk) The prohibition against failing to account for public money (18 U.S.C. 643).
(11) The prohibition against embezzlement of the money or property of another person
that is in the possession of an employee by reason of his employment (18 U.S.C. 654).
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