41 U.S.C. § 2303 (PUBLIC CONTRACTS)
§ 2303. Ethics safeguards related to contractor conflicts of interest
(a) Definition.—
In this section, the term “relevant acquisition function” means an acquisition function closely associated with inherently governmental functions.
(b) Policy on Personal Conflicts of Interest by Contractor Employees.—
(1) Development and issuance of policy.—
The Administrator shall develop and issue a standard policy to prevent personal conflicts of interest by contractor employees performing relevant acquisition functions (including the development, award, and administration of Federal Government contracts) for or on behalf of a Federal agency or department.
(2) Elements of policy.—
The policy shall—
(A) define “personal conflict of interest” as it relates to contractor employees performing relevant acquisition functions; and
(B) require each contractor whose employees perform relevant acquisition functions to—
(i) identify and prevent personal conflicts of interest for the employees;
(ii) prohibit contractor employees who have access to non-public government information obtained while performing relevant acquisition functions from using the information for personal gain;
(iii) report any personal conflict-of-interest violation by an employee to the applicable contracting officer or contracting officer’s representative as soon as it is identified;
(iv) maintain effective oversight to verify compliance with personal conflict-of-interest safeguards;
(v) have procedures in place to screen for potential conflicts of interest for all employees performing relevant acquisition functions; and
(vi) take appropriate disciplinary action in the case of employees who fail to comply with policies established pursuant to this section.
(3) Contract clause.—
(A) Contents.—
The Administrator shall develop a personal conflicts-of-interest clause or a set of clauses for inclusion in solicitations and contracts (and task or delivery orders) for the performance of relevant acquisition functions that sets forth—
(i) the personal conflicts-of-interest policy developed under this subsection; and
(ii) the contractor’s responsibilities under the policy.
(B) Effective date.—
Subparagraph (A) shall take effect 300 days after October 14, 2008, and shall apply to—
(i) contracts entered into on or after that effective date; and
(ii) task or delivery orders awarded on or after that effective date, regardless of whether the contracts pursuant to which the task or delivery orders are awarded are entered before, on, or after October 14, 2008.
(4) Applicability.—
(A) Contracts in excess of the simplified acquisition threshold.—
This subsection shall apply to any contract for an amount in excess of the simplified acquisition threshold (as defined in section 134 of this title) if the contract is for the performance of relevant acquisition functions.
(B) Partial applicability.—
If only a portion of a contract described in subparagraph (A) is for the performance of relevant acquisition functions, then this subsection applies only to that portion of the contract.
(c) Best Practices.—
The Administrator shall, in consultation with the Director of the Office of Government Ethics, develop and maintain a repository of best practices relating to the prevention and mitigation of organizational and personal conflicts of interest in Federal contracting.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3735.)
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
2303(a)
no source.
2303(b), (c)
41:405c(a), (c).
Pub. L. 110–417, [div. A], title VIII, § 841(a), (c), Oct. 14, 2008, 122 Stat. 4537, 4539.
In this section, the words “relevant acquisition functions” are substituted for “acquisition functions closely associated with inherently governmental functions” because of subsection (a).
In subsection (b), the words “Not later than 270 days after the date of the enactment of this Act” are omitted because of section 6(f) of the bill.
In subsection (b)(4)(A), the words “Except as provided in subparagraph (B)” are omitted as unnecessary.
heading: Statutory Notes and Related Subsidiaries
heading: Preventing Organizational Conflicts of Interest in Federal Acquisition
text: Pub. L. 117–324, Dec. 27, 2022, 136 Stat. 4439, provided that:
“SECTION 1. SHORT TITLE.
“This Act may be cited as the ‘Preventing Organizational Conflicts of Interest in Federal Acquisition Act’.
“SEC. 2. PREVENTING ORGANIZATIONAL CONFLICTS OF INTEREST IN FEDERAL ACQUISITION.
“(a) In General.—
Not later than 18 months after the date of the enactment of this Act [Dec. 27, 2022], the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation—
“(1) to provide and update—
“(A) definitions related to specific types of organizational conflicts of interest, including unequal access to information, impaired objectivity, and biased ground rules;
“(B) definitions, guidance, and illustrative examples related to relationships of contractors with public, private, domestic, and foreign entities that may cause contract support to be subject to potential organizational conflicts of interest, including undue influence; and
“(C) illustrative examples of situations related to the potential organizational conflicts of interest identified under this paragraph, including an example of the awarding by a Federal regulatory agency of a contract for consulting services to a contractor if employees of the contractor performing work under such contract are permitted by the contractor to simultaneously perform work under a contract for a private sector client under the regulatory purview of such agency;
“(2) to provide executive agencies with solicitation provisions and contract clauses to avoid or mitigate organizational conflicts of interest, for agency use as needed, that require contractors to disclose information relevant to potential organizational conflicts of interest and limit future contracting with respect to potential conflicts of interest with the work to be performed under awarded contracts;
“(3) to allow executive agencies to tailor such solicitation provisions and contract clauses as necessary to address risks associated with conflicts of interest and other considerations that may be unique to the executive agency;
“(4) to require executive agencies—
“(A) to establish or update as needed agency conflict of interest procedures to implement the revisions to the Federal Acquisition Regulation made under this section; and
“(B) to periodically assess and update such procedures as needed to address agency-specific conflict of interest issues; and
“(5) to update the procedures set forth in section 9.506 of the Federal Acquisition Regulation to permit contracting officers to take into consideration professional standards and procedures to prevent organizational conflicts of interest to which an offeror or contractor is subject.
“(b) Executive Agency Defined.—
In this section, the term ‘executive agency’ has the meaning given the term in section 133 of title 41, United States Code.”
heading: Deadline for Issuance of Standard Policy
text: Pub. L. 111–350, § 6(f)(1), Jan. 4, 2011, 124 Stat. 3854, provided that: “The requirement in section 2303(b)(1) of title 41, United States Code, to issue a policy shall be done not later than 270 days after October 14, 2008.”
heading: Review of Federal Acquisition Regulation Relating to Conflicts of Interest
text: Pub. L. 110–417, [div. A], title VIII, § 841(b), Oct. 14, 2008, 122 Stat. 4539, provided that:
“(1) Review.—
Not later than 12 months after the date of the enactment of this Act [Oct. 14, 2008], the Administrator for Federal Procurement Policy, in consultation with the Director of the Office of Government Ethics, shall review the Federal Acquisition Regulation to—
“(A) identify contracting methods, types and services that raise heightened concerns for potential personal and organizational conflicts of interest; and
“(B) determine whether revisions to the Federal Acquisition Regulation are necessary to—
“(i) address personal conflicts of interest by contractor employees with respect to functions other than those described in subsection (a) [now 41 U.S.C. 2303(b)]; or
“(ii) achieve sufficiently rigorous, comprehensive, and uniform government-wide policies to prevent and mitigate organizational conflicts of interest in Federal contracting.
“(2) Regulatory revisions.—
If the Administrator determines pursuant to the review under paragraph (1)(B) that revisions to the Federal Acquisition Regulation are necessary, the Administrator shall work with the Federal Acquisition Regulatory Council to prescribe appropriate revisions to the regulations, including the development of appropriate contract clauses.
“(3) Report.—
Not later than March 1, 2010, the Administrator shall submit to the Committees on Armed Services of the Senate and House of Representatives, the Committee on Homeland Security and Governmental Affairs in the Senate, and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives a report setting forth such findings and determinations under subparagraphs (A) and (B) of paragraph (1), together with an assessment of any revisions to the Federal Acquisition Regulation that may be necessary.”