3.104-6 Ethics advisory opinions regarding prohibitions on a former official’s acceptance of compensation from a contractor
Source: FAR 3.104-6 on acquisition.gov
Federal officials can request written ethics opinions to determine if accepting compensation from a contractor is prohibited, and good faith reliance on such opinions protects both the official and contractor from violations.
Overview
FAR 3.104-6 provides a process for current or former federal officials to seek written ethics advisory opinions regarding whether they are prohibited from accepting compensation from a contractor under 41 U.S.C. 2104. This section outlines the steps for requesting an advisory opinion, the required information, the agency ethics official’s responsibilities, and the protections afforded to individuals and contractors who rely in good faith on such opinions. The regulation aims to prevent conflicts of interest and ensure compliance with post-employment restrictions related to procurement integrity.
Key Rules
- Requesting an Advisory Opinion
- Officials or former officials uncertain about post-employment compensation restrictions may request a written advisory opinion from their agency ethics official before accepting compensation from a contractor.
- Content of the Request
- The request must be written, signed, dated, and include detailed information about the relevant procurement(s), the individual’s participation, and the contractor involved.
- Agency Ethics Official’s Response
- The agency ethics official should issue an opinion within 30 days of receiving a complete request, or as soon as practicable.
- Additional Information and Reliance
- The ethics official may request more information if needed and may rely on the information provided unless there is reason to doubt its accuracy. Good faith reliance on a written opinion protects both the requester and contractor from knowing violations, unless the opinion was based on fraudulent or misleading information.
Responsibilities
- Contracting Officers: May be asked to provide information to the ethics official.
- Contractors: Must not knowingly offer compensation in violation of post-employment restrictions.
- Agencies: Must provide timely, accurate ethics opinions and ensure officials are aware of the process.
Practical Implications
- This section exists to help prevent post-employment conflicts of interest and ensure compliance with procurement integrity laws. It provides a safe harbor for officials and contractors who act in good faith based on written ethics opinions. Common pitfalls include incomplete requests, delays in obtaining opinions, or reliance on inaccurate information.
(a) An official or former official of a Federal agency who does not know whether he or she is or would be precluded by http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2104&num=0&edition=prelim" target="_blank">41 U.S.C. 2104 (see 3.104-3(d)) from accepting compensation from a particular contractor may request advice from the appropriate agency ethics official before accepting such compensation.
(b) The request for an advisory opinion must be in writing, include all relevant information reasonably available to the official or former official, and be dated and signed. The request must include information about the-
(1) Procurement(s), or decision(s) on matters under 3.104-3(d)(1)(iii), involving the particular contractor, in which the individual was or is involved, including contract or solicitation numbers, dates of solicitation or award, a description of the supplies or services procured or to be procured, and contract amount;
(2) Individual’s participation in the procurement or decision, including the dates or time periods of that participation, and the nature of the individual’s duties, responsibilities, or actions; and
(3) Contractor, including a description of the products or services produced by the division or affiliate of the contractor from whom the individual proposes to accept compensation.
(c) Within 30 days after receipt of a request containing complete information, or as soon thereafter as practicable, the agency ethics official should issue an opinion on whether the proposed conduct would violate http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2104&num=0&edition=prelim" target="_blank">41 U.S.C. 2104.
(d)
(1) If complete information is not included in the request, the agency ethics official may ask the requester to provide more information or request information from other persons, including the source selection authority, the contracting officer, or the requester’s immediate supervisor.
(2) In issuing an opinion, the agency ethics official may rely upon the accuracy of information furnished by the requester or other agency sources, unless he or she has reason to believe that the information is fraudulent, misleading, or otherwise incorrect.
(3) If the requester is advised in a written opinion by the agency ethics official that the requester may accept compensation from a particular contractor, and accepts such compensation in good faith reliance on that advisory opinion, then neither the requester nor the contractor will be found to have knowingly violated http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section2104&num=0&edition=prelim" target="_blank">41 U.S.C. 2104. If the requester or the contractor has actual knowledge or reason to believe that the opinion is based upon fraudulent, misleading, or otherwise incorrect information, their reliance upon the opinion will not be deemed to be in good faith.