§ 423. — Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC423]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 7--OFFICE OF FEDERAL PROCUREMENT POLICY
Sec. 423. Restrictions on disclosing and obtaining contractor
bid or proposal information or source selection information
(a) Prohibition on disclosing procurement information
(1) A person described in paragraph (2) shall 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. In
the case of an employee of a private sector organization assigned to an
agency under chapter 37 of title 5, in addition to the restriction in
the preceding sentence, such employee shall not, other than as provided
by law, knowingly disclose contractor bid or proposal information or
source selection information during the three-year period after the end
of the assignment of such employee.
(2) Paragraph (1) applies to any person who--
(A) 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
(B) 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
A person shall 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 of procurement officers when contacted by offerors
regarding non-Federal employment
(1) If an agency official who is 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 a bidder or offeror in that Federal agency procurement
regarding possible non-Federal employment for that official, the
official shall--
(A) promptly report the contact in writing to the official's
supervisor and to the designated agency ethics official (or
designee) of the agency in which the official is employed; and
(B)(i) reject the possibility of non-Federal employment; or
(ii) disqualify himself or herself from further personal and
substantial participation in that Federal agency procurement until
such time as the agency has authorized the official to resume
participation in such procurement, in accordance with the
requirements of section 208 of title 18 and applicable agency
regulations on the grounds that--
(I) the person is no longer a bidder or offeror in that
Federal agency procurement; or
(II) all discussions with the bidder or offeror regarding
possible non-Federal employment have terminated without an
agreement or arrangement for employment.
(2) Each report required by this subsection shall be retained by the
agency for not less than two years following the submission of the
report. All such reports shall be made available to the public upon
request, except that any part of a report that is exempt from the
disclosure requirements of section 552 of title 5 under subsection
(b)(1) of such section may be withheld from disclosure to the public.
(3) An official who knowingly fails to comply with the requirements
of this subsection shall be subject to the penalties and administrative
actions set forth in subsection (e) of this section.
(4) A bidder or offeror who engages in employment discussions with
an official who is subject to the restrictions of this subsection,
knowing that the official has not complied with subparagraph (A) or (B)
of paragraph (1), shall be subject to the penalties and administrative
actions set forth in subsection (e) of this section.
(d) Prohibition on former official's acceptance of compensation from
contractor
(1) 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 a period of one year after such
former official--
(A) 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 the 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;
(B) 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
(C) personally made for the Federal agency--
(i) 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;
(ii) a decision to establish overhead or other rates
applicable to a contract or contracts for that contractor that
are valued in excess of $10,000,000;
(iii) a decision to approve issuance of a contract payment
or payments in excess of $10,000,000 to that contractor; or
(iv) a decision to pay or settle a claim in excess of
$10,000,000 with that contractor.
(2) Nothing in paragraph (1) 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 subparagraph (A), (B), or
(C) of such paragraph.
(3) A former official who knowingly accepts compensation in
violation of this subsection shall be subject to penalties and
administrative actions as set forth in subsection (e) of this section.
(4) A contractor who provides compensation to a former official
knowing that such compensation is accepted by the former official in
violation of this subsection shall be subject to penalties and
administrative actions as set forth in subsection (e) of this section.
(5) Regulations implementing this subsection shall include
procedures for an official or former official of a Federal agency to
request advice from the appropriate designated agency ethics official
regarding whether the official or former official is or would be
precluded by this subsection from accepting compensation from a
particular contractor.
(e) Penalties and administrative actions
(1) Criminal penalties
Whoever engages in conduct constituting a violation of
subsection (a) or (b) of this section for the purpose of either--
(A) exchanging the information covered by such subsection
for anything of value, or
(B) obtaining or giving anyone a competitive advantage in
the award of a Federal agency procurement contract,
shall be imprisoned for not more than 5 years or fined as provided
under title 18, or both.
(2) Civil penalties
The Attorney General may bring a civil action in an appropriate
United States district court against any person who engages in
conduct constituting a violation of subsection (a), (b), (c), or (d)
of this section. Upon proof of such conduct by a preponderance of
the evidence, the person is subject to a civil penalty. An
individual who engages in such conduct is subject to a civil penalty
of not more than $50,000 for each violation plus twice the amount of
compensation which the individual received or offered for the
prohibited conduct. An organization that engages in such conduct is
subject to a civil penalty of not more than $500,000 for each
violation plus twice the amount of compensation which the
organization received or offered for the prohibited conduct.
(3) Administrative actions
(A) If a Federal agency receives information that a contractor
or a person has engaged in conduct constituting a violation of
subsection (a), (b), (c), or (d) of this section, the Federal agency
shall consider taking one or more of the following actions, as
appropriate:
(i) Cancellation of the Federal agency procurement, if a
contract has not yet been awarded.
(ii) Rescission of a contract with respect to which--
(I) the contractor or someone acting for the contractor
has been convicted for an offense punishable under paragraph
(1), or
(II) the head of the agency that awarded the contract
has determined, based upon a preponderance of the evidence,
that the contractor or someone acting for the contractor has
engaged in conduct constituting such an offense.
(iii) Initiation of suspension or debarment proceedings for
the protection of the Government in accordance with procedures
in the Federal Acquisition Regulation.
(iv) Initiation of adverse personnel action, pursuant to the
procedures in chapter 75 of title 5 or other applicable law or
regulation.
(B) If a Federal agency rescinds a contract pursuant to
subparagraph (A)(ii), the United States is entitled to recover, in
addition to any penalty prescribed by law, the amount expended under
the contract.
(C) For purposes of any suspension or debarment proceedings
initiated pursuant to subparagraph (A)(iii), engaging in conduct
constituting an offense under subsection (a), (b), (c), or (d) of
this section affects the present responsibility of a Government
contractor or subcontractor.
(f) Definitions
As used in this section:
(1) The term ``contractor bid or proposal information'' means
any of the following information submitted to a Federal agency as
part of or in connection with a bid or proposal to enter into a
Federal agency procurement contract, if that information has not
been previously made available to the public or disclosed publicly:
(A) Cost or pricing data (as defined by section 2306a(h) of
title 10, with respect to procurements subject to that section,
and section 254b(h) of this title, with respect to procurements
subject to that section).
(B) Indirect costs and direct labor rates.
(C) Proprietary information about manufacturing processes,
operations, or techniques marked by the contractor in accordance
with applicable law or regulation.
(D) Information marked by the contractor as ``contractor bid
or proposal information'', in accordance with applicable law or
regulation.
(2) The term ``source selection information'' means any of the
following information prepared for use by a Federal agency for the
purpose of evaluating a bid or proposal to enter into a Federal
agency procurement contract, if that information has not been
previously made available to the public or disclosed publicly:
(A) Bid prices submitted in response to a Federal agency
solicitation for sealed bids, or lists of those bid prices
before public bid opening.
(B) Proposed costs or prices submitted in response to a
Federal agency solicitation, or lists of those proposed costs or
prices.
(C) Source selection plans.
(D) Technical evaluation plans.
(E) Technical evaluations of proposals.
(F) Cost or price evaluations of proposals.
(G) Competitive range determinations that identify proposals
that have a reasonable chance of being selected for award of a
contract.
(H) Rankings of bids, proposals, or competitors.
(I) The reports and evaluations of source selection panels,
boards, or advisory councils.
(J) Other information marked as ``source selection
information'' based on a case-by-case determination by the head
of the agency, his designee, or the contracting officer that its
disclosure would jeopardize the integrity or successful
completion of the Federal agency procurement to which the
information relates.
(3) The term ``Federal agency'' has the meaning provided such
term in section 102 of title 40.
(4) The term ``Federal agency procurement'' means the
acquisition (by using competitive procedures and awarding a
contract) of goods or services (including construction) from non-
Federal sources by a Federal agency using appropriated funds.
(5) The term ``contracting officer'' means a person who, by
appointment in accordance with applicable regulations, has the
authority to enter into a Federal agency procurement contract on
behalf of the Government and to make determinations and findings
with respect to such a contract.
(6) The term ``protest'' means a written objection by an
interested party to the award or proposed award of a Federal agency
procurement contract, pursuant to subchapter V of chapter 35 of
title 31.
(7) The term ``official'' means the following:
(A) An officer, as defined in section 2104 of title 5.
(B) An employee, as defined in section 2105 of title 5.
(C) A member of the uniformed services, as defined in
section 2101(3) of title 5.
(g) Limitation on protests
No person may file a protest against the award or proposed award of
a Federal agency procurement contract alleging a violation of subsection
(a), (b), (c), or (d) of this section, nor may the Comptroller General
of the United States consider such an allegation in deciding a protest,
unless that person reported to the Federal agency responsible for the
procurement, no later than 14 days after the person first discovered the
possible violation, the information that the person believed constitutes
evidence of the offense.
(h) Savings provisions
This section does not--
(1) restrict the disclosure of information to, or its receipt
by, any person or class of persons authorized, in accordance with
applicable agency regulations or procedures, to receive that
information;
(2) restrict a contractor from disclosing its own bid or
proposal information or the recipient from receiving that
information;
(3) restrict the disclosure or receipt of information relating
to a Federal agency procurement after it has been canceled by the
Federal agency before contract award unless the Federal agency plans
to resume the procurement;
(4) prohibit individual meetings between a Federal agency
official and an offeror or potential offeror for, or a recipient of,
a contract or subcontract under a Federal agency procurement,
provided that unauthorized disclosure or receipt of contractor bid
or proposal information or source selection information does not
occur;
(5) authorize the withholding of information from, nor restrict
its receipt by, Congress, a committee or subcommittee of Congress,
the Comptroller General, a Federal agency, or an inspector general
of a Federal agency;
(6) authorize the withholding of information from, nor restrict
its receipt by, the Comptroller General of the United States in the
course of a protest against the award or proposed award of a Federal
agency procurement contract; or
(7) limit the applicability of any requirements, sanctions,
contract penalties, and remedies established under any other law or
regulation.
(Pub. L. 93-400, Sec. 27, as added Pub. L. 100-679, Sec. 6(a), Nov. 17,
1988, 102 Stat. 4063; amended Pub. L. 101-189, div. A, title VIII,
Sec. 814(a)-(d)(1), Nov. 29, 1989, 103 Stat. 1495-1498; Pub. L. 101-510,
div. A, title XIV, Sec. 1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub.
L. 102-25, title VII, Sec. 705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L.
103-355, title VIII, Sec. 8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub.
L. 104-106, div. D, title XLIII, Sec. 4304(a), Feb. 10, 1996, 110 Stat.
659; Pub. L. 107-347, title II, Sec. 209(d)(4), Dec. 17, 2002, 116 Stat.
2930.)
Codification
``Section 102 of title 40'' substituted in subsec. (f)(3) for
``section 3 of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 472)'' on authority of Pub. L. 107-217, Sec. 5(c), Aug.
21, 2002, 116 Stat. 1303, the first section of which enacted Title 40,
Public Buildings, Property, and Works.
Amendments
2002--Subsec. (a)(1). Pub. L. 107-347 inserted at end ``In the case
of an employee of a private sector organization assigned to an agency
under chapter 37 of title 5, in addition to the restriction in the
preceding sentence, such employee shall not, other than as provided by
law, knowingly disclose contractor bid or proposal information or source
selection information during the three-year period after the end of the
assignment of such employee.''
1996--Pub. L. 104-106 amended section generally, substituting
subsecs. (a) to (h) relating to restrictions on disclosing and obtaining
contractor bid or proposal information and source selection information
for former subsecs. (a) to (p) relating to procurement integrity.
1994--Subsec. (e)(1)(B). Pub. L. 103-355 inserted ``, except in the
case of a contract for the procurement of commercial items,'' after
``certifies in writing to such contracting officer'' in introductory
provisions.
1991--Subsec. (p)(8). Pub. L. 102-25 substituted ``has the meaning
given such term by section 109(3) of the Ethics in Government Act of
1978 (5 U.S.C. App.).'' for ``has the same meaning as the term
`designated agency official' in section 209(10) of the Ethics in
Government Act of 1978 (92 Stat. 1850; 5 U.S.C. App.).''
1990--Subsec. (f)(3)(D), (F). Pub. L. 101-510 redesignated subpar.
(D), defining term ``civil service'', as (F).
1989--Subsecs. (a)(1), (b)(1). Pub. L. 101-189, Sec. 814(a)(1)(A),
inserted ``, except as provided in subsection (c) of this section''
before semicolon at end.
Subsec. (c). Pub. L. 101-189, Sec. 814(a)(1)(C), added subsec. (c).
Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated
subsec. (c) as (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated
subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1)(A)(i), (B)(ii), (2)(A), (3)(A). Pub. L. 101-189,
Sec. 814(c)(1)(A)-(D), substituted ``(d), or (f)'' for ``(c), or (e)''.
Subsec. (e)(7)(B)(ii). Pub. L. 101-189, Sec. 814(c)(1)(E),
substituted ``subsection (o)'' for ``subsection (m)''.
Subsec. (f). Pub. L. 101-189, Sec. 814(a)(2)(B), substituted
``Restrictions resulting from procurement activities of procurement
officials'' for ``Restrictions on Government officials and employees''
as heading, and ``(1) No individual who, while serving as an officer or
employee of the Government or member of the Armed Forces, was a
procurement official with respect to a particular procurement may
knowingly--'' for ``No Government official or employee, civilian, or
military, who has participated personally and substantially in the
conduct of any Federal agency procurement or who has personally reviewed
and approved the award, modification, or extension of any contract for
such procurement shall--''.
Pub. L. 101-189, Sec. 814(a)(2)(A), redesignated pars. (1) and (2)
as subpars. (A) and (B), respectively.
Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated subsec. (e) as
(f). Former subsec. (f) redesignated (g).
Subsec. (f)(2). Pub. L. 101-189, Sec. 814(a)(2)(C), added par. (2).
Subsec. (f)(3). Pub. L. 101-189, Sec. 814(d)(1), added par. (3).
Subsec. (g). Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated
subsec. (f) as (g). Former subsec. (g) redesignated (h).
Subsec. (g)(1). Pub. L. 101-189, Sec. 814(c)(2), substituted
``subsection (o)'' for ``subsection (m)''.
Subsec. (h). Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated
subsec. (g) as (h). Former subsec. (h) redesignated (i).
Subsec. (h)(1). Pub. L. 101-189, Sec. 814(c)(3)(A), substituted
``subsection (e)'' for ``subsection (d)''.
Subsec. (h)(2). Pub. L. 101-189, Sec. 814(c)(3)(B), substituted
``(b) or (d)'' for ``(b) or (c)''.
Subsec. (h)(3). Pub. L. 101-189, Sec. 814(c)(3)(C), substituted
``(i) and (j)'' for ``(h) and (i)''.
Subsec. (i). Pub. L. 101-189, Sec. 814(c)(4), substituted ``(d), or
(f)'' for ``(c), or (e)''.
Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated subsec. (h) as
(i). Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 101-189, Sec. 814(a)(1)(B)(ii), redesignated
subsec. (i) as (j). Former subsec. (j) redesignated (l).
Subsec. (j)(1). Pub. L. 101-189, Sec. 814(c)(5), substituted
``subsection (p)'' for ``subsection (n)'' and ``subsection (o)'' for
``subsection (m)''.
Subsec. (k). Pub. L. 101-189, Sec. 814(a)(3), added subsec. (k).
Former subsec. (k) redesignated (m).
Subsec. (l). Pub. L. 101-189, Sec. 814(a)(1)(B)(i), redesignated
subsec. (j) as (l). Former subsec. (l) redesignated (n).
Subsec. (l)(1). Pub. L. 101-189, Sec. 814(c)(6)(A), substituted
``subsections (b), (c), and (e)'' for ``subsection (b)''.
Subsec. (l)(2). Pub. L. 101-189, Sec. 814(c)(6)(B), substituted
``subsections (b), (c), and (e)'' for ``subsection (b)'' and ``(d), or
(f)'' for ``(c), or (e)''.
Subsecs. (m), (n). Pub. L. 101-189, Sec. 814(a)(1)(B)(i),
redesignated subsecs. (k) and (l) as (m) and (n), respectively. Former
subsecs. (m) and (n) redesignated (o) and (p), respectively.
Subsec. (o). Pub. L. 101-189, Sec. 814(a)(4), amended subsec. (o)
generally. Prior to amendment, subsec. (o) read as follows:
``Government-wide regulations and guidelines deemed appropriate to carry
out this section shall be issued in the Federal Acquisition Regulation
within 180 days after November 17, 1988.''
Pub. L. 101-189, Sec. 814(a)(1)(B)(i), redesignated subsec. (m) as
(o).
Subsec. (p). Pub. L. 101-189, Sec. 814(a)(1)(B)(i), redesignated
subsec. (n) as (p).
Subsec. (p)(1). Pub. L. 101-189, Sec. 814(b)(1), substituted ``on
the earliest specific date, as determined under implementing
regulations, on which an authorized official orders or requests an
action described in clauses (i)-(viii) of paragraph (3)(A),'' for ``with
the development, preparation, and issuance of a procurement
solicitation,''.
Subsec. (p)(3)(A). Pub. L. 101-189, Sec. 814(b)(2), added subpar.
(A) and struck out former subpar. (A) which read as follows: ``The term
`procurement official' means any civilian or military official or
employee of an agency who has participated personally and substantially
in the conduct of the agency procurement concerned, including all
officials and employees who are responsible for reviewing or approving
the procurement, as further defined by applicable implementing
regulations.''
Subsec. (p)(8). Pub. L. 101-189, Sec. 814(b)(3), added par. (8).
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-347 effective 120 days after Dec. 17, 2002,
see section 402(a) of Pub. L. 107-347, set out as an Effective Date note
under section 3601 of Title 44, Public Printing and Documents.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of this title.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of this title.
Effective Date
Section 6(b) of Pub. L. 100-679, as amended by Pub. L. 101-28,
Sec. 1, May 15, 1989, 103 Stat. 57, provided that: ``The amendment made
by subsection (a) [enacting this section] shall take effect July 16,
1989.''
Regulations
Section 814(e) of Pub. L. 101-189 provided that: ``Not later than 90
days after the date of the enactment of this section [Nov. 29, 1989],
regulations implementing the amendments made by this section to the
provisions of section 27 of the Office of Federal Procurement Policy Act
(41 U.S.C. 423) shall be issued in accordance with sections 6 and 25 of
such Act (41 U.S.C. 405, 421), after coordination with the Director of
the Office of Government Ethics.''
Clarification of Frequency of Certification by Employees and Contractors
Section 815(b) of Pub. L. 101-510 provided that: ``Not later than 30
days after the date of the enactment of this Act [Nov. 5, 1990], the
regulations implementing section 27(e)(1)(B) of the Office of Federal
Procurement Policy Act (41 U.S.C. 423(e)(1)(B)) shall be revised to
ensure that a contractor is required to obtain from each officer,
employee, agent, representative, and consultant of the contractor only
one certification (as described in clauses (i) and (ii) of that section)
during the person's employment or association with the contractor and
that such certification shall be made at the earliest possible date
after the person begins his or her employment or association with the
contractor.''
Suspension of Effect of Section
Section 815(a)(1) of Pub. L. 101-510 provided that subsection (f) of
this section shall have no force or effect during the period beginning
on Dec. 1, 1990, and ending on May 31, 1991.
Pub. L. 101-194, title V, Sec. 507(1), Nov. 30, 1989, 103 Stat.
1759, provided that the provisions of this section shall have no force
or effect during the period beginning Dec. 1, 1989, and ending one year
after such date.
Section Referred to in Other Sections
This section is referred to in title 5 sections 3374, 3704; title 15
sections 637, 657a; title 22 section 3861; title 42 sections 1396a,
1396u-2; title 43 section 1475a; title 49 section 40110.
