Hiring former government officials

This lesson is not legal advice. Post-government employment rules turn on the person's exact duties and dates. Before an offer becomes final, the candidate should have written advice from their agency ethics official, and the company should have written advice from its own counsel.

It starts before the first conversation

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 an offeror in that procurement about possible non-Federal employment 1, the official must promptly report the contact in writing to the official's supervisor and the agency ethics official 2, and either reject the possibility of non-Federal employment or disqualify himself or herself from further personal and substantial participation in that procurement 3. Unsolicited communications from offerors regarding possible employment are considered contacts 4.

Practice: make it company policy that no one opens an employment conversation with a government employee who works on any procurement you are competing in. When a candidate approaches you, ask them in writing to confirm that they have dealt with their agency's reporting and disqualification requirements before you go further.

Check 1

Under FAR 3.104-3, how are unsolicited communications from offerors about possible employment treated?They are considered contactsThey are ignored unless the official repliesThey are permitted without any reportThey are treated as offers of employment

The restrictions to check

18 U.S.C. 207 restricts what a former employee may do on behalf of others. Its permanent restrictions on representation on particular matters 5 cover matters in which the person participated personally and substantially as an officer or employee 6. The conduct it restricts is knowingly making, with the intent to influence, any communication to or appearance before the officers, employees and bodies the statute lists 7.

A separate restriction applies within 2 years after the termination of service or employment 8 to particular matters the person knows or reasonably should know were actually pending under their official responsibility 9. Section 207 also sets one-year restrictions on certain senior personnel of the executive branch and independent agencies 10.

Under 41 U.S.C. 2104, a former official of a Federal agency may not accept compensation from a contractor as an employee, officer, director or consultant of the contractor within one year after certain service 11; that service includes serving as the program manager, deputy program manager or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractor 12.

A new hire also must not bring information they should not have. 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 13.

Check 2

Which service can trigger the one-year compensation ban in 41 U.S.C. 2104?Program manager, deputy program manager or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractorAny service in the same department, whatever the roleService on any contract, regardless of valueOnly service as a political appointee

Build a written ethics clearance step

An official or former official who does not know whether 41 U.S.C. 2104 would preclude accepting compensation from a particular contractor may request advice from the appropriate agency ethics official before accepting it 14. The request must be in writing, include all relevant information reasonably available, and be dated and signed 15.

For defense contracts, DFARS 252.203-7000 says the contractor shall not knowingly provide compensation to a covered DoD official within 2 years after the official leaves DoD service without first determining that the official has sought and received, or has not received after 30 days of seeking, a written opinion from the appropriate DoD ethics counselor 16. The clause's definition of a covered DoD official includes, among its conditions, service in a general or flag officer position compensated at grade O-7 or above 17. Failure to comply may subject the contractor to rescission of the contract, suspension or debarment 18.

Practice, a hiring step that runs every time: 1. The candidate lists the procurements, programs and contractors they worked on in their last two years of service, with dates and roles. 2. The candidate obtains the agency ethics opinion; the company keeps a copy. 3. Company counsel reviews it and writes a short screen: matters the new hire may not work on, agencies they may not contact, and until when. 4. The hiring manager and the new hire sign the screen. 5. The new hire confirms in writing that they bring no non-public procurement information. 6. Compliance checks the screen at each bid gate.

Questions a board should ask about senior hires from government: Which former officials have we hired in the last two years, and does each have a written ethics opinion on file? What is each person screened from, and until when? Who checks the screens at bid reviews? Have we ever started an employment conversation with someone working on a procurement we were competing in?

Worked example. Executive F retires as a senior program manager and is offered a business development role at Company J. Her ethics opinion identifies two programs she must stay away from and a one-year limit on contacting her former agency. Company J's counsel turns that into a written screen; F leads capture on other customers for her first year and is kept off both programs, and the screen is checked at every bid review.

Check 3

Under DFARS 252.203-7000, what must a contractor determine before knowingly compensating a covered DoD official within 2 years after the official leaves DoD service?That the official has sought and received, or has not received after 30 days of seeking, a written ethics opinionThat the official has retired from the military reserveThat the contracting officer has approved the hireNothing; no check is required

Indented paragraphs are invented worked examples. Tool links open Bids2Bank and need a free account.

Hiring former government officials

By the end you can

It starts before the first conversation

The restrictions to check

Build a written ethics clearance step

Hiring former government officials

By the end you can

It starts before the first conversation

The restrictions to check

Build a written ethics clearance step