3.104-3 Statutory and related prohibitions, restrictions, and requirements
Source: FAR 3.104-3 on acquisition.gov
FAR 3.104-3 strictly prohibits improper disclosure, receipt, and use of procurement information, and imposes mandatory reporting and post-employment restrictions to safeguard the integrity of federal contracting.
Overview
FAR 3.104-3 establishes strict prohibitions and requirements to protect the integrity of the federal procurement process. It prohibits the unauthorized disclosure and obtaining of contractor bid, proposal, or source selection information before contract award. The regulation also sets out specific actions for agency officials who are contacted by offerors about potential employment, including mandatory reporting and disqualification procedures. Additionally, it imposes a one-year ban on certain former federal officials from accepting compensation from contractors they were involved with in significant procurement decisions exceeding $10 million. These rules are designed to prevent conflicts of interest, improper influence, and unfair competitive advantages in federal contracting.
Key Rules
- Prohibition on Disclosing Procurement Information
- Officials and advisors with access to sensitive procurement information must not disclose it before contract award, except as allowed by law.
- Prohibition on Obtaining Procurement Information
- No person may knowingly obtain protected procurement information before contract award unless permitted by law.
- Employment Contact Reporting and Disqualification
- Agency officials involved in procurements over the simplified acquisition threshold must report employment contacts with offerors and either reject employment or recuse themselves from the procurement.
- One-Year Ban on Compensation for Former Officials
- Certain former officials are prohibited from accepting compensation from contractors they were involved with in major procurement actions for one year after their involvement.
Responsibilities
- Contracting Officers: Ensure compliance with disclosure, reporting, and post-employment restrictions; retain employment contact reports for two years.
- Contractors: Avoid seeking or using protected information; do not offer employment to covered officials within the restricted period.
- Agencies: Oversee compliance, maintain records, and enforce prohibitions and reporting requirements.
Practical Implications
- These rules exist to prevent procurement fraud, conflicts of interest, and unfair advantages.
- Violations can result in criminal penalties, contract termination, and debarment.
- Common pitfalls include failure to report employment contacts, improper disclosure of information, and post-employment violations.
(a) Prohibition on disclosing procurement information(41 U.S.C. 2102).
(1) A person described in paragraph (a)(2) of this subsection must not, other than as provided by law, knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. (See 3.104-4(a).)
(2) Paragraph (a)(1) of this subsection applies to any person who-
(i) Is a present or former official of the United States, or a person who is acting or has acted for or on behalf of, or who is advising or has advised the United States with respect to, a Federal agency procurement; and
(ii) By virtue of that office, employment, or relationship, has or had access to contractor bid or proposal information or source selection information.
(b) Prohibition on obtaining procurement information ( 41 U.S.C. 2102). A person must not, other than as provided by law, knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates.
(c) Actions required when an agency official contacts or is contacted by an offeror regarding non-Federal employment (41 U.S.C. 2103).
(1) If an agency official, participating personally and substantially in a Federal agency procurement for a contract in excess of the simplified acquisition threshold, contacts or is contacted by a person who is an offeror in that Federal agency procurement regarding possible non-Federal employment for that official, the official must-
(i) Promptly report the contact in writing to the official’s supervisor and to the agency ethics official; and
(ii) Either reject the possibility of non-Federal employment or disqualify himself or herself from further personal and substantial participation in that Federal agency procurement (see 3.104-5) until such time as the agency authorizes the official to resume participation in that procurement, in accordance with the requirements of 18 U.S.C. 208 and applicable agency regulations, because-
(A) The person is no longer an offeror in that Federal agency procurement; or
(B) All discussions with the offeror regarding possible non-Federal employment have terminated without an agreement or arrangement for employment.
(2) A contact is any of the actions included as "seeking employment" in 5 CFR 2635.603(b). In addition, unsolicited communications from offerors regarding possible employment are considered contacts.
(3) Agencies must retain reports of employment contacts for 2 years from the date the report was submitted.
(4) Conduct that complies with http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2104&num=0&edition=prelim" target="_blank">41 U.S.C. 2104 may be prohibited by other criminal statutes and the Standards of Ethical Conduct for Employees of the Executive Branch. See 3.104-2(b)(2).
(d) Prohibition on former official's acceptance of compensation from a contractor ( http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2104&num=0&edition=prelim" target="_blank">41 U.S.C. 2104).
(1) A former official of a Federal agency may not accept compensation from a contractor that has been awarded a competitive or sole source contract, as an employee, officer, director, or consultant of the contractor within a period of 1 year after such former official-
(i) Served, at the time of selection of the contractor or the award of a contract to that contractor, as the procuring contracting officer, the source selection authority, a member of a source selection evaluation board, or the chief of a financial or technical evaluation team in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000;
(ii) Served as the program manager, deputy program manager, or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractor; or
(iii) Personally made for the Federal agency a decision to-
(A) Award a contract, subcontract, modification of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor;
(B) Establish overhead or other rates applicable to a contract or contracts for that contractor that are valued in excess of $10,000,000;
(C) Approve issuance of a contract payment or payments in excess of $10,000,000 to that contractor; or
(D) Pay or settle a claim in excess of $10,000,000 with that contractor.
(2) The 1-year prohibition begins on the date-
(i) Of contract award for positions described in paragraph (d)(1)(i) of this subsection, or the date of contractor selection if the official was not serving in the position on the date of award;
(ii) The official last served in one of the positions described in paragraph (d)(1)(ii) of this subsection; or
(iii) The official made one of the decisions described in paragraph (d)(1)(iii) of this subsection.
(3) Nothing in paragraph (d)(1) of this subsection may be construed to prohibit a former official of a Federal agency from accepting compensation from any division or affiliate of a contractor that does not produce the same or similar products or services as the entity of the contractor that is responsible for the contract referred to in paragraph (d)(1) of this subsection.