41 USC 423(a): Contractor bid or proposal information or evaluations

          
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.