Thinking Abount Hiring Former Government Employees?

The Department of Defense is proposing to amend its FAR supplement to require that any company bidding on one of their solicitations certify that all former DoD officials employed by the company are in compliance with post-employment restrictions.

There are several statutory and regulatory restrictions concerning post-government employment for DoD and other Federal employees after leaving Government service. 18 U.S.C. 207 prohibits an individual from representing a contractor to their former agency on particular matters involving specific parties that they handled while working for the Federal Government for defined cooling-off periods that vary according to the former officials involvement and position. 41 U.S.C. 2104 prohibits DoD and other Government acquisition officials from accepting compensation from a defense contractor during a one year cooling-off period if the official performed certain duties at DoD involving the contractor and a contract valued in excess of $10 million. Section 847 requires that senior DoD officials who have been personally and substantially involved in contracts over $10 million request a written post-employment ethics opinion before receiving compensation from a contractor.

These Statutes were implemented into the FAR and DFARS (Federal Acquisition Regulation and DoD FAR Supplement, respectively) at FAR 3.104 and DFARS 203.104. However in 2008, the GAO reported that government contractors had under reported by half, the number of former DoD officials they had employed and that some of those had performed services under the same contract for which they had prior program responsibility.

To remedy this, DoD is now proposing to require that all offerors must submit representations at the time of contract award to the effect that all former DoD officials are in compliance with post-employment restrictions in FAR, DFARS, and the aforementioned Statutes. Based on the GAO study, this could affect about 7,500 "covered" officials leaving the Government and going to work for defense contractors each year. A third of these go to work for the top 50 defense contractors, about 50 percent end up a "small business" with the remainder scattered around at other contractors.

Under the proposed regulation, companies are not allowed to submit proposals or make offers if they cannot make a representation similar to the following:

To the best of our knowledge and belief, all covered DoD officials employed by or otherwise receiving compensation from the offeror are presently in compliance with DFARS ......