41 U.S.C. § 423 : US Code - Section 423: Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information

Search 41 U.S.C. § 423 : US Code - Section 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.