NOAA Acquisition ManualMain Table of Contents
Subchapter A- General
Part 1330-3 Improper Business Practices and Personal Conflicts of Interest
Part 1330-3 Improper Business Practices and Personal Conflicts of Interest
The Standards of Ethical Conduct for Employees of the Executive Branch in 5 Code of Federal Regulations (CFR) 2635 detail provisions and standards that apply to all employees participating in any step of the acquisition process. Any employee who becomes aware of a potential conflict of interest during participation in an acquisition to which the individual has been assigned shall seek advice about their qualifications to continue to serve in the assignment through the designated ethics officer. The employee shall also advise the contracting officer and CLD as issues involving personal conflicts of interest may also raise questions of bias or an appearance of bias that may expose the subject acquisition to scrutiny.
“Senior Official” for post-employment purposes, senior status is determined by salary. Senior in this case means an employee in the Senior Executive Service (SES) or an employee in another pay system whose annual rate of basic pay, excluding locality adjustment, is equal to or greater than 86.5% of the Executive Schedule Level II salary.
(a) Before Leaving Government.
- An employee may not work on a matter (such as an existing or future contract or grant) that would have a direct and predictable effect on the employee’s financial interests or on the financial interests of a person or organization with whom the employee is negotiating or has an arrangement concerning prospective employment. (18 U.S.C. § 208);
- An employee may not work on a matter if the employee is “seeking employment” with a person or organization affected by that matter, even if the employee’s job search has not progressed to actual negotiations. (5 C.F.R. Part 2635);
- An employee working “personally and substantially” on a procurement for a contract worth more than the simplified acquisition threshold (currently $150,000) must provide written notice of a contact with an offeror about prospective employment, even if the employee immediately rejects the possibility of employment. The employee must file a written disqualification memo if the employee commences to seek employment. (41 U.S.C. § 2103; 48 C.F.R. Part 3);
- An offeror who engages in employment discussions with a federal employee involved in an acquisition subject to the restrictions of 41 U.S.C. § 2103 and who knows that the federal employee has not done the required notification is subject to criminal, civil, and administrative penalties. (FAR 3.104-8(b))
(b) After Leaving Government
- Permanent ban for specific party matter – A former employee is prohibited from having contact with an employee of any Federal agency or court, on behalf of another person or entity, concerning a specific party matter (such as a contract or grant) with which the former employee was involved as a Government employee. (18 U.S.C. § 207);
- Two-year ban for specific party matter (official responsibility) – A former employee is prohibited for two years from having contact with an employee of any Federal agency or court, on behalf of another person or entity, concerning a specific party matter (such as a contract or grant) for which the former Government employee had official responsibility in his last year of Government service. (18 U.S.C. § 207);
- One-year ban for senior employees – A former high-level employee is prohibited from having contact with an employee of his or her former Federal agency, on behalf of another person or entity, concerning any official matter for one year. (18 U.S.C. § 207; 5 U.S.C. § 5311);
- Two-year ban for senior political appointees – A former senior political appointee shall not communicate with or appear before an officer or employee of his or her former Federal agency, on behalf of another person or entity, concerning any official matter for two years. (18 U.S.C. § 207);
- One-year compensation ban for employees involved in procurement –
- A former employee may not accept compensation from a contractor within one year after the former employee served as the contracting officer, source selection authority, a member of the source selection evaluation board, chief of a financial or technical evaluation team, program manager, or deputy program manager, in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000. (41 U.S.C. § 2104; FAR 3.104-3(d));
- A former employee may not accept compensation from a contractor within one year after the former employee personally made for the federal agency a decision to 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; establish overhead or other rates applicable to one or more contracts for that contractor that are valued in excess of $10,000,000; approve issuance of one or more contract payments in excess of $10,000,000; or pay or settle a claim in excess of $10,000,000 with that contractor. (41 U.S.C. § 2104; FAR 3.104-3(d))
(c) Solicitation and Contract Language.
- Federal laws and regulations impose certain restrictions on federal employees after leaving Government service.
- To maximize awareness of and improve compliance with post-Governemt employement restrictions NOAA Contracting Officers shall included language at 1330-52.203-71, Notice of Post-Government Employment Restrictions in all solicitations and contracts exceeding the simplified acquisition Threshold.
(d) Contractor Acknowledgment
- By submission of an offer in response to a NOAA solicitation or acceptance of a contract, the contractor acknowledges the restrictions on current and former NOAA employees; and
- The contractor further acknowledges that it has provided notice to their former NOAA employees of post-Government employment restrictions that may be applicable to them.
(e) NOAA Employee Awareness
- An official or former official who does not know whether he or she would be precluded from accepting compensation from a particular contractor may seek an advisory opinion from the Ethics Law and Programs Division of the Office of General Counsel.
- AGO encourages NOAA employees to consult the Department’s Ethics Law and Programs Division for specific guidance at email@example.com.
(a) Any individuals requiring access to source selection information as a result of participating on a source selection or in the performance of their duties shall read FAR Part 3.104 and 41 U.S.C. 423 and sign the Confidentiality Certificate, Conflict of Interest Certificate, and Non-Disclosure Agreement and Statement of Financial Interest prior to participating in the source selection process or obtaining access to source selection information. Refer to CAM 1315.3, Appendix C – Confidentiality Certificate, Appendix D – Conflict of Interest Certificate, and Appendix E – Non Disclosure Agreement.
(a) An employee who becomes aware of a need to disqualify themselves from participation in an acquisition to which they have been assigned should in accordance with 5 CFR 2635.604(b) and FAR 3.104-6 provide a written request for disqualification to the individual’s supervisor or source selection authority (SSA) if the individual is participating in source selection. This request should be routed through the contracting officer and designated agency ethics official.
(g) The Head of Contracting Activity (HCA) has not delegated authority under this subsection.
(c) BPO shall coordinate any actions taken with regard to Whistleblower Protections for Contractor Employees with OGC CLD.
(a) In order to provide appropriate protections for NOAA regarding scientific integrity and research misconduct under its contracts, orders and grants, NOAA contracting officers shall include the NOAA solicitation and contract language located at 1330-52.203-70 entitled “Scientific Integrity and Research Misconduct” in new solicitations and resulting contracts and orders exceeding the micro-purchase threshold, and modify existing contracts and orders, that provide for the performance of scientific activities or presentation of the results of scientific activities as defined in NAO 202-735D. Incorporation of the provision into existing applicable contracts and orders shall be done in conjunction with the next modification to be issued.
(b) NOAA contracting officers will participate in the reporting, investigation, and resolution of allegations of scientific or research misconduct as set forth in the Procedural Handbook made a part of NAO 202-735D.
(c) In cases where a finding of research misconduct related to a NOAA contract or order has been made, contracting officers shall pursue appropriate remedies available to the Government under the contract or order terms and conditions and applicable laws and regulations that may include, but are not limited to, disallowance of costs, recoupment of payments, termination, suspension or debarment.