Responsive Document - CREW: DOD: Regarding Ethics Opinions Database: 5/22/2013 - Pp121-180 Crew V DoD May 2013 Release

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Auachllleit'Wl:
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.1. Oondwtl.cslrithg in. Do
2. Oowmmont Ethb Queatioonul'e
3, Disqwalificlrtian ldttt dated 4, A.pril 2008 0eUCf dtd9 April 2007 _tready M file)
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CREW v. DOD MAY2013 RELEASE 000121
Conduet' IltMdtJl!IlJ 'U. on.y..., Ball
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poaitMI!lIt. or _If""f at OIA .MhI:t O'W\'!t $lO.'b SJ*iftMlb'. Iltn
wUt ..
i, SCJt.... atifMltQlloUJ.e:
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tor .. '
til. S'eMsIi II mm'Illato1 t1Je;SQ-. I *"..,(SS1m)-M' Mlet :l10 mQlJon.IM'.
tllfte; 'tholflI,...,. i5l Mleeetd b' 'wed. fj IMt'dIIt
Iv. ......lIlII1h64hWoh tillllnc'W. arleclhtirte.J" !IHrn mililotli,.at tHlib die
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'rio SmwIIthe Oft. $10 mIfUon,Of
"It. CW6r.$(O ...mem
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;. Demicln o\W'IQ mJDioll;
IU,. DclMfoD U) .qlda JMdiftcdoll OWf 'IG mill_ of,p $10 t;liltfft 0'.
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Y. DorisiQlt ID e&UlbtlJh otaIer mta Wt/cHkllO a or C!lJACmCIiI ,...., ,1.""_0WI.f11-9
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vi. i!iIullDor,... .. SIO..UOofttOt
PIll ...6 f.:O!.thcC or-1m.". $IO.ulioll.
eoot.......ttO:mllltea. Wlaher _ aU'"' SlOmtlJtOlt" td'lo IlllllC
,WIld. (FAR ;)" I04-1) Ftlfcump." 11 a flI\WUdN. lOt IIM'Q dtad'O in .",.01..$It_
ptlllfl6fIJOf mKi..CIftO ur.. .....rortNteoliltacld...'I1Je
caIIIMt It af.b!rco1drllet ""-IO&.. lIINlUlU I!IIIbrt$JOmDum, .. f;ft. i$
.....,.".1or...'S".,lion..mnatnoneoh. '-"'0' dill>
.......,..to -HI,. Mil if Ilre mcdftW aWl'l'd tualllllOiOO....
BuSIO.Rlln.MVQ, ih ....iIl vtlue,of:fIIlft'M....ikI ....i,m dlle!MaDllfta
ilIia'Wlf$lOomlJliOft. (pM 3.JOt--Ll
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'8 Apdt .2.008
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3S Hamilton $..
'HW'lsoomAPB MA
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1. lulNduetkr.... Thltl ....i' ptO'IWudtn retI[DIRIO)'OW' meJ'lt (or1ft :lulboritati'VCl
of .. flJltJlicaMn ofS'NUOIt. 423 dTidc 41. 'TJnilJd s.u to )lOUt .service M
Mofftd:dof the of Onder lhis SIan. 'Desi,anoted Apncy Ethles OmdJds
aDd tbc\t halVe fbe lcpllU1thorityto re_,. mllflOritati.....", opinions repUnJ the
of the.otute to your of fmf.lt <:OI\C1'8CDOnl. As
below. ill it '. 0 nlQII that 41 d.OC8l'1M ruricliOOJ 0'1 ')I$Ir
o.pflen$ wttb b)(6) the 18 tJ.s..c. 1207 ban mq.appJ:), i. )'OW
K.ccp 1ft miud... thislaklrr I. _. op.lftkm ae to tho ftpp'ficdi.Oft of tho 11
U,.s..C. i2f)1 repraerlItatioo
2. 'Tho 41. u.s.e '1)ne..y.. B8Ill'
a. a-....". Under 41 V,SIC,. 42J(d.:"
employea ltJOproblhlted from acee:ptilf.\8 oompcft8tkm:from 8 contntetoc ror _porlod ofone
)!mU' if'tboy seted in celtaitl poritic:ms. or ..... deeiaiuml 'in wilh' aeMIftIet
aWilQl(ltD 'INs MtM
This. baR can app\f to military of1icen, enliSl'ed employees,. and spedal
GoyemmeN 6111t)fo,.,.. (PAR. i,ll)4..11 rlarn . OM .,r,-sant-rjf
or lepatate.tfMm. thflOO'Wl'AlDC11t" Als'!,). id1e balI. appl, whih both
.... awuded (i.8., sc1e sou.-) COtll1w::tl.
WAR.. 3,.104-3((.)(1),] Auad:mient 1to 1td$1etterrJsrrl, lhe IIfUeh the
Cll1Jpensttion b;.ln uri...,
h. W_" pro.ldIIhed 'by _ ..,.,' 11an..1'hc OftIC-)'ftI' _ uppJiet
compensation ..anemplO,pel' ofIcet. cIJrcetot,or e.on..-It(YIt of die
t'lIea'lB 'WlI&fSt ........ boftomria. commtMO$, fee8. (flld.,
otherfo.nl1,of compenation. ..4eftd.
Compensation. is i"',rBctlliy'pnwldI!d! ifit is 'Plid Ill) .Ill midI)' otber'dun diefndfv.hSt.JI,l,
'J!I)ClficeI1, iL'l KClhan3e for :P1OYkIcd by the illldlvidu8f. (FAa 3.1.04-1):
.,
c. Applk.adon In JMII' You have echedu;kd avedrommt d.ubH)f land
you intctldiupon startfq,lermllal reave ,on b)(6) B' , IOpon IJllemform.arion YOU
"iidbtill" .. . hive,' b)(6) 'Intf\eKb)(6)
b)(6) sifXlC )(6) As
b)(6) " ' IRS Many primcr;oRttfWroR (but not
b)(6) in )l0Uf J6, ,I 0 ' instl'Uf.1tld )'OU rbe 'conflict of
ntete$tptoviuioml of 18 208(a) and JM MCGiVt -I cO,p,Y of the dJtquoUfication: ktter
)'tlUf $Uper'riwr Qpp.t1'\'ed 009 Afril 2007 '._I. tho updD$Cd 0Ile, approved on 4 April '2008.
It is my oplmon mat. 'baed' upon lbc, infonnation,)\'1U have provided, that you.are: Rot resLriCled
!.tDr41, U.S.Co f 423 from ecceptmgt.OmJ**ltlon )(6) IHowe.wr,mi, explOded
upon iiR para,gntpb 4, if your lead to ute8iR!' to start wiUl
any CQlttl'Kfor durinJ y<JUf potfod, BdcUtionaJ Etbtai CoInaelorMlYic.e and
dtmdd be obtaiaed. (
3. 1"Ite'18UJI.Ct:7M.,.....lationBtlJLfI YOW' p.-v:i(R4$ dtitlie$ .. B,PMgrImMlmJ.ler
may tripotbet under whol ,ill CiOR'ImOftI'y to
as 'li'N', bin.
a. LMm.e rvpr.-iIdoti Sec:dw20'7:($:() llfTitto pmkles cm.t3n
Eucuthre Dranell. oftlcet' or era.ret who bas, jn: his. oflieial cllpRity, panicipaW pel!lOflQlly
. and in a paltirvl,it mucIC", mc:lwfR,8 II Oovcmme.nt ,contraCt,. whleh lnvdved a
specifte pltty. or at tho lime ofIUICh pricipltion. mlll;Y nol, at any tiQ.'le: dt6rwAfter,
knowinpy '111\48ke 11ft)' commute8don to Of m)".cer. oremploye.e of1M
United SI14a orlhoDiaMtt ofCGlumbitl. widllbe intent ro inRutnca auda offiCGf or'employee, ,
in ronHCtion with' stith Gowmmont COIltract' other particular mer, on be.ha.:Jfof any petIOO
other lh&f;h me Untied Ie1>1ttriofCoIumtWt. ThJlm Gown, as Ihe uOfed.
l'CptMmtBIion ban.
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as it IppHN to the ti'the pM'ticular matter. 1\0 t8rpt of Ihi5 .
ptOviaioo il the fOfttler. employee who participateS hi .. ;__wnlle by the
G.o\'CmmcM.nd who lat sid.es"br another On tbt ,$11M maner'
'betor.o the 'lW1ed lIpon Ihe, l"f.on.nalion yOU have Provi.
'with Q dehM; eonmuclOr: may th.' ,same illt whh;k }IOU
Dd. 'whU' a:nr.tng IS an of&cet ill the Air.Pome. IfSOt the Ufedme
bn mR11PP'1y for rhe-lifelme oftit. paltic.u.lar maJJter. Pol)'OUr the
term "pw:tict.tfur matter' would itkilsde ;&oyin_ipOOn, applica..kftn. NqUOlt for a rulina: or
detetmil'letU, mlemukln.... co1ltnl.C4 coatroW$lYt oJ..... ,"UI8lmit UJe&t. orjudittitU, or
dhot p.t.aeeedtn,. jll detennmiq whether two N" ..ioa$ til pBftf:Jt'thlL'l8lne
OM..,.d CDfIeidcr.all of litne
and the OXted CO which the -..ltmi Involve ClIo &8mebllllic f8ds or ud 'lite II.lOIe or ""Iatrd
ptmi
b. Two"year ,....ttoa bMt.. HI U.S.C. 1201(a)(2)imJ.lil*$ similar OOSMctiOM em un
!M;eouth'c BnmQh offloeroremployCIe who_aGowmment eontnlC:t'(I' 0Iher panicular'nJaUW
actually pending undar hli offtdallClpoasibUilydurinl thoono-yc.ar poriod bcfocu t!Jc
Iei'n'1iUlioo. (]f his GOVetMMnl wbidh 'Im'Ol!Yed 1 pmy or p;utla at_d. it
was so pmdir\8. 'Thoc *meti. (l1U.S.C. 107(1)(2. J8. fortw!O yen del'tamimld_ 01
dle t)'q)1o,ut:, ..Qfftt:I,uI, J'elI,ponalhl.lityM 1.8 iii the direct
administnthv or Ol*'il"in. ,iWIloIlty, In ....u_orfiBai.
Otwith iII\d, flit. persona"y or1NouF to dfStlpplDw. or ,
odtcrwille diJecl OOvomdWIl: action. Based upon che )'011 bave
wifl\ I contnllCeot .......yocn.cem the $ante pm1ieulllif mttIel(ll) whle'h W8!l
pen.dtng under )l'Our officlaf J.'05POOsibflity while seniq os mficeT i11l the Ab' Poroe.
Arwtdiagty. 1" rcp....tition ban lM.y apply.
C. WMt h Pl'lJl6t1:ed Wldot t...ttme........ It fhould be
mMCd that, if 18' U.S.C. f 20'1 does n.at prohibit )IO\I"employmenr by 0
dcfMse it ilWy IlJlritiS commwtktUlQM or aPpelllnmces with a... i:ntcat It/iaftuence_
OoYmlmcM that are bdtttf g.f the' cotf.llClOr. lhu.......:ore no _t*ti-.. on
nDIRII! that youoouW! bO'&1IIIp1oyedby .. '.
work on. con..to 'which 'thobut .,Uo* wt )'OCIt'COMmW't-ieaJions, to en)!' Oovemme.nt
'Pncy __ the prokiibltiOtt,".appl,y to an
6tMMmumcllti01ll111{vol'vinS p1DI!ty social a lCquel' ,Ibr pubticJy. .vai,..
COl' Q iafmm8tioft OJ the I\IpplyhiJ Of._infotmalkm.
d. Futller Addltioad itd'mmUion ban,
t'llCladilll how it appUeec to Ad:vilOry 8OdAiSlallCO.semc. C08lt1lQ(OD (0". BrASS.
amdSCS), pleuo refer to (flo PmltOowmmm for
al1llli\Ch handoot,wbkh you h8ve boon. pftRlidcd. If you Me!
conalidcnmg employment with fI con1tal:Ilor tM t'qIro.se*"m bl'lll'W<lUf'" _at tUGe.
CaD provide additl<HItlanal", "'Idn8_ oper.Mlon of ,he buD ill til )10l1li' pmposod,
employment
4. Off..Duty titmh10l It_ft c.MsldtIMJ off..dutr
YOI1 should cheek with your aerv.lce chain ofeommnnd to obUn
_ ,emplQyme& notod1. the dtStri.edona'ft'om 18 U.S.C.t 200 _ 20S
,pro1ait;it,ctviUm )MdOftnMd ..active from altY eNId patty to the,
Gowmment; thiJ cttO(.1h'Oly prohibita aCOD\U'8Cter chJrt:na la'mJ:n.al or _uo1
"r."e ctthcc on B (Jovemmenl ilJSt.ld'aU'On or 'In a positkm w.hJ.eh feqW'. wJdI
(Jovcmment pctlODDd.
,. ConcIPoIa lll101lll'!:: 0., 41 WS.c. 42.l dmoo 1IOl p/lleo OIl)'Ollf
omt*,.m: option, Itt as u.s.c. '1111, tM. CIIId:twc>)'IW
'1 eo.neems
)DfD1f.cuhlr matM(s) lin wbich )W ad (CI wu widmJ. your
01 )OI.lrl>fllcJoJ wlUJe by the pcmtneJl.1 lhayou
iftkSUldanco of,18 U.S.c. f. 'JlfI not in ""1$
__demnd. PorfUdhll'
ple.au ,lat:Kb)(6) I
stl'la'lCllly
PT'" "
1.. Ruu.ltt.1'8 lbe Qne..Ynr Compeatad.Olll Ban
2.. <:fottommIMl Eth!es .
3.. Die_ifK:ation leier r&*d 4 April 2008 (totter did 9 April 2fHI .'ready 00 file)
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DEPARTMENT OF THE ARMY
OFFICE OF TH! OEN!RAL t.OUNSE!l
104,ARMY PENTAGON
WAaHJNOTON DC 20310.01-04
JUL -1 2Ofl9
Re: Post-Employment Restrictions/Section 847
Dear (b)(6)
___.....J
As you terminated 000 service Iwe are providing you with this
ment aetiv.ltiesas the relate to aroseetive new
'-- --.J a Defense contraCtOr.
There are a number of restrictions applicable to your post-Government
employment activities. J want to emphasize recent restrlotlons Imposed QY section 847
Elf (118 ttliatliilll lal.eMllle "allts: laai'll tilt f. fillI.1 ",....ei f"ulJ, it;. 11t OUJ: :' =
Certain current or former DoD officiaJs. who within two years of leaving Do.D expect to
receive comp.ensation from a defense contractor. must request and receive a written
opinion regarding the applicability of restrictions to activities that
Official may undertake on behalf of a defense contractor before receIving pay. It applies'
If you are a current or former 000 official who participated personally and substantially
. in an acquisition with a value in excess of$10M white serving In: (1) an Executive
Schedule position.; (2) a Senior Executive Service position; (3) a general or flag officer
in a positIon of program manager, proouring contracting officer,
contracting officer, source selection authority, member of the sOurce
selection evaluatIon board, or chief of a financral or technical evaluation team.
You served in one of thase covered positions, that is )na Senior
SeNtce position. However, it does not appear that you per$onally and sUbstantJal1y
partfclpate.d In the acquisition life cycle'of an acquisition valued in 'excess of $10M.
Accordingly, you are not required by section 847, PUb. L. 110':181, to receive an E;lthlcs
opinion that addressel posrsovernment empfoyment restrictions as they pertain to
your employment With b)(6)
My advice with res.pect thesa matters Isadvlsory only and Is provided in
accordance with section 2641. 105 of Title 5, Code of Federal RegWatlons. I am
providing this advice in my official capacity, on .behalf oHhe United Stales, and not as
your repres.ntatlve. Neither the ihformalion you provided to receive thIs advice letter.
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nor the provision of this letterI creates an attomey"c1ient telationshfp oetween you and
an attorney rendering such advl'ce.
. You were a, ainted ==;----;-__
b)(6) the b)(6) in b)(6) and served tn that position until
appofntment as th b)(6) in
b)(6) You resigned from this position on b)(6) YOU provided a Position
Description for your intended employmeht with b)( on May 18, and you
you did not d'SCUS6 possible employment with any potentlal employers
I have reviewed the Post Government Employment Questionnaire you
completed, resume provld.ed memo to the Acting pr'1CIPle CjPuty General
Counsel on b)(6) Iyour revised resume pro....ided on b)(6)
. Department of the Army General Orders No.3, dated 9 July 2002.
, and your 6 Posftion Description, which you provided. "rhe opl'nions In this letter are
based on the information and representations contained, within in these documents end
dIscussions with you.
DlscU'gn. Once an indIvidual has left Government service. there is a wide
array of post-employment restrIctions that are applicable to former Government
}S a of these
:r::=: t GO:
=: ..
Title 1!. Uplted ftttes C2de,Sem!on 201 (1! y..Q. 207), The primary
sourc@ of po6t--Government employment reetrlctions for former Federal employees or
officers is found at 18 U.S.C. 207. The intent of this statute is'to prevent former
Government employees or offIcers from exerting undue influ,ence gained from
Govemm&nt employment and using information gained while working for the
Government to unfairly benefit a new employer. While none of the provisions bar any
Individual. regardless of rank or position, from accepting with any
private or public employer after Government serVIce;. section 207 prohibits
indivIduals from engegt,ng in eerta'in actlvlt'es, on beha'if of persons or entities
other than the UnlteaStst.-, whether ar not done for compenS'ation. These
statutorily restricted activities are representations of other entitles before United States
officials. None of the section 207 restrictions' b$r
I:lffltimg ban. Title 18. U.S.C. 207(8). places a permanent, life-time ban on
employees of the govemment on "representation on parttcular
Specifically, the statute prescrIbes criminal penalties for any employee or officer who,
,after he terminates his employment, knOWingly makes. with the intent tQ fnfluence. any
communscation with or appearan,ee before any person employed by the United Stetes,
on behalf ofanofher in connection with a particular matter., The particular matter must
be,one in which'(a) the United States is a party or has a dfrect and sUbsta'ntJallnterest;
(b) the person participated personally and substantially as. an employee or officer; and
(e) thera was a specific party involved at the time of such participation.
d
The term "partfcular matter'1 fnc!udes any investigation, applicatton, request
for a ruUng or determlnatlon, rulemaklng, contract, controversy. maim, charge.
accusation, 8rrest; or J'Udicial or other proceeding. General is usuaUy
excluded from the term "particular matter," since oeneral seldom Involves
specifl.c parties. Consequently. it is possible that an employee who participated 1n a
. whUe employed by the Govemment will, after leaving Govemment service.
be able to appear be:fore hi:s former aSency concerning the appllcation of the rule to his
new private sector employer without violating the. lifetime restrictions. The term does
not encompass any matte,.. before the Govemment; only those matters that arise to
partIcular ma1ters. The proviSion further requIres that an employee's official
participatIon in a particular malter must have 1akenplaceat <1 time when the matter
Involved !i specific non-Federal party (Of parties) and also involve such a party or
parties at the time of the proposed representation, although tt'l'ese can be different
parties. FinaUy, the restriction remains for the /ffetime of the parttcular matter. For
example, when a contrl;Jet Is re-competed and awarded, the new contract is generally
considered a new particular matter.
To partIcipate "personally" means directly, and includes particlpa1ion of a
subordinate if actually directed by you in the matter,
To artielpate ((substantiaJ 'means,that. aur Irwohiement is of slgnlfi;panaa to
, .
requires motefhan responsibiflty, knowledge, perfUnCtory involvement, or
invOlvement on an actmfnlstratlve or peripheral Issue. A floOding of substantIality may be
based not only on the effort devoted 10 a matte.r, but em ft'e Importance of the effort.
While'9 series of peripheral Involvements may be Insubstantial, the single act of
approving may be substantial. In addition to approval, o1her acts may aJso be
considered IfsubstantlaI:' such as partlclpaUon in a critical step.
Appearance and Communication. Th&Se are the terms contemplated by the
act of representation, which shouldoot be .consldered a tonnel representation as when
an attorney represents a client. A communicatiOn occurs when youimparf or transmit
information of any kind _. including facts, opinIons, ideas; questions or direction .. to an
ernploye$ afthe United States, whether orally. In written correspondence, by electronic .
media, or by any other means. Thl.$lncludes those communications wIth respect to
whIch you intend that the InformatIon conveyed will be attributed to you, although it Is.
not necessary that any employee of the United States actually recognize you as the
source of the Information. An appearance occurs when you physically present yourself
before an employee of the United States, In either a formal or Informsl setting. Although
an appearance also may be accompanied by certain communi.cations, an appearance
need not involve any communication by you. Mere presence 1n a meettng may be
considered a!'l appearance. or In-house assistance to a private
employer is legally permissible. Although you unable to sign Y04r name
to a lettGraddressed to, or attend a meeting with. a Government official, you may legally
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tell your employer the name of the Government employee to or write. or with whom
to meet.
The re$triction only those QOmmulilcstlons "and appearances that ere
made f'with the Intent to Influence," which Include any that may be interpreted as an
attempt to persuade a employee to take ae.tlon. An "lntent to Influence"' may
be fou:nd If the communioation or appearance is made fOf the purpose ofeeeklng a
discretionary Govemment ruling. benefit. approval. or othef action. or made for the
purpose of Influencing Government action in oorm9ctlon with a matter wh lch the former
employee knows Involves an appreciable element of dispute concerning the particular
Government action to be taken. AccordIngly, the restrictIon is Inapplicable to a
communication or appearance involving purely social contacts. a request for publicly
available documents, or a request for purely factual information Or the supplying of such
Information.
The communicatlon or appearance must be made on behalf of else.
You may a.lways represent yourself. Note that the restnctlon does not apply to
communications or appearances before Congress.
AQoUcabiijty qf 16 U,S.C. 207(alt1) to!{our QtQ'QWti'1! itO(2lQJ(mJot.
Based on the written documents rov'ded arid our discussions, rhave determined that
b 6 was not ntegra 0 e
deciston to restructure the program. It resu" d om t at cion and $upportedit, but
is not so substantial as to constitute "personal and substantial in a
particular matter." Consequently. I have determined that that you did not pers"onallyand
substantially participate In theKb)(6) Inor wes Jtunder your official responsibility
under 18 U.S.C. 207(a){21.as discussed below.
In addition. you (b)(6) ItheKb)(6) )
provfding K=b)..>..:(6.t-)-- _____Jlto
, "[" n \
b)(6)
b)(6) I The programs I
I
b)(6) landKb)(6) I Each of these
programs had a prime contractor in support and vari'Ous sUbcontractors. The
contractual sIde of the programs are particular matters InvolVing specific
parties. not provIde any advIce or recommendatIons
concerning the specIfic programs, but merely outlined Army overall busIness practices
and ensured communication and coordination across programs so that they could
conform to the Army practices. One Anny business practice was to require the
programs to use the jwllhout mocUflOation to the extent possible
its across programs and I.nteroperabllity among the programs. The
_ land the requirements personnel for.the various programs worked
together In d9termlnlng how the program buslne.s$ wa1lces should be changed to
conform to the Army business practIce of adopting b)(6 with a minimum of revisIons.
The Kb)(6)1 did not dlscuS5 specific contractual effects of the policy program decisions.
While the decision to establish an Army bu.lnef:\s pottey may have ,an indirect effact on
the financial Interests of the JndMdual program support contractors. the decision
involved a policy matter, not a particular matter.
liIill
l ! triM" miVNi j5iH,(:;tniP Mart.' IRiiiii9i PliO
partlclpated. Should you recall such matters or should they corne to your attention, you
should .be sensitive to whether you parttcipafea personally and substantially and bring
them to our attention for further consideration. and analysis.
Two-ywl2an. Uhder the provisions of 18 U.S.C. 207(8)(2). you have a two
year ban on attempting to influence Federai officials on behalf of another on particular
matters that were under your official responsibility during your last year of Government
service. The two-year ban begins to run when your Federal employment terminates
and applies even if you did not personally particIpate in the matter. As with section
this ban applIes to representing another party before the United States
(except Congress) with Intent to ..influence. Behlnd..fhe-scenes or in-houSe aSSistance Is
legally permissible.
"Official responsibility" is defined as the direct administrative or operating
authority, whether intermed.iate or final, end either exerCisable alone or with others, to
approve, disspprovQ.. ot otherwise. direct Government aotioh. Accordingly, a matter is
under your "official responsibflfty" if you had the power, either dlrectly or through a
su.bordlnate. to a.pprove. disapprove, or Ofh.rwi$e dlreet a GovernMent action. Those
areas assigned by statute, regulation, execuUveorder, or JOb description usuaJly
determine the soope of an employee's official responsibUttY. AU particular matters under
consIderation In an agency are the official responsIbility of the agency heed, and
each is under ;that .ofany intermediate supervisor having responsibility for the activities
of a subordinate employee-who adually particIpates In the matter.
2 : g 1
; ....
A matter was "actually pending" under a fanner employee's official
responsibility If the matter' was in fact referred to or under conS'lderation by persons
within the employee's area of responsibility. It Is Important to note that unftke section
207(a)(1), this restriction is triggered simply by vrrtue of the fact thet the particular
matter was pending under your officlaJ responsibJllty.
APDliOJbllity of 1fJ WIS.C. tQ your You
should be cautious In yourp6stGovernmetlt empl.oyment aetivftle$ in regards to this
particular ban. this ban applies even if you had no personal knowledge of a particular
matter to which a specific party was identified. as long as It was pending under your
official responsibility during your l!ist year with the Government (5 C. F. R.
2641 & 0)(7).
Ordinarily, the scope of an employee's official responsibility Is determIned by
. those fun'Clions' assigned by statute, regulation, Exec:utive order, job description, or
of authority. A'I pai1lcufar 1T'Isttet'9 under consideration in an agency are
under the official responsibility of the agency head and each is ufjder that of any
Intermediate supervisor who supervises a person. Including a subordinate. who actually
participates in the matter or who has been assigned to participate in the matter wfthln '
the sea e of his official duties. You erformed the duties of DUSA during your last year
b) 6
In question 13 of your Questionnaire. you listed a number of matters that were
under your official responsIbility dUring your last year of Government service. You also
listed various matter'S 'on your resum$ that were under your responslbfllty,. In
subsequent discussion 'of these matters, you indicated that, with one &xception, they
were all general program or policy matters In the Army, not involving rion-Fe<!eral
Specific partIes. As such they do 'not comprise all the: elements required of "particular
matters," and therefore, do not invoke the two-year ban regarding particular matters
under YO.!Jr official responsibility. You indicated that the Kb)(6) . Iwas
executed by a contractor (a non-Federatspecifie party). It, therefore, was a partioular
matter under your officIal responsibility. If the contract has been comp'leted and closed
out, it no longer exists as a pertieuJar matter, and the ban is inappliCable. If the contract
is stili open, It remains a partIcular matter until tho contract Is out or two years
from your last day of Govemment service, whichever oCCurs first.
,,; ;
-7..
The difference between the two year official responsibility ban and the lifetime
ban Is that the lifetime ban Involves matters In which you personally and substantially
participated. while Ute two yaar official responsibility ban does not.
The (b)(6) I(s otie example of a particular matter that was under
your official responslbltlty durIng your 19S1 yea'f of Government servtce. This ban will
include all particul'ar matters involving specJffc parties pending. under your official
responsibility Iduring your last yetv of service. Please contact thlsofftce if.
other matters meeting these crlterfa come to your attention before undertaking any
representational activities concern'lng matterduting thiS tw<ryear period.
ane-r;.r lrade Of rrgIXAUfstanclbi.!D. Title 18 U.S.C. 207(b) provides
that for a period of ..year after leaving Government service, former employees or
officers may not knowingly represent aid, or advise someone else on the.basisof
oovered information. concerntngany ongoing .tr8rJs pi" treaty negotIation In which the
emp'loyee partiCipated personalty and sUbstantially in his or her last year of service.
This one-year ban applies to all employees: It Is not limited to senior offJclals. Trade
negotl'ations are those undertaken pursuant to the Omnibus Trade a.nd Competitiveness
Act of 1988. (19 U.S.C. 2902) Treaties are International agreements that require the
advice and consent of the Senate. "Coyered information!' Is Information found in agency
h!C6ffiS acemlblti II iH! bat iSt8fflpf troth dlcl6ure m'mi"if \i IIi _em er .;,n
Information Act. Based upon Our discussions and your duties. this ban is inapplicable to
your post-GovernmEtnt employment activitIes white employed by lli@I
Que-ve@r "Coolina-Off" flrlort. Title 18, U.S.C. 207(c). rs a cooling
off period, applicable to senIor off!cials. It prohibItS you from representing another
before any officer or employee Of your former agency, In this instance the ArmYI on any
matter. During the firat year after your departure from the position ofKb)(6) Iyou may
not communicate to or appear before any Army employee, aetlvtty, or agency. with the
intent to influence. on be.half of any other p.ersonand in connection wi'hanymatter in
which offlclal action by any offItr or employee in tne Army ls sought. The restrictIon is
measured from the date when you cease to be a senior employee. not from the
termination of Govemment service, unless the two oocur simuttaneous/y. This period is
designed to prevent any appearance that former senior officers are able to influence
government decisIon improperly because of theIr former senror. positions. You .should
nQte thattinJlke the proscription$; found'" 18 U.S.C. 2D7(rt}(1) and (1)'1 which
pertal" to pattlcufar matters, 18 U.S.C. 201(c) pertains to any matter In WhIch .
offIcial action by all Army officer or empJoywe Is sought.
8Q.QtlQg,QIfI.n' of 1'8 Y..C. 2OZ(c} 12 'loyr prosoegive As we discussed,
the one year cooling off period is aWlicable starting after termination of your service as
Kb)(6) . Iand is applicable to any representation of another before any
member or employee of th.e Army. This provision Is very broad In lis appliCation as It
relates to communications with or appearances before Army employees.. For example,
...';
I
.you wm be unable to attend meetings on behalf ofE] at wh\oh Army employees are
also In attendance. even though you do not speak. This ban applies to
I
meetfngs with 000 agencies. JoInt GQmmands, or other Government departments or
agencies at which Army parsannel are aNfgn.ad or detaUed and attend the meeting in
I
qu&stton.
I
8gstc!.iJ.tl9JJ!NJ.lJlRJ1J:UI1.tlntl or 'JrJi!1R. fgrttkm tn1iti's. Title 18 U.S.C.
I
207(1) provides that, for aperiod of one year. attar le.vihg a senior position former
senior employees or officers may riot knowinglyi with the Intent to [nffuance a dec/Slon
I
of an employee of a departmental" agency of the United. In carrying out his
I
official duties, represent a foreign entlty beforfJ any department or agency of the United
States, or aid or advise a foreIgn eottty. The restrIction ;s measured from the date when
I
an employee ceases to be a senfor employee. not fro.r:n the termination 0; Governmen.t
I
service. unless the two occur simultaneously. This restriction prohf.b.its a former senior
I
official from repre$enting, aiding, or advising a foteign entlty with the Intelil to influence
I certain governmen1al officials.
I
I
A"forelgn entity" means the government of a foreign country as defined fn
section 1(e) of the Foreign Agents Registration Act of 1938 (22 U.S. C. 611 Jor a
I
I
"foreign political party." The government Of a foreign country includes any person or
I
I rou Of arsons exerci$in severel n de '/Jelo or de ure . olitical 'urlsdfctlon over an
o n an 0 sue coun 1 an ncu, as any
I
I
sUbdivision of any sucn group end any group or agency to Which such sovereign de
I
faoto or deJUIYfI authority Qr functions are directly at indlrectfy defegated.
I
I
I A political party" Includes any organ(zatJon or any other combination of
individuals In a cOuntry (other than the UnIted States). or any unft or branch thereof,
I
I
having for an aim or purpose. or whiCh is engaged In any activity devoted in whole or in
I
part to, the control, or acquisition of administration or
I
contro), ofa government of foreign country or 8 subdMslon thereof, or the furtherance
I
I
or influencing of the poUtical or public interests, policies. or relations of a government of
a foreign country or a SUbdivision thereof. A foreIgn commercial corporation wm not
I
I
generally be considered a "foreign entitY" for purposes of Section 207(f) unless it
exercfses the functbns Of a soverelgn.
I
I
I
I A former senior official represents a fOreign entity when he acts as an <agent or
attomey for or othelWlse communIcates or mSl(es an appearance on behalf of that entity
I
I .
to or before any employee:of a department or agency. He -aids or advises" a foreign
I
entity when he assists the entity. other than by making such a communication or I
appearance. ThIs ban Is broader than that found In 18 U.S.C. 207(8) and(e)
I
I
because It also prohibits behind-the-scene assistance, If such advice or aid is.
rendel'9d with the Intent to Influencean official discretIonary decision Of a current
I
I
Fedlvsl deparlmentsl or agency employee. Such behind..the-soenes assistance to a
I
foreign entity could, for example. Include drefting a proposed to an I
advisIng on an appearance before a department, or consulting on other
I
I
I
I
I
-.-.-.-.-....-. ...._ _...........JI
-9
strategies designed to persuede departmenialor agency decision makers to take
certain action. Again. such representation, aid, or advice Is only prohibited if m.ade or
rendered with the intent to influence an official discretionary decision of a current
Federal employee: Unlike the prohibitions found In 18 U.S.C. 207(a) a"d (0), section
207(f) pronibits representation before Congress.
i!QtQCltln,. There are exceptions tattle reBtr1ctlon$ in 18 U.S.C, 207,
including acts pursuant to official U.S. Government duties. and aiding. advising. and
representing certa'n international organizations with priorSeoretary of State
certitlcation. Restrictions und.er 18 U.S.C. 207(c) do not app.ly to employees of state
or local Governments. hospitals, medical research organIzatIons. or degrae-grantir:lg
Institutions of higher learning. when making representations on those institutions' behalf.
Addltionally, If in.divlduals are not compensated, they may make statements based on
special knowledge. Restrictions based on 18 U.S.C. 207{a) and (0). which apply to
communications that furnish scientific or 1echnlcaI Information, may be waived by the
Secretary of Defense. There are special rules regarding testimony under oath. Please
consult this office for further guidance.
None of the above testrictions prohibits you from accepting any employment with
or organIzation. The rssttlCtJons apply only to speetnc post.. Gpvemment
em I ment activitfes-St,lch as re resentfn akUn or another in connectlpn
s":" . . r
entity. Additionally. the only restriction outlined abovethat prohibits a former executive
w
brs.nch from others before Congress(s 16 U.S'.C. 207(f).Self
representation or the expressJon of' personal views that are not advanced as agent or
representative of another Whether or not those vfew$ are speclfleaHy solicited by
the Govemment, (8 permIssible. Nor do the restrictions outlined abOve prohibIt
communicallons or contacts that are not made with the intent to influence the
.Government, such as reques-t$ for the status ofa matter or for publicly available
information. .
In additlon to the above proscriptions imposed by 18 U.S.C. '207, there are
otner statutory and regulatory restrictions applicable to post..Government employment.
These are discussed below:
r.IItrlsitlgD." 11 u..StC. 203. There Is a prohIbition against
sharing in any compensation for representational services, rendered'"personelly or by
another as an agent, attorney or otherwise, before the Government afa time when the
fo1'lT1t:li' employee was stifi employed by the Government. Accordingly, after you leave
G'ovemment servlcs, you may not accept Compensation for representational serVices,
whiqh were provIded by af\yone while you were a Government employee. a
Federal agenCY or court regarding particularmatters ro which the Government was a
party or had a substantial Interest. This prohlbltion may affect you when yo.u leave the
and share In proceeds ofs partnershIp or b.ueinoss for repre.sentational
services that occurred before you terminated Federal service.. Examples of such

repre$entattonal actlvitiesinclude lObbying, consulting.) and employment by taw firms.
This restriction is Inapplicable to :you In thel contemplatedpositfon )(6) I
prgwr@ment 'aturIN Agb I note 1hat fhe Procurement Integrity Act places
restrictions on the acceptance of compensation from a contractor. itspeciftcaUy provides
that aformer officer may not accept compensation as an employee of a contractor within a
one-year perIOd if the former offtcer; (1) served, at the time of selecUon of the contractor or
time of award, as the procuring oontractingofflcer, source selection authority, amember of
the source selection evaluation board, or ohlef of s financial or evaluatIon team In
.a procurement in excess of $10 mUllon; or (2) served asa progrem manager for a contract
in excess of $10 millron; or (3) personally made a decision to award a contract or task
order or delivery order in excess of $10 million to the contractor. to establish rates
applicable to a contract or contracts for that contractor that are valued in exeessof $10
million. A program manager is one who actlvely manages the program cost, performance,
and schedule, regardless of the title given to the Individual. A Federal who fits
within one of these oetegor'les, however, is not prohibited from accepttng compensation
from any dlvisron or affUlate of a contractor, so long .ss that divisiOn or affiliate does not
produce the same or sImilar products or services. Based on our and yOur
dutIes, you dId not serve in any of the above positions, so the compensatfon ban does not
apply to you.
!} !l
: ill :
I '80 Ii'! MffilAdtJdthJi 960 .,.aoffed tr6fT1 Osmg
information gained While employed by the Army that is generally not available tothe public,
(for example, proprietary or source setadtJon fnformation)If the otthat
Information would give you or anyone else an unfair f1nanciaJ or commercial adVantage.
113 U.S.C. 79.3 and 794 protoct and prohibit the use or disclosure of trade
secrets, con1idential business information, i3nd classified infQrmation. Further restrictions
are imposed by 10 U.S.C. 130.
PybUp FlnaneiJl Plag.nute BtP9tL You are requIred to file a Public Financial
DiscFosure Report, SF 278, within 30 days of your final day Of Government service In a
covered position. In addition. you are required to file an annual ref)Qrt covering aU of
calendar year 2008. As you left Government service 00 )(6) Iyou may file a
comblflatfon aMual and termination report, which covers all of 2008 and run& thr<>ughK-;-:"b)"';";;(6:7)-.
Kb)(6) I We recommend that you by to complete your report in draft and forward for
review for consistency wIth your 2001 reportbefore tlnallzlng. The. Designated Agency
Ethics Official, currently the Principal DepUty General Counsel, can gmnt an
extension of time up to 45 days beyond the due date of May 30. You may access FOM
through your AKO aCCOlll'1t using your current paSSWOrd for 180 d;ty$ after leavingthe
Depar1mant. .
Plsii:'&e contact me if there are changes In your wort< plans Of assignment so that I
can amend this advice, if necessary. 00 not hesitate to contact me at.any time with
questions that may pertain to these post-employment resttlcfJ'Ons. I may be reached at
.j j
-11
Kc:::.. IThank you for your service to our b __-...JI, and K,-,-b)--:....(S-,-)
nation.
Sincerely,
(b)(S)
Deputy General Counsel
(Ethics & Fiscal)
-- -
r,: .... ,. J.
DJPARTMENT OF Tl,.,.; AIR.FORCE
H"':ADQUAIt;:Y.RS AIR l1QRCE NUCLEAR WEAPONS CENl'Jl:R (AF'Me)
AFNWC/JA
2000 Wyomin.g Blvd SE
MAY 26 1009
Kirtlan.d AFB, NM 87 L17
Dear (b)(6)
I.
This Jetter responds to your tcquest for an.ethics.advisory opiniono;lthe.appIication of 18
U.S:.C. 207 tQ your potential futllI'e employment.. In.addition, this opinion will'
atldress restrictiOl'is fo.l1h in 41 U.s.C. 423:tJ,1l'lt apply loyall, as wellas prOvidIng you
guidan.co on the requirements of section'847 ofthe National Defense Authorization Act for
Fiscal Y!'ar 2008, Pub. L. No. llOl81. which becatt\e effective on 28 January 2008. While
advice from etbicsofficials with respect to 18 U.S.C. 207 is advisolY only, this is an
authoritative oPinion with respect to the application of41 U$.C. 423 (procurement Integrity
Act). In pr()viding this opiniollj the officials involved aTe acting on behalfof the United
States, and not 6.11 your persoilol. There is no relationship created .
by tbe consultation leading to tbis written.opinion.
2. Aepu!!tion gf41llSC.423:
a. Pl.lr.slumt to 41 U.S.C. 423(d) forme.r federal maynot:accept compensation
fro.m a contract(jr within a period of one year after such (Oniler employee:
(1) Served.; at the time ofselection oftMcontractor Or' thl:"award df'a contract to, that
ofa contract. in excess ofS10M. as tho Procuring C()ntucting Officer (peG), the
Source Selection Autho.tity member ofthe Source Sclec.tion Evaluatio.n (S$EB),
<l1' the cliief ofa financial -Of technical evaluation team, :Progtam Manager IJr,ogratn
or Administrative ContractingOfficer (ACO); '01:
. a) Personally made for the federal agency a decls1onlo"award acontraetover $i'OM.
subcon:tract over.' $1 OM. modificaubh 'ofa contract or subcontract over SlOM, or a task order'or
deliveryord.er in excess of$10,000.00'0 to thatcQntraett>r; or made.Rdecision to establish
overhead or other rates for 8 contract OT contracts valued over $10M. to approve issuance of a
contract payment or. payments over S10M, or a decision to payor settle a.contract claim ov.er
$10M, to that contractor.
b. "Compensatioll" means wa.ges, salaries. honoraria, cormnissioli.', profess'iona{ fees, and any
other f(:l1m of compensation, provided or indirectly,' fot" services re.ndered,
Compensation is iridirectly provided if it is paid to an .el1tity other than the individual,
specifically tn' exchaoge for ser\,tJces pro"ided by the iodividual [FAR 3.104-q
.... ,..
c. The ban does llOt apply to acceptil1g compensation from any 'division or aftuLate of'a
conttactor that does not produce lithe same or similar products or services" as the entity of the
controctor 'tllat is 'respollsible fOf .the contraer Y01-\ Were involved in (such as a oomme:rcial
division of the cont.ractor). [41 USC 4.23(d) (2)] The tenn "afflli:ate
lt
mefU1S ail associated
business concern .Of il'ldivid1.l31 directly or indirectlYt either (a) 000 controls or can. -control the
otbeJ', or (b) a third party controls orcan control both. [See FAR 2.101J
d. Whether a contract is over SID million is. generally determined at the time of contract
award. [FAR 3.1 04-1J Por example, jf a contract is awarded for mote thanS'l 0 mmion, .serving
in one. ofthe seven positions or making one of the seven decisions for that contract will cause the
I-year compensation ban to apply, even if the contract is> modified a.:tler contract award to an
anl'ount $10. million. Likewise, if a C01Ut'.act is awardedforlcss than $10 million, serving
in on6. of the seven positions or making one ofthe seven decisions fOr the oontract will DQ! cause
the I-year ban to apply, even if the coilLC'lct is modit'ied atter contract award to an amo'unl aboye
$10 m.fl1ion. Also" if a. CQ11tract has options; then the value orall of the Qptions when
determinin.g i.f the contract is over' $,1 0 tnillion. [FAR 3.l 04-1]
e. The l-year compensation ban is different from every other post-governm.ent employment
restriction in that it docs npt necesS81'i.1,>! begit, to run 011 the employcc'sdate of retirement,
separation or resignation. Rf!.ther, it begins to run 'as follows::
(1) If the employee was serving as toe PCO, tbe SSA, 11 member of the SSEB.; or. the chief
of a financial or lechnicai evaluation on a contract ()'iJet $10 miJJion. the .ban begins run.
.on the .date ofcontrac.t award (unless. thc.empioyee was ,serving in one of these positions an tbe
date of contractor seleotiQn'but !l2!' on the'date of contract Award, in which cac;:e the ban begins to
run on the date of c.ootraetor seleotion).
(2) If the .employee served as the Program .Manager, .DcP\lty Prog1'a1ll OT
Adnl'inistrative Contracting Officer, on a contact over $-10 million, the ban begins to ninon the
last served in that position.
(3) made one ofthe'scven types of deci&ions listed above on a contract
ov-et $.10 millioo
t
the ban begins to run on the dtit", the decision was made.. [FAR 3.104-3(d)]
Thus, if an etnployee was the Program Manager on a contract over $10 million,and heoT she
stopped servingin that 'position 14 months before retirement, the employee would be to
the i-yea.r compensation but. the I-year period would end before the employee retired.
"Likewise, if Q)akes one of the. St,'Ven types of dedsions listed above on a contract
over $10 million, ,snd does 80 six months before he or she retires, will be subjeot to
the I-year ban, but tho ban will end six JnQnths after the employee retire&.
f, Applicability 9f 41 U,s.C. 423 to your facts:
In your re9-uest .for.30-day letter, dated Iyou $tated r-0u st8rted.tenn1tl'al"}eave on
J811d retired on[b)(6) I Yo.ufurther stated you did not serve in any Qfthe' .
positions or make a11}' of1hedecisions addressed above.
g. U.s.C.423: Based oldhe infoTl'l1alibn you provided in your
Requ.est for 30;.Day Le.tter under 41 USC 423 dated Kb)(6) lit is my opinion that tile.
restrictIon in 41 USC 423 would not prohibit you from workhlg fur or accepting
2
.'
',:' ,:'.' .'.:.' .. ' ..
"--- ---' as ofthe date'ofthis opinion.
3. Qbc;cussi.Q.nof The post.,goveIfll'l1.ent employment restrictions of 18 USC 207
.will apply to you with regard tos,pecifle contraet':l or other particular tUatters: you were involved
in while with the govemme11t. Some of the more relevant prohibitions of J8 USC 207 are
:JUn1mari7.cd below:
a. .. ban. Title 18
t
Un1ted.. Section 207(a)(O,
provides that an Executive Btanch officer who has, in his or her official
participated in a particular matter (llu.ch as a government contract),
which invQlved a specific party O'f parties (:sucb as agoventmeltt.contractor) E1t the time ofsuch
participati911, Ina)' not, at any tim.ethereafter
t
knowulg1y'makc 1I11}' communication top. or
appearauce before,. officer emt'loyee United States) With.the inteQt to influence sU'ch
officer or In connecftoil With 5Uch-pdrtlcular'matter, on behalf ofany person
than the United States. .
b.SummMY QftwQ'")1l;t\r remesentatiQn. ban. Title 18, Ufiited States Code, 207(a)(2),
provides that an Exeoutive aranch office.r or employee whQ has tl. particular (such as a
governmentcOllt1'act) actually .pending under hi's het 'official teJ$POIisibiHty during the one.-year
the termi'nation or her s.etVice. which a specific party
Of partIes (such as a government at the urne It was so pendlIl8, may not
t
fo,r tw<l years
nfler termination of govemment service, knowipgly make any communication to, or appearance
before. lilly officer or employee ofthe United States, with the illtent to influence such o:ffieet or
employee', in connection with such matter. onbehalf of any person other than the United StatBS.
c. DefinitiOl1S. Here are some key definitions applicable to 18 USC
(1) The teml "participated" means an action as an offioer or ol\'lPloyee through
de-elision, approval, diSt\.pproval.
t
recol1linendation, the ren4oritJ;g ofadv.i,oo
j
investigation,.Qr other
such action. [18 USC 207(i)(2)J
(2) The "p.arttcular mattet; includes any ,application) request for a roling
or dererminati.on, contraet
t
controversyt claim.,charg, t\-ccusation, arrest
t
or
or .other proceeding. [18 nsc 207(i}(3)]
(3) "Au cl'l1ployee can participate 'p6tSona.l1'" 'in a matter even thOU!}l he merc)y dl-l'et.'t& a
subordinate's participation. He participates ifhis is ofsignificance
to the matter. While a series may' be insubstanti,aJ, participation
in,8 single critical step may be [Office. ofGovernment h1hi-es (OOe) memorandu'mt
"Summary of PO!ilt-EmpIQymerit 207," Febru.ar.y 17t 2()OO; page 4
(hereafter. referred to as I'OGE merito")]
(4) l'Official responsibility" is defined as "the direct adinffiistrative OT operating' authority, .
whether intermediate'.or final, and either exercisable alone or with other.s, and either personally
or through subordinates. to approve. disapprove
t
or otherwise direct Government [1 g
USC 202(b)} [An installatiM commander would gcllerally h;'lve official over all
contracts and other particular matters pending at that installatio)l (except for PEO programs
some matters at tenant' units}.]
(5) "The scope of an employee's official responsibility is determ.ined by those areas
assiaued by statute, excou.tive I;Jt'dertot job dcgcription. Allparticlilar matters under
ill agency. arc offic}w oftl;re alld is
under that of auy supemsor havmg l'CsponsllJlltty forthe ofIi subordlRute
employee wboactually participates in the maUer. All emp}oyee'ILfeeusal from or other non-
J
'pa1'tidpation in a martel'dots' n.otremov.e it frOIn his official responsibility. Amatter was
';Jctually pending' under a former.employee's official responsibility if the matter was in fact
referred to or under consideratioll by person.'! witllinthc employee's area Ofl"esponsibttity. A
employee is not subject Ute restriction. however, .Utiless at the time of the proposed .
.repr.esentation ofanother' he knows or reasonably should know that the. +i1a.tter had been under his .
oflicial reapol1sibflity during his last year of Oovemment setv.ice," [OGE memo, p8ges
d. The Code. of Fede.ral (CF.R.) provides that Ii contract is almost always a
single matter involving specific parties. Only under COinpeUing may
sepatate task or- deHvery orders be considered sepf\rate individual particular matters involving
specific matters. While' example 7 under thisplOvision ofthe C.F.R. identifies circumstances in
which an agency may detenn.ine 811 IDIQ type contract task or.dellvery order as a separate
individual particUlar matter from the other tasks ordered under that contra-ct, it specifically states
that where a former employee participated personally and substantially in the overall contract
through tbr example partIcIp.ating personaHy and substantially in the initi.aJ award or subsequent
oversight of an umbreUa contract (one that has abrow::l seop!,') of work. may encompass a wide
geographical. area, and where.the general nature ofthe- work and COlltract tern1S remain the same)
then the employee will be deemed [0 have participated persc>nally and substantially in resulting
orders. [5 C.F.R 2641.201(h)(5)(C)]
e. .cooct9siQD Regarding 18 U.S.C. 207(a), The facts contained.in yoltr .Ietter, I
Kb)(6) Iand received in this ofti.ce kb)(6) suggest .that 'empltlyment
of 18 U'SC 207(a) will apply to you with respect to yOUr Gorttemp:1atedempJl)yment.
For example, there w.ere a nUlll,ber ofmatters involving specifiq parties in whieh you were .
personally and'substantially"involved while w:i1l1 lyou should,neveruntietfak.e
any "r:eprcsentatioilal' dut.ies back to. the that may itl:volvilftoat con.tract. you
also supervised personnel t1)at also particip-dted in .evaluating perfonnance for ontl award fee
period. Inputs on acceptability ofperf6rtMnte.and
deJj.verables which wou]d trigger thC/:; two--year representation since:youalso parri.cipated
personally and subatantially, the lifetime representation on this cOlltraet is the ban that mugt
:beappli.ed.
f. 9uigance Qn complying with. the tenresentatjon. pans. Here is SOUle guidance on what .is
Rl'ld is not prohibitcdby the lifetimerepresentation ban ofsection 207(a)( I) and the
representation ban ohection 207(a)(2). The scope oftbe two bans is the same. The only
di l1'ercllce is their duration.
(t) Soope of the bg. The Office of Oovemme11t Ethics has stated:
Moreover, the restriction [i.e., lifetime rupresentation ban a.nd tbe twoyeat representation bait]
prohibits only those CQfnmunioations and appearances that are made the intent to
innuence." A "communioation" can' be m.a:de orall.y, in writing, ot through lectrollic
An "appeanUlce" extends to. a former employee's presence at a
proceeding when circumstances make'it clear that his attendanceis intended to influencethe
b)(6)
4
;;; ,
United States. An "intent'to influence'; the United States' may be found ifthe or
appearance is made for the purpose ofseekil1.g a discretionary Government beneflt,
approval, bt other action, or is made for the purpOse ofinfluenciag Government actionit:l
oonneetionwitb a.matter which the fonner empJO'yee knows an appreciable clement of
dispute concen1ing tbe particular Govemment action to be taken. AccordillgJy, tho prohibition
does Mt apply to an appeamnce or 'Co1Tnllunication involving PUl'Cty social 'contacts, a request for
publicly available docufi1ents" or a request for' purely factual infornlation or the supplyillg of
such informat.ion. [OGE pnge 31 '
(2) "A fonner employee is not prohibited by this restriction
[i.e. the lifetime representation ban a.nd tbe repl'esentationbanJ from providing
assistance in Cotincotfon. with the representation ofanother [OGE
page 3J
(3) fromQGE regulati9ti. Hete is some guidance from an OGE regutati.on 'ol1'the
application- ofthe lifetime represelltation. ban.
Example 1; AGovernment employee. who participated in,. writing the speoifications of
,contract .awarded to QCompany for the design of certairr education testing prOgrams;
joins Q.CompaIiY and does work Under the C'OJ)tract. She is aked to accompany 'a
.company vice-president to '8' meeting to state the results ofa series oftrial tests. and
does so. No violation.occurs when she provides the informatl9nto'ber former agency.
Dming the meeting a dispilte arises as'to some terms of the contract, and she iscalled
upon to SUPPOI1 Q Company's position. She may 'not do so. Ifshe had reason to
bclteve that the cortttactl.l8) dispute would bea subject ofthe meeting, she shoule not
have attended. [5 CFR 2637.201{b)(5)(Example)J
(4) appea,rance. You may notnttend any ineeting ofcQntra.ctor and government
personnel where the 'subject of the meeting is adisagreement or dispute between'the contractor
ann the govenm1ent, Le., where the meeting Will be., or is likely to be. adversarial in nature.
YOll may 110t' attend any meeting of contractor illd government .per$onne] if the
oftbe meeting involves the seeking ofany discretionary action' by the government (e.g., an
Engineering Change Proposal, a request for an 'adjustment, or a contract claim against
the government. or when an a.pproval Qt' a. produot or plan Of developed
the contl"act. (See Parngraph..3..f,(8)(a) Example 3
(5) permitted.lmpeatc:UlCeS. Youmayattend:any ofcontractor and govefftrtlertt
person.nel. other the type of-meeting. abo-yeas: a: prohibited a.p.pearatlee. You are
not prohibited 'frotn-appearing,at a deposition, trial or heirig in witb the contract, if
yOU will be giving testimony under oath or making stateulCnts required to be.!J!Mde under penalty
ofporj\uy.
(6) PTohjbimd YO'll marnot comnnud'oate with government em,ployees.
present the contractor's posi OJ' aCt as the contractor'g. negotiator. or
represcnrative, j'n connection with a disagreetnent or dispute between the obntfictor 'and the
gOVC1JUllertt,Lc. in connection with a Inatter that is adversarial in nature. Farther. yon may n.ot
cotnrf1unicate wIth governm.ent employees ifthe -suQject ofthe conllI1uni.cat,ion involves the
action by the govemrnent (e.g. an Engineering.Change Proposal, a
request for an equitable adjusol1ent, or a contract claim'against tbegoVerl1Ulellt, or an approval
of a pmdllct or plan design.cd or deVlll.opedunder thecontract. (See Pardgmpb, 3.,f.(8)(a) ExampJe
3. This..applies to all means of communication, includingpetsonaJ convetsatioris with
5
goveou11eilt employees, telephone conversations with governmel1t employees, meetings with
government cn'lptoyees, and written or electronic correspondence with gQvenunent etl1.ployees or
agencies.
(7) You may communicate with gt)vernn1.cnt employees in
conne(:tion with alll'outinc, non-lldversarial matters related to the perforrnance ofthe .
FOT example. you may supply to govel11ment employees purely faotual inform.atin c()Dccrning
the contract to whic;h the 'Qan applies (o.g., an information!tl brietlng). You may also requeet
fro111 government employees .pure.ly thaual infonna'lJon concerning the contract to which th'ban
applies. In short, you fit\)' communicate with government employees on allY matter canreming
thecOntra.ct to wluJ;h the banappUes, .x:c.ept fQf those that art}described above
as prQhibi1:ed communications.
(8) intent toIn:tlJien9. Certam comnnmicaiions to and appearances before emp19yees of
the United,Srates are not made with the intent to influence
l
.withil1 the metlJling of 5. U;S.C.
264\ :201 (e)( 1.) iilcluding, but not Ibfiited to., communications .at1d appeatftlWeS made solely tbr
the purpose of: Making a routine request not involvIng a potential controversy, such as a r.eqllest
fo.r publiclyavailable documents or an inquiry aHo the status of a Makjiig fac.tual
statemonts or factual in a cOllte-'\t that invofveS,neiiheran appreciable
ofdispute nor anet'fOit to seekdiscretionary Govl:)mm.ent action, sucllas conveymg factual
regarding matters thaure not potentially controversial during the regUlar course of
performing a contract; Making a oommullieatiQn. at the initiatton ofthe (Jovemment,
oonceming work performed or to be performed under a Govertll1rent contract or grant, durinRa
routillo Government site. visitto premises owned or occupied by a person other than the United
States where the work is perfonned or would be performed, in ordinary c()urse ofevaluation,
administration, or perfornllU1ce of an actual or proposed coiltnlct or grant.
(a) Examples of Intent to lIdluencc:
1. Aformer G.ov.emment empl()yee calls .aJormer colleague at the agen9Y
to ask ifthe hearing date for her client be. move.d up Olt sohedule,.&0 that
her c.lieIJt can move forward with its bus-iness plans nlOre:qulckly. Tbis is a
:inade with'the intent to influer'lce. [5 CFR.
2637.201 (b}(5)(Ex3m.ple)]
EXQmple,2. A fOl'mer medical offioerofthe Food and
sends 3 letterto the agenoy in wh1ch beSefs dataftom safety and
efficacytests ona new drllg for which bJs ABC DNg Co., is seeking
FDA approval, Even if the letter is oonfl:D:ed to arguap1y "factual" matters., such as.
synopses ofdata' from clinical trialS, the commUl11cation is made for the ptuposeof
obtaining a discretionary Government ac:tion, i,e.) apprQvatofa new (\rug,
Therofbre, this is a commuhlta:tion:made with the intelit to influence. [3 CFR
2637.20 t(b)(S)(Example)]
Example 3, A lonner Govemltlent employee"now wotks for Ii management
consulting ftrm, wbich has a Government contract to produce a study on the
effi ciency of certain agency oporations. Among other things, the contra.ct. for
the contractor to d.evelop a range of alternative options, forpote.l1tiid restructuling: of
berta-in int.cmaJGovemrnent pr:ocedures. The. fonner employQe would like to me.et
with agctney representatives to present a tentative l.istofoptiQnS developed bythe'
contraotor. She may nw.:do so. "There is 11.potentUtlfor controversy between ilia
(j
,\. ".
OOVCI'111nent and the contractor concern.ing tbe.c.xtent and adequaoy of any options
presented. and, moreover, the CQntractor may ha.ve its own interest in emphasizing
certain options as opposed to others because some optionsl'f!l:8Y be more diffIcult
and expen.<;ive fol' thecot\.tractor to develop fully than others. [5 CFR
637.201(eX2)(Example)1
(Q) Examples ofmcre:physical presenceilltended toinJlucnce.lJlider sutno
circumstances. former emp"loyee'smel"C' withmlt any commullication by
employee concerning an.y material issue or otherwise; may constitute an appearance with the
i11ten.tto influen.ce an emp.loyee ofthe United States. Relevant consldera.tions include such
factors as whether: The former employee been given. actual or authority to ma.ke
Bt.1Y decisions, commitments, or substantive arguments in the,course ofthe appearance; The
Govemm.ente1nplQyea before whom the appearance is made has substantive responsibility for
the matter and. docs not simply perform iltinillterial functions
J
such as th.e. E!.cceptauce of
paperw\lrk; The fonner ernployee'spresence tS relatively is .
paid fur making. the app.earanc.e; It is at1tlcipated that others present at the meeting will lllake
reference to the views or pa:mt or present wotk of the tOrl11:er Circumstances do not
indicate that the f()rmer employee is present merely for infonnational purp6ses
J
tbr example
t
11lerely to listen and record infonnatioll for late.r use; or The appearance is before ttmnet'
subordinates or others .in the same chain of command as the former employee. [5 USC
2641.201 (e)(4)]
(c) Examp.le.ofno Intent to Influence,
Example 1.. Aformer employee ofthe ptpattrnent ofDefense (DOD) now works.
for a firm that bas a DOD contract to prod\lce an operator's manual for aradar
device used hyPOD. In tbe.courseofdeveloping a chapter about technical
featutesof tbe deviee, .till;: fonner employee asks a DOD official certain factual
questionsabo\lt the device and its properties, The discussion d.ocsnot Cbneetl1 ali)'
111atter that is known to hlvolve apotential eontroven3y the. agency and the
COtltractor. [5 CFR 2631.201(e)(2)(Example)]
g. Itmay be possible'foryou towotk. bebjnd...the:-.sc(mc on the effort YPu dcsctibedin your
letters 10:1'\0 Iprovided the circumstances of your
employment do not place you in a position tbatresult.'i In a represetita.ti"on. Your .letter does not
specifY where you would accomplish the work you addressed f'orKb)(6) I A
position that require.'lyou to accomplish your work at a Government provided work station,
located 011 a Government installation would place you in a p.osition resulting in such an
impermissible representation. Therefore, your work effort would have to be accomplished at the
contractors facility, and fall within permissible appearances or communications without intent
to influence to be considered . ,
4. 847 of the Natiouij.I ror FiscalYear 2008. Pub.
L. No. 110-181, jf atthe time you left DoD service you served in one of the folloWing positions:
program 1'I1snagt.'r, deputy.progrcun manager, procuring contracting officer. administrative
contracting officer Sou,rceselection authority. ot the sourceselectiol1valuation board. or
chiefof a financial ortec.bnical evaluation'teamfora contiacttin excess of$.lOM and.plan to
recil'Jivo compensation from:1I defense Q.Q"R.trac.tur.withil'l two years of leaving DQP) you aro
,equired to request a written opiniOil regardil'lg to
the activities you undertake on behalfoftbe defense 'contraCtor.
7
----- r--------------
5. Qf{-gyty,EmpJonnent Since your requestfor Opinioll was not made until after your official"
retirement, the 'Qf 18 USC 203 and 26s art not applicable to th:is opinion., 18 USC
iOO and 205"prohibit military officers'and Federal civ.iliwl" employees from representing contramors
'Of other nOll-Federal or..ganizations before any agent)'. This nIle applies to Federal
empl.oyce.son lcave.
6. Man,gAlQry disclaimer. Be'advised-tbat the Depanment ofthe Air Force docs not have'authority
to issue authoritalive opinioJls on .tl)e restrictions contained in Title 1Sof the United States Code.
The seCtiollS of Title 18 are Federal etiniinal the interpretation ofwhich falls
jurisdiction ofthe DepartOlent ofJustico. Accordillgiy, you should be aware.that opinions'we may
render on the specifIc applioation ofsectfons ofTitle 18 are not binding 011 the Department of
Justice..
bXll
7. .[fyoll JIave.any questions, please cllllt__)_---------lat[bXll)

I .
Sincerely, .
bXll)
Acting$taffJudge Advocate
AttaChmentS:
1. Request for 18 USC 207 Opinioll, 6 May 09
.2. Request fOT 30-day Letter, 20 May 09
g
DEPARTMENT OF THE AIR FORCE
HEA.DQUARTERS 377
1
AIR BASE WINO (AFMCI

L4 April 2009
377 ABW/JA
2000 Wyoming Blvd SE
Kirtland AFB, NM 87117
_
1. Introduction:
This letter responds to your request for an ethics advisory opinion on application of41 U.S.c. 423
to your future post-government employment. In addition, this opinion will address restrictions set
forth in 18 U.S.C. 207 that apply to you, as well as providing you guidance on the requirements of
section 847 ofthe Natio.nal Defense Authorization Act for Fiscal Year 2008, Pub. L. No. IIQ.181,
which became effective on 28 January 2008. While advice from ethics officials with respect to 18'
U.S.C. 207 is advisory only, this is an authoritative opinion with respect to the application of41 U.S.C.
423 (Procurement Integrity Act). In providing this opinion, the ethics officials involved are acting on
behalfof the United States, and not as your personal representative. There is no attomey.client
relationship created by the consultation leading to this written opinion.
2. Application of41 U.S.C. 423:
a. Pursuant to 41 U.S.C. 423(d) fonner federal employees may not accept compensation from a
contractor within a period ofone year after such fonner employee:
(1) Served, at the time of selection ofthe contractor or award of a contract to that contractor
of a contract in excess of$10M, as .the Procuring Contracting Officer (peO), the Source Selection
Authority (SSA), a member ofthe Source SelectionEvaluation Board (SSEB), Or the chief oca
financial or technical evaluation team, Program Manager (PM), Deputy Program Manager, or
Administrative Contracting Officer (ACO); or
(2) Personally made for the federal agency a decision to award a contract over SlOM,
subcontract over $1 OM, modification of a contract or subcontract over $1 OM. or a task order or
delivery order in excess of$10,000,000 to that contractor: or made a decision to establish overhead or
other rates for a contract or contracts valued over $IOM, to approve issuance of a contract payment or
payments over SI OM, or a decision to payor settle a contract claimover $10M, to that contractor.
b. "Compensation" means wages, salaries, honoraria. commissions, professional fees, and any other
form of compensation. provided direotly or indirectly. for services rendered. Compensation is
indirectly provided if it is paid to an entity other than the individual, specifically in exchange for
services provided by the individual. [FAR 3.104-11
c. The ban does DQt apply to 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 you were involved in (such as a commercial division of the contractor).
[41 USC 423(d) (2)) The term "affiliate" means an associated business concern or individual if,
directly or indirectly. either (a) one controls or can control the other, or (b) a third party controls or can
control both. [See FAR 2.101.]
d. Whether a contract is over $10 million is generally detennined at the time of contract award.
[FAR 3.104-1] For example. if a contract is awarded for more than S10 million, serving in one of the
seven positions or making one of the seven decisions for that contract will cause the I-year
compensation ban to apply. even if the contract is modified after contract award to an 8II10oot
$10 million. Likewise, if acontract is awarded for less than $10 million. serving in one of the seven
positions or making one of the seven decisions for the contract will D21 cause the I-year ban to apply,
even if the contract is modified after contract award to an amoWlt aQoye $10 .million. Also. if a
contract has options, then the value of all ofthe options is included when determining if the contract is
over SlOmillion. [FAR 3.104-1]
e. The J-year compensation ban is different from every other post-government employment
restriction in that it does not necessarily begin to run on the employee's date of retirement, separation
or resignation. Rather. it begins to run as follows:
(l)Ifthe employee was serving as the PeO. the SSA, a member ofthe SSEB, or the chiefofa
tinancial or technical evaluation team, on a contract over $10 million. the ban begins to run on the date
of contract award (unless the employee was serving in one ofthese positions on the date of contractor
selection but nQ1 on the date of contract award, in which case the ban begins to run on the date of
contractor selection).
(2) If the employee served as the Program Manager, Deputy Program Manager, or
Administrative Contracting Officer, on a contact over $10 million, the ban begins to run on the last
date the employee served in that position.
(3) If the made one of the seven types of decisions listed above on a contract over
$10 million, the ban begins to ron on the date the decision was made. [FAR 3.1043(d)]
Thus. if an employee was the Program Manager pn a contract over $10 million. and he or she stopped
serving in that position 14 months before retirement, the employee would be subject to the I-year
compensation ban, but the I-year period would end before the employee retired. Likewise. if an
employee makes one of the seven types of decisions Ii!!lted above on. a contract over $1 0
does so six months before he or she retires. the employee will be subject to the I-year ban. but the ban
will end six months after the employee retires.
f. Con I re r 41.8.. 423: Based on the infonnation you provided in your Request
for 30-Day Letter, dated b)(6) it is my opinion that the restrictions contained in 41 423
you from working for or.accepting compensations from Kb)(6). lfor.the
b (6 through Kb)(6) IHowever, as oftbe date of your tenmnalleave, beginning on 16 June
2
I
land your subsequent retirement I you are not, based on the information you
provided in youtrequest for a Letter, prohibited from working for or accepting eomp.ation
from any other contractor.
3. Discussion of 18 U.S.C. 207. Thepost-govcmmcnt employment restrictions of 18 U.S.C. 207 will
apply to you withregard to speCific contracts or other particular matters you were involved in while
with the government. Some of the more relevant prohibitions of 18 U.S.C. 207 are summarized below:
. a. Summary o{lifetime re,presentationban. Title 18, United States Code. Section 207(a)(I),
provides that an Executive Branch officer or employee who has, in his or her offieial capacity,
'Participated personally and substantially in aparticular matter (such as a government contract), which
involved a specific party or parties (such as a government contractor) at the time of such participation,
may not, at any time thereafter, knowingly make any eonununication to, or appearance before, any
officer or employee of the United States, with the intent to influence lIuch officer or employee, in
connection with such particular matter, onbebalf ofany person other than the United States. .
b. Summary of two-year rcmresentatiQn biU!. Title 18, United States Code, Section
provides that an Executive Branch officer or employee who has a particular matter (such as a
government contraot) actually pending under his or her official responsibility during the
period before the termination ofhis or her government service, which involved a speciticparty or
parties (such as a government contractor) at the time it was so pending, may not, for two years after
tennination ofgovernment service, knowingly make any conununiciltion to, or appearance before, any
officer or employee ofthe United States, with the intent to influence such officer or employee, in
cOlU1cction withsueh matter, on behalfofany person other than the United States.
c. Definitions. Here are some key definitions applicable to 18 U.S.C. 207:
(1) The tenn "participated" means an action taken as an officer or employee through
decision, .approval, disapproval, recommendation, the rendering ofadvice, investigation, or other such
action. [18 U.S:C. 207(i)(2)]
(2) The tenn "particular matter" includes any investigation, application, request for a mUng
or detemtination, rulemaking. contract. controversy, claim. charge, accusation, arrest. or judicial or
other proceeding. [18 U.S.C. 207(i)(3)] .
(3) "An employee can participate 'personally' in a matter even though he merely directs a
. subordinate's participation. He participates 'substantially' ifhis involvement is ofsignificance to the
matter. Thus. while a series ofperipheral involvements may be ipsubstantial, participation in a single
critical step may be substantial." [Office ofGovernment Ethics (OGE) memorandum, "Summary of
Post-Employment Restrictions of 18 U.S.C. 207," February 17.2000, page 4 (hereafter referred to as
"OGE memo")]
3
(4) "Official responsibility" is defined as ,ethe direct administrative or operating authority,
whether intennediateor final, and either exercisable alone or with others, and either personally or
through subordinates, to approve. disapprove, or otherwise direct Government action." [18 U;S.C.
202(b)] [An installation commander would generally have official responsibility over all contracts and
ether particular matters pending at that installation (except for PEO programs and some matters at
tenant ooits).] .
(5) "The scope of an employee's official responsibility is usually detennined by those areas
assigned by statute, regulation, executive order, or job description. All particular matters under
consideration in an agency are under the official responsibility ofthe agency head, and each is under
that ofany intermediate supervisor having responsibility for the activities ofa subordinateemployce
who actually participates in the matter. An employee's recusal from or other non-participation in a
matter does n.ot remove it from his official responsibility. A matter was actually pending' under a
former employee's official responsibility if the matter was in fact referred to or under consideration by
persons within the employee's area ofresponsibility. A Conner employee is not subject to the
restriction, however, unless at the time oftile proposed representation of another he knows or
reasonably should know that the matter had been under his official responsibility during his last year of
Government service." [OGE memo, pages 5-6]
d. onclusion re rdln 8 U.S. . The information you provided in your letter, datedJb)( I
b)(6) suggests that the post-govemment employment restrictions of 18 U.S.C. 207(a) may apply
to you respect to potential post-government en,mloyment. It appears were and
substantially involved with matters land Kb)(6) _ Iwhile
employed by the Federal government. As a result. the lifetime representation ban applies to you
specifically regarding the particular matters you were involved with while employed with the
government. For clarification purposes, the lifetime representation probibition applies only to that
specific matters with which you were involved. It does not preclude you from representing this
particular contractor to your former Agency on other matters.
e. Guidance on complying with the representation bans. Here is some guidance on what is and is
not prohibited by the lifetime representation ban of section 207(a)(I) and the two..year representation
ban ofsection 207(a)(2). The scope ofthe two bans is the same. The only difference is their duration.
(I) Scope of the rgttesentation bans. The Office of Government Ethics has stated: Moreover,
the restriction [i.e., lifetime representation ban and the two-year representation ban] prohibits only
those communications and appearances that are made "with the intent to influence." A
can be made in writing, orthrough electronic transmission. An appearance"
extends to aformer employee's mere physical presence at a proceeding when the circumstances make
it clear that his attendm1ce is intended to influence the United States. An "intent to influence" the
United States may be found if the communication or appearance is made for the purpose ofseeking a
discretionary Government roling, benefit, approval, or other action, or is made for the pwposeof
influencing Government action in connection with a matter which the fonner employee knows
involves an appreciable element ofdispute concerning the particular Government action. to be taken.
Accordingly, the prohibition does not apply to an appearance or commWlication involving purely
social contacts, a request for publicly available documents, or a request for purely factual infonnation
or the supplyingof such infonnation. [OGE memo, page 3]
4
(2) Behind-the-scenes assistance. UA fonner employee is not prohibit,ed by this restriction [Le.,
the lifetime representation ban and the two-year representation ban] from providing cbehind-the
scenes' assistance in connection with the representation ofanother person.tl [OGE memo. page 3]
(3) Examg[sl from OGg regulation. Here is some guidance from an DOE regulation on the
application ofthe lifetime representation ban.
Example 1: A Government employee, who participated in writing the specifications ofa
contract awarded to QCompany for the design ofcertain education testing programs, joins Q
Company and does work under the contract. She is asked to accompany a company vice
president to a meeting to state the results ola series oftrial tests, and does so. No violation
occurs when she provides the information to bet- former agency. During the meeting a. dispute
arises as to some tenus of the contract. and she is called upon to support Q Companys position.
She may not do so. If she had reason to believe that the contractual dispute would be a subject
ofthe meeting, she should not have attended. [5 CFR 2637.201(b)(5)(Example)]
(4) Prohibited aPm'arances., You may not attend any meeting of contractor andgovemment
personnel where the subj cct of the meeting is a disagreement or dispute between the contractor and the
government, i.e., where the meeting will be, or is likely to be, adversarial in nature. Further, you may
not attend any meeting ofcontractor and government personnel if the subject ofthe meeting involves
the seeking of any discretionary action by the government (e.g., an Engineering Change Proposal, a
request for an equitable adjustment, or a contract claim against the government).
(5) Permitted lPpearancet!. You may attend any meeting ofcontractor and government
personnel, other than the type of meeting described above as a prohibited appearance. You are not
prohibited from appearing at a deposition, trial or hearing in connection with the contract, if you will
be giving testimony under oath. or making statements required to be made under penalty ofperjury.
(6) P[Qhibited communications. You may not communicate with government employees.
present the contractor's position, or act as the contractor's negotiator, spokesperson orreprescntative, in
connection with a disagreement or dispute between the contractor and the government, I.e., in
connection with a matter that is adversarial in nature. Further, you may not communicate with
government employees ifthe subject ufthe commWlication involves the seeking c;>fany discretionary
action by the government (e.g. an Engineering Change Proposal, a request' tor an equitable adjustment,
or a contract claim against the government). This applies to all means ofcommunication, including
personal conversations with government employees. telephone conversations with govemm.ent
employees, meetings with government employees, and written or electronic correspondence with
government employees or ageneies.
(7) Permitted communicl!;tions. You may communicate with government e m p l o y ~ e s in
connection with all routine, non-adversarial matters related to the performance ofthe contract. For
. example, you may supply to govenunent employees purely factual information conceming the contract
to which the ban applies (e.g. an infpnnational briefing). You may also request from government
employees purely factual information concerning the contract to which the ban applies. In short, you
5
'. ',:: ,",
may communicate with-government employees on any matter concerning the contract to which the ban
applies, except for those communications that are described above as prohibited commWlications.
4. Pursuant to section 847 ofthe National Defense Authorization Act for Fiscal Year 2008, Pub. L.
No. ifat the time you left DoD service you served in one of the following positions: program
manager, deputy program manager, procuring contracting officer, administrative contracting officer
source selection authority, member ofthe source selection valuation board, or chiefofa financial or
technical evaluation team for a contract in excess oUIOM and plan to receive compensation from a
defense contractor within two years of leaving you are required to request a written opinion
regarding the applicability post-employment reslrietionstothe activities you undertake on behalfof the
defense contractor.
5. Mandatory disclaimer. Be advised that theDepartment ofthe Air Force does not have authority to
issue authoritative opinions on the restrictions contained in Title 18 oftbe United States Code. The
sections ofTitle 18 are Federal criminal statutes, the intelpl'etation ofwhich falls under the jurisdiction of
the Department ofJustice. Accordingly, you should be aWare that opinions we may render on the specific
application ofsections ofTitle 18 are not binding on the Department ofJustice.
I
Sincerely,
StaffJudge Advocate
Attachment:
Request for Opinion, 8 Apr 09
6
('1 Aug 2008
377 ABWIJA
2000 Wyomiug.Blvd BE
KittJimd AF/3, },r'1'f.t 8'71 J7
[b)(6)
be!' __
'This Jetter to ttl' t(hiGtadviMl'y,qpitf'klt\,comcm.i11i.g, wlWttter
Kem
p
k)Yi
J1t
restrietillfiS In 4'1 VSC 21'(1;)y Wl .. wUhKb)(6) . I
b)(6) or tbe(b)(6) I.Btjt!iy,4t USC
fi:ol.l1 accepUp.g:001T,ip\'lJ.\tatioX!. Of 'pOiIifiQflS or
made ee.riabt iiect5Ioll'$ 'Itl .eo.ct vli.fu'C),(f, that
COl'ltracktr, I wiH alsoaddrm J:a tJS<! '191 fQ- situatitlli. Tbisllt8tU1:t
'PQst-separation 'aeuy!tiesin ti:rtiti .
Under 4 t USC 423, .[:Jesignated EthiO{; Omclt\lJl and their d0SigBt!ll may rend,cr nutbita;tiVe
regarding the statute to the aacaptll.t1ee of comp.ensadiJil ftmn ootlt'rll.etors. Based UP()t! the
Inf(JTmatim'l J reoelved .frool y0u that did not serve in 11)' of tho 01' UtBbtitly ofti)e de'Qisions.
covered by 41 USC 423 on any valued at over ten nlilllon donals with any oftll'c or:goniZ1itiQtl$ listed
above, it i$ my op.inhll.l. tha'f. 41 tJSC 423 would IeStrJcl YUU .lhJm WQtk1ng tiJr alnd 'a-;oepti:ny compim.'l!ltion
from Kb)(6) lor theKb)(6) I,
the po,,(d"goemmenL emplo>yft1&lt :of 13, usc 2fr1may Iqlpl)! ta wifb;.t;eglU'd llilGh
as tho contraot or' tile 'l'$SI1t 2 identHled in you rtt'lilM t;lnd to
otber 'spooi& matters in ye:ll'. Jh;vtilveli' th.at.Q t:ime
{),fYOUI'par.t{'eipafirtn. The 'M"1$ USC .201.a:J:'11l ." .
l:8.l)nlted States Code, 20'.1RubdlVisipn (a)('1) pi:tl'Nidos
t11at. . lkan:et't. e-hyPJoyec wli,tl 'io J:dlJ:tw her
aM or other- m*r,. which 'ilft'VO)ved a:
specitkparty Qf as' a. Df!).DCli'ln1rllcler} at tbe ttn1c of.suh ,partiel.pttw, ffi8lY Ulit't; aley
time ther((#!pr, ta.f)r 4Ppe.lrrl!"e officer $r. eJn.ployec
of"the U1iited St,M 'Ot''the D:latri\it wi-rhtlw to .:sucb lJt.er O'rmiPlo}'); :in
wft'h''S'Uob goyctf;ilnent oontt'ilot 'ot o.tbeqJitt>tiutaf" matter, Q';J'i h'ellalfof"1iUt:Y'persQllotner Ihan
the States olthc mstrlet ofColwnbin.
IWll"YL'a( Title UmJIXISthteliJ. $ubd:ivt5km (a)(2)prp.vidoll
tbat till .Brltueh.offl:ber ot ern,P'loyee-who.h.M a eOlttta'OtOT other pftrtiQlltar m.;\trer
Ilctually P81Klmg UPlder or !u.'1' qf}t'ckJf..rl!i[1Oft8ibmty during-tN' period fhe
tei"tl:ti'A.aUOl'l of his 0:1' :her gOVef1U\'lQ.Qt service, whi.C.b il'lvolved a 'SPlw-ci!J;C pad? ot ;parues Estw'h 35 ll. Ot)O
contractor) a1 the tl:n'te it Wi!;S'SO pcnding,mlty not,jIVi' two ytrars. after the termin.tinanofbis C); her
&tlt'o'iCCl, kn<lwing'!, make: any cQmmu1tfcati.oN- to 01' appePif'(f(,IIr:e hefOf'f: BUy f>ffk> lIr
empJoye.e of tn.e Uni1l\:d Sbl.tes or tht District of Cottll'tIDia. with the imeat to 'intlucnoe such offiGer or
"', :.... ' ' '..... "....... ..,"'.""' """"' ''''''', ." ....a. _ " __"" ,__ -. .
employoo, in connection- .nUltteT, 9.1 b.ehalft1if.fttly
baler th an {"h.e SWliis or the Of' Cdlumbia,
E.xatrlples ofptohihited i:tlc1Udl;} IJct1n:g,:it$.. It in tYF Of
a.d.v.l!rsatial sitimticm lovOoI.vmg t1nf. llS .a price a or 0
qispute {Wet: tbe Of (olltte'IS )'01:1 were
tnvol vcd in whihl: with the Alga l'Jfoltibite6 is' representation; tvlmte tI!1:e" ,s l'e'klr\g
action by the GowrtJrttelit (such as a cet!1rBt;t claim, II for equtt",hle ndj Contrnct
Change propostlJ, requ.est for waiver ofcontract ow,).
However. other C'l:"1l\lmunicltions with federal Clll:!?loyees ate pennitted 1J1'IUlllr the R.lpreaentath,)f:\ ban:: piJIrely
socia! contacts, requests f'(Jr rnahlicly lwaf.lable dOOulllents. torpurely faotua,lirrfurmation. ortke
flupplying of purely factual informat.ion. f'arthel'n':l()re, this statute does not prevent from workJ:i;lg in n01\
clilpa.etties (i.e. not or appeaf'ing wHh the illte.nt to on those game
mattO!'Il or from working 01'1 otber n:.DiI.tters or contracts fur ihos.e c:untrllctors.
. Allso ren'tembetibllit 01lrtrent e:m.'I:I)'eIls{inalud:i:r.lgtftose in a, are .pttJlu:b"ited byltJSC
203f20S from. (ttiro.l'l.gh eommu!l(tl1ll:tlon ar eat\1patlies. Q'i:' 1\pn...:(edeml
entities before any IiederaI agency. the nOD l$n.led gllittmnie that 18 USC
2()3/2-O6 pNCl"ude& a F.I'lembe:r ;fJ:lJin. with Federal woricplace
as Il contractor wllilt, on le.ave ftGMlh:a govemmertt.Prcfuibitif.d teloepho.tlit: or
wl'itlOO fnJ.mtJJ:l IheP'@deml it is the rt1lMel1tat1a!t Jhm 1S JKohibitfl:d, not i ust
fact that it plate it! the
oPloosll: be ad-vi.sl)d th",at the De"ttrtltlehtof:the Air Fot'\:e isskle op.mWn9 fegardi:t'$ Tide J8 of
1he Unittld St'ates Code, IhBt file (If1l191(ioe.,.
Tho <>pinl.ont. lo.l:iC'f l8 <).11 the Dernrtm:l'ut 0.(

Sit1cerely,
[b)(6)
Staff' .Judge Ae:Jvoclrtc
.. , :.. : .
.DEPARTMENT Of<' TilE AIR rQDCE
HEADQUART.Ii;RS AIR FORCE NUCLEAR WEAPONS CENTER (Af'Mq .
6 January 20tQ
, AFNWCIJAN
KirtlandAFB NM 87117
Kb)(6) 1It a so addresses. yourrequestJor advice on the
application. of 18 USC2071.0" your potential' future employment with those companies.. Briefly.
41 USC 423 prohi"bits certail1former employees from accepting COlupe.ti.satioll from a contractor
fOT a period ofone year 'if they served in certain positions'or made .certain deci.sians in
connection with a contract v,.lued at over UO,OOO,OOO awarded to that contractor. 18 USC 207 .
prohibits represontational aetiyitics-under-'certain circumstanes.
2. Backgtound. Effective 19 Nov 09) the Department of Defense (DoD) adopted as final an
interim rule ('1.4 FR 24.08) amending the Defense .Federal AC'quisttion Regulation Suppiement
(DFARS) to implement Section 847 ofthe Natl"onal for Fiscal YC81'
2008 (Pub. L. IlO181). Section 847 requires that-a DoD official WhO .has 'participated
personally and stibstannullyma DoD exceeding $10 mUlion or who has held a key
acquisition position, must request' a written opinion from a DQD .etbics counselor before
aocpting compensation from any DoD contractor within. two years after D9P service.
Additionally. Section,847 prohibit'S 8 DoD contractor from providing compensation tosl:Joh a
DoD officia.l without first determining that the official has received or appropri.ately requested a
post-employment ethics opinion.
Based on yom assertiotlS in for a 30-Day Letter. Section 847 is
a. Iicubleto ou. currenfY aj within the . ear tior to the date of yo:ur re<!uest. you-servoed as
b 6 for the b)(6 contract of b)(6) You also served as the
b)(6) for-this contract, valued tlt over $10 Million. With the ex.ception of the b)(6)
eontract, you stated that,during. the same one-year period preceding'your request, you have flot
served in llIly of-the. positions. nor made any ofthe whioh 'wo.uld trigger ijIe
compensation ban of41 USC 423..
3, COMlusk'lil Re.garding 18 42.3. Under 41l)SC 423, Ethics Ot't1cials
and their designees .may rend.er authoritative opinions to
the acceptance. of compensation ftomoontJattors. Based 01'1 your le.It'14r, if is Tn)' opinion thrit.4J
USC 42.3 wouldapply Howeve.r. the one-year ban 'to
ae.cepting compensation form any div.ision or affiliate ofa'contraetor that does notprodtlcethe
same orsimilat products or servlcesas the.contractor responsible tor thQ Guntra:et you V\Il::rc
invulvcd in. The term "affiliate" means' an associated business concern. or individualif,'dixecdy
or indirectly. eith{;."f (&) ORce controls or can controlthe a third pa.rty controls orcan
control both: RclbrenceFAR2.101. The one-year. boo. runs from the date ofyo.ur last as.
Program Manager.
4. DicussiQn of 18 USc. 201. The PO$t":"'gover.nment employment restrictions of 18 USC 207
will apply'to you with regard to specificcontroots or other piuticular matters you were involved
in during your .government service. Some ofthe' more relevant prohibitions of 18 USC 207 are
summarized below:
a. S'ymmm:y,2flifetime representation ban. Title 18, United: States Code, Sootfon .
2Q7(a)(l) provides thafMExecutive .llrattch officer or employee Who has,. jh his or her
official oapacity, ahd as a
government contract)) which Involved'a or parUes (sQC.h:QS a gOVllJrnmeh:t
oontraetor) at the f .may t):Qt, at wiy. time. 'l<:il9W'irtgly
make any c.ommumcation t(.!" or bo'tbl'(::. any Officer or employee of;the Ullited
'With. the intent. to such offioer or employee
1
in. c()nnectiQn with such
pariu:ular on bel;talf of any person othor than the UnIted States.
b. wzreseptittiou bJp. Tide 1.. 8
1
United States Code, Section
201(a)(2). :Provides Cat an Exc.cutive.Br.ancb officer or emp}oyeewbo has aparticu'lat
matter (such as a tJove,rnm-ent coiltract) actually pond'ing uri'de.t his or her 'Offiq'iol
responsibility during the one--year period befutethe' termination.of his- bt ner' government
2
service, which involved a specific' party or.parties (such as a gQvemme.ntcontractor) at
the time it was so pending, may not
2
fOT two years after tenninanon.of gGvcmment
service, knowingly make any co.nunupication to, or appearance befOre, any officer or
employee qfthe United States, 'with the .intlmt -to influence such ofti"cer ot employee, in
c().nnection With such matter, onbehalf ofany personother than. the United States.
S. Here are some ke.y definitions applicable to 18 USc. 207:
ft. The term "particip.ted" means an action taken at; an officer l:lr employee through
decision, approval, disapproval, recommendation, the rendering ofadvice.
or other su.ch aetion. [18 OSC 207(i)(2)]
b. the 'Jparticular matter'" includes any investigation, application, request for a
ruling or detennination, .controversy,.claim
1
chatge,. accusation,
arrest; or judicial'or other proceeding. [18 USC 207(i)(3)l
c. "An employee can participate"peTIionally' in amattel' eVen though he merely directs a
sub9rdinate's participation. He'participates 'substantially' ifhis involvement is of
significance to the matter. Thus, while a series of peripheral involvements may bQ
insubstantial, participation in a single critical step may be substantia!." [Office. of
Government Ethics (OCE) melnoranQum, "Summary of Post.. Emp!oyment R.estrictions
of 18 U.S.C. 207," February 17,2000, page 4 (hereafter referred to as "DOE memo")]
d. "Official responS'ibility" is defined as "the direct administrative or operating authority,
whether intermediate or final, and either exercisable alone or with others, and either
personally o.r through subordinates,. to approve, disapprove,()r otberwise direct
Government action," [18 USC 202(b)] [With some an mstallation
commandor would .generally have officiaJ responsjbility over' and other
particular mlltte"rs pending at tba:t.il1StaUatiott.J
""Che scope of an employee's official responsibility is usuallydetennined by those assigned
by statute, regulation; orjob description. All particular' matters under
Ci:>nsh;letation in an agency are unde.r the official responsibility'of the agency p.ead. and each is
under that o.f'.any intennediat.e supervisor havhlg responsibHitylbr the activities of a subordinate
empleyee who actuallY.participates in the matter. An employee's recusal fTom or other non
partieipation ina matter does not temove it from his official :re!llponsibility. Ama.tter
'actually pendillg' 'under'a f.ormer employee's offi-ciai responsibility if the Mattetwli:J in fact
referred to or under cQnsid.cratiol1 QY persons within the employee's A
former employee is not subject to the restriction, however. unless at the proposed
ofanother he knows or reasonably should know tha.t the mattcrhad "been under his
ofticial responsibHitY during his last year ofOQVemrnenl service," [OOE .memo., $-6]
.6. EXRlainin!U.b&.lJreadth QffuQ'207{g) RevresematiopaJ RestrictiQn. The aGE expounded
upon what representational activities are -prohibIted- by 18 USC207(a) in an Informal Advisary
Opinion (99 X 19, dated October 29, 1999). That case involved a employee who
was the contracting officer on u 70. million dollar constn1Ction contract. The contractor filed a
large volume of claims' against 'the government iA C(lnricction the contract.
offlJ::Cf retin:d trom govcnunonhervicc. Since the cOhtracting:officer had participl.rtd .
personaJlyand substantially intbe eonstruction contract. the litbtime representation ban applied
to her regarding the contract, The govel"1U1lentagency"that hod coritracl aiso bad
3.
. .
a contl'act wi'ilia c()ttsultmg company tOt technical .support ofthe litigation involving the
construction
'l'11e former contrac::ting 6fficer did not want to go to for the contractPf that had been
a:wardQd theconstruetion 'Contr:aet and that had filed thc'oiaims. Rather, she wanted to go to
work for' the cOlTh-ulting company and tllQn he.lp the gov.emment resolve the claims. The former
contracting officer as.ked ihe Office ofGovernttlent Ethics (DOE) for advice 01'1. whether she
would violate 18 USC 207 if she wen,t to work fortbe.litigation support cont:ractor and help the
government resolve the contract claims. She contended that, in making .cQmmuriications and
a.PPeiU'ances in connection with the contract, .she would be.acting on bebalfofthe government
and as a re!lult, hor commWi.ications and appearances would not violate 18 USC 207.
Howev.er, the OGE concluded that the proppsed employment by the former contracting Offi.CCf
would violate the Jifethne representation ban. The OOB stated thatt'any 'coirtmunications and
appearances she would be required to make to the -Government would also be made to advance
her lrmployer!s business interests arisinS from its co.tlsuIting cClr1tractwith 'For this
weca.nnot say that [the' former .employee.}shares an identity'of interests with (the agency]
or thut her function' as ari employee of (the colls'Qlting.pompany] would' be to suppo.rt [the
agency's] "interest :inthe contract claims,"
The .consequence of OOElnfonnal Ad'Visotr Opiftion 99 X 19 is 'that goveJ1lDlcnt agencie$ wiIl
be precluded by 18' USC: 207 from ob1airiing 85ststanbe from former government
employees who leave government service and take with them valuable knowledge, and

1. C.QncJusLon regarding 18 USC 207(a:). The facts oontained in your 101ter suggest that the post
g:overnment employmtmt I'e$tdctiohS of 18 usc 207(a) will apply to you with respect to your
Ctlntemplated employment. For example. there we.re a nUlnber ofmatters involving specific
parties in which you 'wer@ persfmally and involved during your tenure with the
govCrtntlent. Yau should never undertake any dutie.s- back to the government
that ,may involve those particular matters. There' wete also a nwnbet'ofmatters involving
specific parties pending under your d/ft"cJa.1 responsibility of
service (i.e., contract with Orbital SCiences and the mission 8Ssura.rtce cOntract with Northrop
Grumman). As a result, the fW9-)'elQ' representotion ban applies to 1Q1,l regarding these' matters,
8. Qui_; on compl;:ing with bans. Here is some gufdWlte on what is and
is -not prohibited by the lifetime representation ban ohection 207(aKnand thetwoYeiQr
.representation ban of section 2.o7(a)(2). 'The:, scope of the two bans is the same. The only
ditTerence is their.duration.
a.Scope oft,be The has stnfud:
Moreover, the restriction [Le.
t
Jife,tim-e ban and
ban) prohibits only those ommuriicatiQnsand"'f1pptMwiccs are -made. '*with the in:tept
to " A"commun.ication" can bemade orally) in writing, 01 through'electronic
trMsmission. An "appearance" (Xtends to a former employee's mere'.physical presence
4
0,"'.
at a proceeding when the 'make it clear that his attendance is iDtended to
influence the'United States. An "intent to the Ut1'ited States may be found if
the ommunication or nppeamnce is made for the purpose ofseeking a
Oowmment ruling. benefit. approval. or other action, or is 'JDade for the purpose. of
influencing C;overnment action in conneotion with the fortner'etnployee
knows involves an appreciable element of disputeconc.eming the particular Government
action to be taken. Accordingly, the prohibition does not apply to an appearance or
invo)vjngpurely sqeiaI arequest for publicl)' available
documents, or a request for purely factual infortna1ion or the' supplying of such
information. [DOE memo, page 3}
b, Behind-tlUNCetteS assistance, "A forrneremployee is not prohibited by this restd4tt.ion
[I.e., the lifetime representation ban and the tW9-year ban] from providing
'behind-the--scenes' assistance in connection with the ofanother
[OGE memo, page 31
c. Example from POE reg11li.\tiQn; Here is, guidance. (Toman OGE regUlation on the
of the .lifetime representation ban.
Example: A Oovemrnent employee, who participated in 'M'iting lhespecificatiotls.of I:l
contract Q Company c-ertiUn education testing progrwns
l
joins QCompany and does work under the contract. !s,:askedtoaccompany a
vice-president to a meeting-to state the resultS' ora series of trial tests. and does
so. No violation occurs when she provides the infonnation to her former agency. During
the meeting a dispute arisoslis to some tenns of the cottttact, and she is called upon to
support QCompany's position. She may not do so. [{she,han reason to believe that the
contractual dispute would be a subjeet of the meeting; she sho'(ud not have attended. [5
. CFR 263-7.201(b)(S)(Example)
d. Prohibited A12Dearanees. You may not any meeting ofoontractor and government
personnel where subject of the meeting-is a disa.greement or dispute between the
contractor and the government. i.e.., where the meeting will bl:y Qris;.lLk$]Y to be, adversanal,
nature. Purther. you may notattond any meeting ofoontl'f1ctor and.goveritment personnel
iflhe subjeetof the mceting'iovolvO$ the seeking of'any discretiOJ.lary aotion py the
governmont (e.g., an 4i'requestf-or 'an Qquitable adjustment, or
a cOntract claim -against the gov..eriitnent). .
e. .permitted'APpl.!rances. You may attend any meeting ofcontractor and government
personnel; other than the type bfmeeting described above as B;prohibited appearance. You
are not prohibited from appearing at fl deposition.. trial or hearing in connection with the
contract. jfyou will be giving testimony under oath or making :s1atetllents'required to be
made under'p(:J}alty ofpf;rjuty.
f. m.bibited cqmmunicatioDs. You may notcOinmunicme with 10vernment empJoyees,
present the contractor's pOSition, or twt as the contractor's negotiator) spoke.spe.rsoll or
in connection with a disablfeement or dis.pute between the 'contractor and the.
s
government. i.e., inCCllmection with a'matter that is adversa:rial in nature. Further, you may
not communicate with government employees if the subject ofthe c9tt1rrlunicationinvolves
the seeking of any discret!cnary action by the government (e.g., an Engineeting Change
Ptoposal, a request for an equitable adjustment, Qr a cla.im.ugainst the government).
This app.lies to all means ofcomnlunieuti(}n, including personal conversations with
government. employees; telephone. conversations with employees, meetings
with.government employees; and-written or electronic correspondence with goven:tment
employees or agencies.
'g. P;rmined cOt1'Wooications.. You m.ay communic.ate with:guvemment employees in
connection with aU rtbn...adversarial matters related lathe performanc<:i ofthe'
contract. f'ot example;. you may supply to govetnment em.ployees:putely factual
concerninglhe contract to which the ban applies (e.g'.
1
an informational
briefing). You ma3 also l'(.,"'qucstfrQm govenunent employees pure-If tactua11nfonnatiQn
c01l.ccming the contract to which the ban appties. In. short. yeu .communicate with
govemment employees on- MY matter the contrao"t to whlcbtheban applies,
except for those communications tl1at arc described above as prohibited
9. diseJlimcr. Be advised that the Dept\rlment ofthe Air Force does not ha17e authority
to issue authmitative opiniOllS On the restrictions' contah1ed in Title 18 oftho United States Code.
ThesectiongofTitlo 18 are .Federal criminal statute's. the interpretation Qfwhich JilUs under the
jurisdiction ofthe Department ofJustioe. Accordingly. you should be aware that opinions we may
render on the speci'fic application ofsections.of Title 18are not l?indil1g on the Department of
Justice.
10. Finally, please keep in mindthatmilitaryofficCrs are probibited: from contrac.tors
or other non-Fedend organizations-whil&on terminal leave, withOUlpriorapproval. Therefore:,
should'you desire to engage in off..dutY Q..'mployment.. we reqU:i:red'''to complete an Applicatiqn
$11:d Approval for QffDuty Etilf.lloyment (AP Foiln 3902).
11. If yoa.have any questions about this t>pmlon) please 1
Advisor, at Kb)(6) I
SinC!;1'Cly.

StaffJudge Advocllte V
Attachments:
1. Request fol' a 30-Day 28 Dec 09 (3 pgs.)
2. Disqualificlltion.Letter
t
16 Dee 09 (2 pgs.)
DEPARTMENT OF THE AI;R FORCE
IiE'ADQUART:ERS.AIR FORCE NUCLEAR WEA.PQN$ CENTER (AFMC)
3 Deoolnber 2009
AfoNWC/JA
2000 Wyol11ing Blvd SE
KirtlandAFB.NM 87117
b)(6)

l}ear --'
1.
TIlis letter responds to your requestJor an ethics advisory opinion on the. application of
41 U.S.C. 423 to your future. pqgt...government.emploYment., In a!qition, this opinion will
.!1ddress restrictions set forth J8 U.s.C. 2IY1 that may apply10 you. as welt as providingyl>u
guidance' on the.requirementl;olsection 841 ofthe NatiQnal Defense Authorization Actfor
Fiscal Year 20()8. Pub. L. No. 110-181, which became effectiye on 28 January 2008. WhiJe
advice from an ethics official with respect to 18 U.s.C. 207 is advisoryonly, this is an
aUthoritative opinion with respect to the. application, of 41 U.S.CA23 (Procurement Integrity
In prov:idir.tg this opinion, the ethics officials involved are acting 011 behalfof the United
States, and not as your personal representative. There is no attorney-cHent relationship created
by the consultation leading to this written opinion.
2, of41 U.S.C. 423:
iI. Pursuant to 41 U.S.C. 423(d) former federal employees ['(lay oot accept cOIt1:pensation
from a contraclOI within i;l period of one year after such fortner emp.loyee:
(I) Served, at. the ofselectioll.of the coutmctor. or the award. ofIi conttactto (hat'
C1?ntractor ora contract in exc'essof$.10M, asthe.!ltoeuring,Contracting Officer (PCO). the
Source .selection AtlthOrity (SSA), a member Qlthe. Source:$elecuo'!1. Board (SSEB),
OJ: the a:llnaneial 01: tecluiical eva1:uatlOJHeam, Program Manager (PM), DeputiProgram
Manager, or. Administrative Contracting Officer (ACO); or .
(2) Personally for the federal ageney a to award a contract over $1OM.
subcontr,act over $lOM, modification. ora,contract or oVer $'lOM
f
or a task order Of.
delivery order in txceS5 'Of$10.000,000 to that or made a. deoision to emablish
overhead or other rates fOf a contract or contracts valued o.ver $1 OM
J
to appz;Ove issUf;U1pe of a
contract payment or payments $1 OM, or 3. decision to payor settles. claimover
$1 OM, to that conn'actor.
b. means salaries, honoraria, commissions, 'professional tees, and any
other form of compensation, provided directly or .indirectly, for services rende.red.
Cotl'lpC1l!lation. Is indirectly provided if it is paid to an entitY other than the individual,
spedfically in exchange ror sCrv'ices pr.ovided by the [FAR 3.1 1]
c. The bml does. 9Q! apply .t-6 accepting !Compensation from any .dMsi0U or aftUiatil!: of 11
contractor mat does not.produce "the same or similar produtmI or services" as the entity o-r the
contraQtor that is for tbe contract you. were. involved In (such as a. commercial
division of the c6n1ractor), [41 USC 423(d) (2)] The term means a:p. as.sociated
business concern or if, directly or indirectly1. either (a) one controls Ot can control the
other. or (b) a thi.rd ..parlY cqrorols or can control both. FAR 2.101J
d. Whether a contract is over $lO milliOl1 is generally detei1nined at the time of contract
award. "[FAR 3.1041] For ex-ample, ifa contract is awarded for than $10 milliQI4 serving
in one of the seven positions or making: one of theSeWll deoisions for that t;lonttact will cause1he
tyear compensation batl to apply, eyenif the contract ,is modified after contract a.ward tD an
amount below $10 million. Likewise, if Il contract is awarded for less than $10 million, serving
in one oltlla seven positions or nIJolking one oftbe seven decisions.for the:contract will nQ! cause
the ban to apply. even ifthe contract is modifwd after contract award to al',l amount above
$10.mIllion. A1SC,), if-a contract ltas then the value of all of the options when
determining if the contract is $10 million. [FAR3.I04-1]
e. The 1 compensation ban is different from every other postl.'govemment employment
restrictiOl'l in thtrt it does not begin to rtm on. the em.pl()yee's date of retirement,.
sepa.ratlon or resignation. itbegins. to ruil as follows:
(1) If the employee wasservingas 1he PeO, tbe SSA, amember.QftheSSEB, or the chief
of a finanCial or toclmi"aj evaluation team, on a contract overSl 0 million.the ban begins to tun
Qn the date of contnltt award (un1ess the employee was serving ilt oneoftjlesepositions on the
date ofeontractor selection but QQt on the date QfCdntraet award,:io whicb case the begi!"S to
rUll on the date of contractor selection). .
(2) If the employee $rved as the Program Manager. Oeputy Program Manpget, or
Admillistrative Contracting Officer, OJ] a contact over $10 .milJion, the ban begins to ntn on the
last date the cmployeeserved:in thatpos.itio.n.
(3) If the .employee made one of the seven types of decisions fjsted above on a Gall-tract
overS:} 0 million, the ban begjns to run on the date the decision was made. [FAR 3;1 04-3(d)]
. Thus, if an employee was the Program Manager on a conttac.l over $10 million. and.heot she
stopped serving in that position 14 months before retireme13t,. the employee would be subject to
the I-year comprmsatioll ban, but the I-year period would end before the employee retired.
Likewise, if an emplDyee makes on.e of the seven types of decisions listed.. above 011. a conttact"
over $1 0 million. and does so sIx months before li.e,or she retires, the employee wiJi be subject to
the l-year ban
J
but the ban will end. six months employee retires.
2
3. DiscussiQn of] U,S,C. 207. The pos'twgovClMInent employment restrictions of 18 U.S.C. 207
will i:\pply to you with regard to spCific OQn:tmets.01' other particularllutttet.S you "Were inv()!ved
in while with the government. Some of the more relevant-prohibitions' of 18 U.S.C, 207 arc
summarized below:
a. ban. Title 18. United States Code, Section207(a)(l).
pr-ovides that an Executive Branch'officer or employee who has, in his or her official capacity,
participated personally and'substant,ally in a particulat matter (such as.1l govetnment.coJitract),
which'inv.olved II. :Sp4."eific. party or parties (Sllch as a govemment COIU'ractor)'af the. timeot' such
iliay not, at any t'llake any communication to, or
a.ppearance before, any officer Ot employee ofthe Uni1ed States, withthe influences.uch
officer or employee, ip connection with 's-uch particular matter, on beha1f'ofany person other
than 'the United States,
b. ban. Title 18, United States Code.
provides that an Executive Branch officer or employee who has Ii particUlar-matter (such as a
government contract) actually pendirtg url.der his or her official responsibility during the one-year
period before the termination of"his or her government servic.e, which involved'l:' speeitlo pmiy
or parties (stlcb as a govemmellt contractor) at the time it was so pending, may not, for two years
after tennination of government service, knOWingly make any eommunicll.tion to, or a.ppearance
beforo, any officer or employee ofthe United States, with.the intent to influence such officer or
employee, in cOJU'lection with such matter; on behalf o.f any person other than the United States.
c. P.:finiti2n. Here are some key defblitions 18 U;S.C. :207:
(1) The tern;1 "participated
H
means a1'laction taken as an officer .Or employee through
decision, approval, disapproval) rCQom.l11endati.on, rendering ofadvice, investigatiQll, or o1her
aetion. ["J 8 U.S.C. 207(l)(2}]
(2) The term "particular matter" includes any application, -rcque$'t for a
ro1ing or ddennlnatiOll) conttaet. controYetsYt claim, acc\fSstion) aRest, or
judicial or otherptoceeding. (laU.S.C.2070)(3)]
(3) "An O+1lployee can participate 'personaUfin.a.matter even tfiougll he LTlerely directs a
.. subordfnate's participation. He participates ifhisinvolvement of signifioiUlcc
to the matter. tIb.us, while a.seris ofperipheraT involvements may be participation
3
in a single critical step may SUbstalltial." [Office of Government Ethics (OGR) memorandum,
tSummary Restrictions of 18 U:S.C. 207/' February 17. 2000. page 4
(hereafter referred to ail "OOE
(4) "OfticiaJ responsibility" is de.fined as 'the administra'tivcor operating
authority, whether "intennedla:te or final
t
and either exerdsable alone or with others, and either
personally or through subordinates, to approve, disapprove.. or Government
action.'! [18 U.S.C. 202(b)] [An Installation commander would. generally have official
responsibHity overall contracts arid other parti.cular matters pending.at that. installation (except
for PEO and some m!lttel'$ at tcnmit uoit$).]
. ).
(5) "The scope of an o.mployec's:officialresponsibility is usually determined by those
areas assigned by statute, regulation, executive order, or job description. AI) particular matters
. under consideration in an agency are under the. official responsibility ofthe agency .head, and
each. is that Of nlter:rnediate supervisor having responsibility for the activities of a
subordinate employee who actually particIpates irithe matter. An employee's l'ecusal fro.m or
other n.on-pertici pation in a matter does not remove it ftom his offlcial A matter
wall 'actually pending under a fonner employee's official responsibility ifthe matter was in fact"
referred to or under consideration by perSo:ns.witbin the employee's area of responsibility. A
fonner employee is not subject to the restriction, however. unle.s"S ot the time of the ptoposed
representation of another he knows Cr reasonably shoUld know that the:matter had be.en under his:
official responsibility during his last year ofOovemment se.rvice." [OGE ttleroo. pag'es 5-6]
the b)(6)
Applications Incorporated sup ortoontracts thelaekson and"Tul1 Co oration contract to
b 6 contract fOf' b)(6)
b)(6)
the. b)(6) and the
b)(6) contract for b) 6
L>.....L..;>..;;.L...__ ---..,.----:-:-_----=-_'----J
On the matters identified above. and any other matters 011 you arc personally and
substantially involved, the 18 U.S.C. 207(a)(1) tifetime. ban prohibits you, at Wlyrlme thereafter.
from knowingly making any communication to, ot appearance before, any officer or employee of
the United States. with the ilttent to influence !Deh officer or employee, in'cottnectioll wi1h.sueh
particular matter, on behalfofany personother than the United State:s. Additionally, wi(h regard
to matters idelltified that were under yourofticial. responsibility the one year period prior
to your termination oIyeur govcmuneJ'!t such as the b)(6 eontrnct and
Kb)(6) [contract. with .. 118. U.S.C. 2Q1(a)(2) pr,ohibitS you Jor
two years after terminiltion ofgovernment serviQe, to kripwingly make any
appearance before, aDyQfficer or employee of1he United States. with me intent to influence. sue.h
p'ffioor Of" in connection with such matter) on behalf.of My person..other thnn the
United States. .
4
;. .. .
I
If prior to leaving Fedel"'dl . ..vice, you' are personally and substat)ti.ally involved in allY
additional matters invol \r"illg' specific parties, or jf any partieu1ar matters are under yoqr official
respclnsibility, even ff 'yml are not personally and 'substantially hiVolved, the.n the
government restrictions' of 1,8 U.s..C. 207(u) will apply "to those as weil. Definitions for
what constitutes a particular matter, personal and substantiai involvement) and official
resporisibility are listed in paragraph "3 (0) above. As a reminder.. the prohibitions of 1"8 U.S'-C.
207(a) apply only to the particular matters in which yOil were either personally and substantially
involved or that wete under your official responsibility during the one. yew: preceding.
termination ofyol.T1' govewmellt employment. 18 U.S.C. 207(a)"does not-pro-hibit')'our general
employment with or by any of the government' contractors, .nor does. it prohibit you from
}accepting compemation from any of the referenced government C"o.t'1t!actofs, it lnerely prohibits
you from representing those contractors back to the Federal government on the particular' matters
for wbich you were responsible as a Federal employee. If you hlJve any questions about the
application of 18 U.S.C..201(a) to yO'Ul' potential please feel fre.e
ttl call or b)(6) I
e. Guida,ncl.'r Oll ggmplYhw: with bans. Here is some guidance on what .ls
and is not prohibited by the lifetime. repr.esentation ban of section 207(aXl). the tWQ--year
representation ban of secthm207(a)(2). The scope of the two bans is the same. 1be only
diffrence is their duration.
(1) $cope ofthe repreSentationJ2An. Office ofGovernment Ethics has stated:
Moreover, the reStriction representation ban ap.d:the two-yearreprcse'1ltation ban]
pro'hibi1s only those:commuriications and appeSra:t1ces that are made "with the .intent 00'
A l'eonununioatian
t7
can be made 'orally, in or through. electrollic
transrnission. An: extend$ to a former' emp.loyee mere at a
proceeding when the circumstances .make it clear tbat his attendance is influcnte
States. An to influence" 'the United may be found ifthe communication'or
appearance is nuttle. fortbe oheekinga'discretionary Government ruling, benefit,
approval, Of other action, 01" is made forthe Government action in.
connection with a matter which the fotrner employee knows involves an appreciable element of
dispute: concerning' the paltic'Ulat Oovermnent.ac.tIonto betaken. Accordingly, 111e prohibition
dO'es not apply to an appearance or communication 111volving Pw:e1y social contaets
l
a requeSt'tor
y available documents, or a request for purely.factual information or the supplying ofsuch
infonnation.
(2) #jsistance. "A former employee is notjll'ohibited by this
restriction [Le., U1e lifetime representation ban and the twa-year repres$1tation ban] from
providing assi:stan.ce in C01Ulection with the representation of another'
person." ,
(3) ijXatnple aGE re.gulatiQu. Here is some guidance from ail OGf. tegtdatlon ort
the. application oftbe lifetinlc representation ban.
1; A'Govenunen:t emp19yee, who participated in writing the specifications ofa
conttaet awarded to Q'Company for the design ofcertaineducationrestillS: programs,
s
joins QCompany and does work onder the eontmct. She is a$ed. to accomPMY a
.company vice-president. to a meeting."ro state the results ofa serles oftrial lests'l and does
so. No violation Qt.-ours when she provides the information to berformer agency. During
the meeting a displLte "arises as to some terms of the C91'1tract. and she is catted UpOl'l. to
.support QCompany1s positi.on. She may not do so. Jfshe hadreasonto. believetbat the
CDlltraetual dispute WQuld be a subject Qrtbe me,ting, she should not have at.ten<ied. fS
CFR 2637.2'01 (b)(5)(ExampLe)]
(4) 1>r"Qbjbite.d lPPfmwces. You may not attendany meeting. ofconti'actor and
govemment personnel where the subj.eetof the meeting is 11 disagreement or dispute. between the
contractor and the i.e., where the. meeting will be, or is likely to be, ndversarial in
nature. Further. y0l111J;ayn9t attend any meetil):g'of contractor and govefnmentpersonnel ,if the
subject oftlle meeting involves the seeking ofany discretionary action by the govemnlelnl
an Engineering Change Proposal, a request for an or a contract claim
the government).
(5) appearances..You may attend any meeting ofcontractor and government
personnel. other than the type' ofmeeting desoribed above as aprohibited appea.rance. YOl;1 aro
not prohibited fromappearing at a (Jeposition" tri81 por .hetiriqg in cO!lDt;Qtion" with the contract, jf
you will be giving testimony under oath or m8kingstafements required to .be made uoder penalty
ofpezjury. .
(6) l"rohibi.m..q CQn'.Unullicatiom. You may not communicate with govemmen1
employees, present the. 'position, or' act as the cQl1traetor's negotiator, spokeaperson or
representative. in :comJcction with iii; disagreement ordispute beiween.the oontractor and the
government, Le" in. cOnl.iection with.a metter 1hatu adyers.arial-in natqte.FW1:her, you may not
,communicate with if the subject ofthe communication involves the
ofany by thegovernment (e.g., an. Engineering Change Proposal. a
request for an equitable adjustment, Qr a C<)l1tract claim agp,lnSt the .government). This applies to.
all meaus ofcOJtUnunication
l
including personal eottversations with government employees.
telephone conversations with government employees. meetings with government employee..<;, and
written Of elec1ronic correspondence with government employees or
(7) Permitteg You may oommtblicate with government employees in
co.nnection with all routin.e. non-adversarial1p.atters.related.'to the perfoI:tJJaDce of the contract.
For example. you may supply to government employees purely factual informl'!1ion concerning
the contract to which the ban applies (e.g.. an informational hri.'etlng). You may also request
from govemment employees pW'",ly factual infonna1iQl1 conce:ming the contract to which t.he ban
applies. In short, you I112I:y conununicate with govemm011t employees on an.y matter concerning
the contrat to which the ban applies. except for those. comm\tq1cations that above
as prohibited oo-munmications.
4.. Pursuant to section 847 ofthe National Defense Authorization Act for Yeat2008. Pl\b.
L. No. Jt 0181. if at ihe 'timeyou leave DoD serviceyou ,served in one of1he following
pGsitions: program deputyprograin manager. procuring contractill.g officer, .,
administrative contracting officer source authority. member ofthe source selection
6
., ,.":"
valuation' board. or chiefofa fmancial or "1mim for a contract in excess of
$lC)M and I:eceive. compe.nsatio.pfroma:defense oontractor within two ye-ats of leaving.
DoD, ym,rare re<i.uired to request a \IlIritten opinion regardingtbe 8pplicabiHtypost..em.ployment
restrictions to the activities you-undertake on' behalf ofthat" defense contractor.
5. Employment by military members during. terminal is considered off..duty employment.
The general role in DoD is that you must obtain prior approval ofoff:duty employment ff (1) you
are required to fi.le a Jinnncial disclosure report (i.e., SF 278 or OGE Form 450).!YlQ (2) you will
work'!"or a t'prohibfted source" (e.g" a DoD eontractor). [JER para. 2-2061 Within AFMC all
penonnel are .required to obtain prior approval of employment. (AFMC Instruction 51
201" para. 1.3] Off-duty employment is generally approved hy one's Agency Designee (i.e...fIrst
supervisor who is a comttliss:ioned military officeI' or G8-12 Of above). YQU shO'uld.
cbt:ck with your chain-ot-command to determine if win re,quire you to obtain appl;6va.l for
'off-duty employment lOU may in betweenXb)(6). ,. IWhel:lyou .begin :leave,
and )(6) when YOut :retirement becomes effective., dwiag the petlOd.ofyout
tenninalleave yOll remain a Federal therefQre may not. work for So contractor ifthat
.work is conducted in a Federal govetnment workplace. This:. is considered by,the Office of
Government Ethics tv cOhStitute representation of a conq.-actot the Federal government and is
prohibited while you remain a Federal employee.. Ytm WOuld l1otbeptohibl'ted from wo.rking fot'
a in fa.cilities outside ofthe Federal
6. 'M,lIJdi!torv Be advise,d thfl.t the Department of tho Air Force does n.ot .have
.aurharity to issueaothoritative opinions,on the restrictions 'contained..iu TItle. 18 t>f the United
States Code. The. sectio.ns of Title 181lfc fc:detalcriminal statutes
t
tbe interpretati.on of-which
faUs under the jw'is"diction ofthe -Department ofJustice. :Acco.rdingly. you d be aware- that
opinions we may ronder on the sped.no l!:pplication ofsecti()'J:1s ofTitle 18 ere.not bindill& on-the
Department of Justi<:e.
7. IfYOU1have Wly questions. please call K'--'b):...o..(6....:...) orKb)(6) 1
b)(6) I .
Sincerely.
b)(6)
StaffJud:ge Advocate V
Attacbment;
Request for _
1
.,
, ..
I
I
DEPARTMENT OF THE AIR foleE.
HEADQUARTERS Ala. FORCE NUCL'EAR. WEAPONS (AFMC)
I
;
4 November' 2009
APNWC/JA
Kirtland' AFB NM 87117
r)(6
l
i
l'
I
1. lnvoduc.Yon and Ba;:kgrQupd. This letter responds to yourrequF-st.foran ethics'advisory
Qpirticn concerning whether the em.R]Oyment ,=ctions set forth in 4llJSC
423 apply to you with regard to employment With the )(6) I It alSo
addresses your request for advice on the application of 18 OSC 201.to.your future employment
with. that. com.pany. BrieflY14l USC 423 prohibits oertain former a.mployees from accepting
compensation from a contractor for a period ofone year if they serVed in certain positions or
made certain decisions in connection with a contract valued at ovet $1 awarded to thllt
contractor. J8 USC 207 prohibits postseparation representati,onal in certain
circuJnStance.s;" I
b)(6)
since b)(6) as' year, you duties were related
b)(6)
. b)(6)
: b 6
his contract .badno reI tion to th b)(6)
b)(6) Tq yori.r knowledge. ydU!" duties during your tenure a -em-.p---;.}-oy-e-e---;d"""id=-'
ntit mpact nor invo.lve I You planlon resigning fromthe Air
Force on )(6) lpending a'final offer from the companyI j
i
2. ,Q9m;lusion. RSigardins 18 USi: ill. Under 41 USC Agenc)' Ethics Officials
and their designees may render auth.o,ritativeopinion$ regardingtmt applicability ofthat statute to
the acceptance, of compensation from C()Dtractors. Based on your J+tter. it is my op.inion. that 41
USC 423 would not .restrict yon from working'for and.accepting from )(6) I
L I
3. Di$USSion'Of 18 USC 207. The p05l..govcnUtient employment., strictions' of 18 USC 207
wiU apply to you with regard to specific contracts or other particulttr matters you were involved
in during your government service. ' Some ofthe more 'relevant of 18 USC 207 are
s\U11Jnarized I
I
I
I
a. SYmmI!O! cf lifetime represe.rUltiQri 11m. Title18. 'States Code, Section
207(a)(1), provides that an Branch o.fficer or employee who has, in.his other
official capacity, participated persQna,Uy and substantially itl 4\ purticular matter (suQ}us.:a
govemnlel1t contract),. which involved a specific party or (such as a government
contractor) at the time ofsuch participation,'may not, time thereafter. knowinglr
make any comnnmication to. or a,pptarance before. any otllcer or employee ofthe Umted
States, with the 'intent to influence such officer or in. coDl1(,"'Ction yflth such
particular matter, all behalf of any pcrsOl't other than the Oqited States.
I .
. I
b. SummarYof two-year ban. Title Uni1ed States Code"Se,clion
20.7(tl)(2.)' provides.. that an Exec.utive Btal'lch officer or.em:. oyee who ha.sapart .. icular
matter a f40Vemment contract) actually pending er his her official
responslblhty'dunng.. the Qne..year period before,the terml'Q orms or her 8()vemment
h a speeHilc party or..p.w.es .. o,:-errunentQQ.ntm. ) at
the ttme It was sopendmg, may not, for two 'years after te matlon of government
make any communication.to, or app' teo any .officer Qf
employee of1he United with the intent irifl:nence,. uch or in
connection with"such matter, on beba'Jfofany.perlJOt:I other the Uni,ed States.
4. Definili.mm. l!ereDsome key dermirlons applicable'to lS'USP207:
,
a. The term means arf,3.cti(m taken as an or employee through
decision, approval. diSapproval, recommendation, the 'of advice,
or other such action. 18 USC 207(i)(2). !
b. The term matter" includes 'any. request for a
ruling or determination, r:ulemakmg, contract, controversy,. blaim, charge, accusation,
arrest, or ju<!icial or other proceeding. 18 USC 2{)7(i)(3). . J
c, "An employee oan participafe 'personally' in a matter evtn though he merely direQts a
subordinate's participation. He participates Jfhis: involvement i"s of .
significance to the matter. while a series involvements may be.'
insubstantial, participation.in a single critical step may be or
Government Ethics (OOE) memorandum, Summery of Restrictio:os
of 18 U.S.C. 207,"'February 17. 2000, page 4 to B$ "OOE memo")] .
d,l'Officiai responsibility" is tletined as "the direet adininistrati.ve or operating
whether inte'nnediate or final; and eitherexetcisable alone qr' with othe1'$".and either
personally or through subordinates. to disapprove,i,Qr direct
Government action}' 18 202(b). .fU1 in.$taU\ltioD
commander wc>:uld generally have all other
particular matters pending at that I
"The of anetnployee's official responsibility is'usually deterjnined bythose 'areas' assigned
by statute. regulation. executive order, or job description. AU matters under
cOnsideration In an agenc.y ure the official responSibility of'me agencr head, and each is
under thatof any intermediatelJul'ervisor haviDg responsibility for the. 'actlvJties of a suboniinate
employee who actually panicipates in. the matter. An employee's ousalfromor other ,iloil
partic.ipation in a matter does not remove it from .his official respotibility, A matter was
'aotually'pending" under a former employee's official responsibili lfthe m,attetwas in fact
referred to or under <:onsiderntion by persons within the area ofresponsibiU'ty. A
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fonner employee is not subject to ihe restdetion, bCWi.evcr. llriless e'timt of the proposed
representation ofanother he knows or reasonably should know tha, the' mat,terhad been, under his
official responsibility during his last year ofGovernment j" tOOE pages Sw6]
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S. the ." . 07 a . cnt ". 0) Re "c " The-OCR cKpounded
uPon what representational activitIes' are prohibited by' 1:8 USC 20" (a) in lUI lnformal Advisory
Opinio;n (99 X 19, dated October 29. 1999). 'That case involved a $oventrl'lent wh()
was the contracting a 70 million doUal oonstructiotlconUract. The contractor filed a
large volume of ol'aims against tM government in connection with Jhe con,tract. The. contracting
officer retired from govermnent service'. Since the contracting offiper had participated
personally and substantially in theoomitruetion contract. t1Ii reprcsentationban' sWUed
to her rogarding thecontrnct. The' government agency that had thejeonS1r'uctiob contract also had
a contract wi.th a cansulting company tor support of the involving the
construction contract. i
The former contracting officer did not-wMt to go.to work for the been
awarded the construction contract and that had med the claims. R4ther. she wanted to go to
work forthe consulting company and help the the claims, The fpnner
contracting ofUcer- asked the Offioe ofGovernment Ethics (OGB) (or advice on.whether she
would vi9late 18 USC 207 if she went to work fQr the litigation contractor and help the
govemtnent.r-esoIvc the contract claims. She'contended irt communications and
appear.arwes'in connection .the contract, she would be acting ?p behalf of thegovernmertt '
and.as a result, her commUlUcatlOUs and appearanoes wO\l14not. 18 USC 207.
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:R<r\"fever. the OG.E CQDQ!Uded that eqIplpyrrn;nt by tao. fi;lnnorcontrQCling otL'icer
would vio:late the lifetime representation. ban. The OOE Stilted th communications and
appearances s.he w-ould berequire4 tQ make. to the Govemment wo ldalso be made to advance
her employ.er's business ari!:ling frOll1 its consulting' contra t with. [the agency]. For
we cannot say that [the former employee] shares an identit*'of interegts with [the
or that her 'sole function' as an employee of [the consulting compab1yJwould be.to sppport [Ihe
agency's] interest in thecQntr8Ct cla.ims." .1
The"consequence ofOGE Infonnal A.dvisory op.tnion 99 X 19 is gtrvernnient asencies will
sometimes be precluded by J8 USC 207 ftom obtaining assistance' om former government
employees' who leave government servi<:e and take with them val ble
experience. I
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6. Cgnclusjon Ng,miing J8 USC207(a,). The facts contained in Y4ur letter suggest that the. post
government employment restrictIons of'lS USC 2U1(a) will apply you with respect 10 y.our
contemplated employment. For example, there were' anumber involving specific
parties In which you' were personally and subBtanJiaJ1yin"'o{ved wlth the government. You
should never undertake any duti'es back to the gclvenu'nent tbltt may invQlve
those particularmattets; There were, al!lo' number Jnvolvins specific. parties pending
'youn)fflcial responsibility during yoUr lastyeat of govemmdnt sen1ce. As a result, the
two;"year representation ban. applies-to you. regarding these tnateers.
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7. QUid.a.Dgq on C2mplying with th.e represemati91\ bans.. Here i.s spme guicltmce 011 what is and
is not prohibited by the lifetime representation ban ofsectlon 207(,)(1) and the two-year .
representati.on ban of section 207(a)(2). The scope of the two barilj is tbe same. The only
difference is their duration. i .
a. of thC,!.g2resentation }mm. The Qffice ofGovern111ent EthicS has 'stated:
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Moreover, the restriaion [Le.,lifetime representation ban.ahd the two-year representation
ban} prohibits. only those and appearantesfihat are.:madc"with the intent
to influence:> A j"communication" can he made orally, in Writing, or through electronic
An "appefmlllce' extends to a-fonner mete physical,presence
at a proceeding when the circumstanoes make it. clear that ffis is inteneJed t.o
influence the United States. An'jntent to the Uhited States may be fo-und if
the .cortU'i'lunicaticin or app'eatance is made for the purpose qf seeking.a. discretJonary
Government ruling, ap.proval, or other action, or is for the purpose of
influencing Govein.n:tent in conneCtion with a the. fomter employee
knows involves an appreciable element :of dispute coneetni#g' the particular Oovernm.ent
action to be taken.. Acco.rdingly, notappLy to an appearance or
communication involving purelY. social -Jror 'available
documents, or a request for purelyfaetuallnformanon supplylng.ofsuch
information. [OGE memo; page JJ!
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b. I,tjA fonner employee is not 1#ohibited by this' restriction
[i.e., the lifetime representation ban and the'two-year r.epreseniration ban} nem provic1itig
assistance in connection with the represe*ation of-another person."
[OOE ..mema, page 3)
c.. ({2m Q9J;; regy.l11i2D. Here'is some guidance tID OOE regulation onthe
awHeatio:n ofth.e lifetime representation bal!. j
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Exmnple 1; A GQvernment croployee, whoparticipated in the 'specifications ofa
contraet awarded -to QCompany fat the design of certain .testing: programs,
joit)S Q Company and .does wotk:under the contract. She isl asked, to aocompany a
company vice--prefiideDt to the re.!!iultsof series of trial tests, and does
so. No violation occurs when she provides the information Ito her former 'agency. During
the meeting 8. dispute ariseS as to so:me tel1'll.8. of the contract, and she. js ealled uPQn to
support Q Company's' pos.ition. Shemay not do so. Ifshe had,reason to believe that the
'contractual displite would be a meeting, she'should'IH)t have attended. [5
.CFR 2637.201 (b)(S)(Example)] ! .
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d. PrQhibiteg appearances. You may not attend any meeting orcontractor and government
personnel where th.e subject of the meeting is a disagreement qr dispute between the
contractor and the i.e., where the m.eeting will is likely to be,.adversarial
in nature. .Further, you may not attend anymeetinQ of contra<: or and government personnel
if the subject ofthe meeting involves the seeking ofany dbcf ionary action by the
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go\remment Bngineering. Change a 'il oor an equitable adjustment. or
a contract clalIn agaInst the government).
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e. !mpea.rances. Youmay 'attend any meeting of and government
personnel, other than the type of Ineeting described above as aprobibited You
are not pf(!)hibited appearing at a -tri.;!l or hel:U1ing in connection with
contraot, if"you"Will be ui:l.der oath or makin4 Statements r.equired to be
. Olade under penalty ofper.jl'l1'Y. I
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CCllmmwicatioN. You may not communicate go:vemment employees;
present or,ac,t as the spokesperson or
In conne'CtJon With a dIsagreement or dIspute the contractor and the
govenunenl, i.e., in connection with a matter that is adversarial in natnre. Further, you may
not communicate with government employees jf the subject of the communication involves
the seeking of any discretionary a-etlan by the government (e,g'Jan Engineering Change
a request for an contract qlmm the
This apphes to all means of communlcatloD, mcludrng persont..l,conversatl.ons Wl'th
govel1U1'len.t employees, oonversations with gov.emrhen.t employees. meetings
with government employees, and written,or nden'oewith governtnent
:employees or 80'encies. ,
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g. communicatiOOIi. You may communicate with employees in
connection with all routine;. non-adversarial matters related to
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ithepel'fdrmance 'of the
contract. For example, you may supply
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to govemmentemployees purely factual
infonn:ation concerning-the c,onuet 10 whiehlheban applies (e.g., 'an Infotmational
,briefing). You may also request flom' government employees:purety factual irifo,rmation .
;conceming the contract to wbicl1 the'ban applies. In shortt you commu.nicate with
government emp.loyees on anY'niatter COJicerriing'the contraotlto whiCh the 'ban tlppJies,
except fOT those commulli<:a!i<>ns that are described 'abo'Ve'llS 'communioations.
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B. Oiio;dutx Etnn1=:::::nt. You have infonned me that you do: oot for the
Kb)(6) _ Iprior to YOiJ.r offici81re$ignation frorrl the Air Foree. Nevertheless,
pJe.ase be aware that 18 USC 203 and 205 prohibit military officers Qnd Federal civilian employees
from representing contractors or other nonFederal organizations bef0re any Federalllgency. This
. rule applies'to Federal civilian employees on leave. Therefore, Fedetlallaw prohibits you from
engaging in any such representation in ,an offduty capacity. desire to engage in Qif.
dU:ly'emplQyment, you would:also be required.,'to complete an A.',pplic tion:.and A.PprOVal for Off
Duty EmploymentCAF Fonn 3902.) and should. request to be disqual' edfront ,performing ,any
government dUties invohl'mg )(6) Iprier 0' beginning,your off;,duty
emp'loymem: them. . i
9. MMlatO!'y diselaltner. Be advlsed'that the Department ofthe,.J Force does not have,authority
to issJ,le a\rtllontative opinions on the reattie-lions, CQJltmned in TItle '18. of1he United States Code.
The sections ofTitle 18, are Federal rbninal smtutes. the'ioterpteta.tiqn ofwhicb falls under the
jurisdiction ofthe Department ofJustice. Aocordingly. JOd should that opinions we:may
render on the specific ,applicatiori ofse-ctionsofnde 18 11.nmot binditg on the Department of
Ju$t1ce.
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10, Ifyou have 'any q,uestions. please caU
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Cbl(61 .... J at _
Sincerely.
b)(6)
Staff Judge Advocate,l (I
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OEPARTMENT OF THE AIR PRCE
AIR FORCE ""ATERIEL COMMAND LAW' OFFICE CAf'MC)
WRIGHT-PATTERSON AIR FORCE BASE OHIO
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18 MAY
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AFMCLOICL
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Building 15, Rm t 30
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1864 4
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Street
WrightPatterscm Me'fOR 45433..1135
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Dearl

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This letter is provided in.response to your recent reque$t for an irnthoritative inlerpcetation of
the application ofSection 423 ofTitle 41. United States Code and as .required under Section 847
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Public Law to yotlr as lU'l official of DoD. Brie.fly. 4] USC 423 certain
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former employees from accepting compensatioll fronl a coptraetor tor a period of one year if they
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semd in cert.atnpositions or made certain decisions in conn.ec:;'.tion with acontract awarded 10
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that contraeto!".
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Under this statute Designated Agcnt;;y Ethics Officia.ls their (lclegatees !lave the legal
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authority to tender authoritative opinions the app.lieabllity Qf the stRlute U'l
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acceptance of compcnsDlia:J1 from conlrnctors. Bas..cd on the lo.(Qml811on received from
you, it is my'opinion tbat prohibits you from accepting c<JIUpensat{on 1
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Ias an employee, officer. director, orconsultanL Compensation rnoans wages, salaries,
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honorari.a, commissions, ptofessi(mal fees, and any other fann ofcompell'Sation. provided
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directly or indirectly for indirec.tty provid\1;d if it is paid to llL}
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entity other lhan-the hldiVirlual, &pec.ifieally in exehnn:ge for services provided by the individuaL
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The restl;ctioll wiH last-for one .yea:r beginning 131an 09. Thinestnotio.n does not prohibit you
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from accepting cQmpe",sation from a divisio.n or affiliate oa
b
)(6) . Ithal does not
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produce lhe same or .stmilaf products or services as the entity ofNorthro-p G-rumman that is
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responsible fanne co.ntract with you are connected. lnthl)event you want to work for
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anolher'division, you should ask for another opinion regarding that divhdoll.
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It is further my opinion that the statute would nOi restriet.you from acoepting compensation
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from ilnyother contractor.
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Be advisedlhat empldyees- having duties jnvolvlng a company be disqualified. fl'01'11 alJ
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such duties. includingdeclsion milking, rendering advice, making recommendation$, and
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monitoring eontraeto:- activities, before they begin to seek employm.cnt with thal company.
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Cunentgo:vemtnent employees (iooluding dtCse, lU a tertniIialleJive stat'!Js) are generally
p-rohibi.ted by 18 USC 2031205 from rep:resenting..(tbrough commuo,icatiOl\ or appeara'oec}olher
individuals" companies
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or non.;foderll'l cl'ulti$S be(()fe ft1lY,E_alagcl).!!. In addition. the DoD
General Counsel's office issued guJdalloe 18JJSC 2!X}a05 makes it imai'Uilil" for
to \Nor1\; f}\r f! .(lJiing while Oft-leave .
11:0 [11
This opinion addresses only res-lrie:tions tl;lal rnayapply nuder 41 USC RestrictionS
under oUter laws (e.g., 18 USC 207) have not bCcl'l.addressed in this opinion. In,pa.rticular, Ule
facts tootained in y.ou,r letter 'suggest 'tbat the post-government emp.lO,ymeilt restric.tions of
Title 18, United States Code, Section 201(8)(1) and/or Section 2.07(a)(7.) may apply to y()U
with respect to your cODtemptated empJoyment with some eompAwes. TheaUached
pamphlet is an explanation of 18 USC 201, For further information or assistance in detennining
what other restrictions may appLy, please contaet Kb)(6) lof our organization at.
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)(6). I
Sincerely
b)(6)
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1. Y'our UrJ_
b
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2. 18 USC 207 Pamphlet
OJrec.toJ"
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DEPARTMENTOF THE ARMY
OPPleSOF TJ1E GENERAL COUNSEl.
104 ARMY PENTAeON
WA.SHINGTON DC 20310-0104
"1Il1 24 v' .-,..
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Re: Post-Employment RestrictionsfSeetion 847
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This letter Is an addendum to the previous letter I provided dated May 13; 2009,
covering your current employment with Kb)(6) " I
You called me on November 12 and stateq that b)(6) was
interested in discussing possible employment with you. b)(6) of course. Is a
Defense contractor, and the reqUirements of section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) remafn applicable because you
are within two years of leaving your DoD position.
b)(6) you recused yourself from taking official action in your Government
position with re ect to certain entIties with which "intended to pursue employment
discuSsions. b)(6) was one of those entitles. and in your file, we have recusals
includtng b)(6) dated I
You provlded,me IDescriptfo"rl
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for this POSIUOIi, which I am
includino verbatim: I
b)(6)
You indicated to me that YOU did not participate to your knQwled-g'e in any
partlcular matters invotving Iwhile you " I During the time
period" after you signed the recusal memorandums and before you terminated that
posl1ion, you ensured that no matters )(6) "I came to yOU for official" action.
2
Based on your representations to believe there are two
restrlctlo.ns In my May 13. 2009 letter applicable. to this prospeetlye
employment JThe one-year "cooling-off' period. Title
18, U.S.C. section 207(c). which remains applicable to your representation of any' non
Federal entity'on any matter befote an Army emplo:ee. activity. o,r agency. Your one
" year c.ooUngoff pertod terminates on J 2) You should. remain sensitive to
the two-year baM on representing another to the Government on a particular matte-r
underyour official responsibility during xour last year of Government service. I am
aware of no particular matters Involving Ias'a party whIch were under your
official responsibility. If any such matter comes to your attention, you should discuss It
with this office before undertaking representation of b)(6) before the Govemment
on that particular matter. The two-year ban terminates on )(6)
L-- ------'
None of the other restrictions hoted in my May1.3 letter appear to be applicable to
this potential employment. If you believe any of the restrictions may become applicable
in the future. please notify this .offlCe for analysIs and further advice.
Sincerely.
Deputy General Counsel
(Ethics &. Fiscal)
.,' ":.i. t ,",
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OEPARTMENT OF THE ARMY
ClFFlCE QF Ttle. GENERA'" COUNSEL.
104 ARMY PENTAGON
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WASHIN;tOlfDC 20310"0104
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Re: Post-Emptoyment Restrictions
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This letter is an addendum to the previous letter I provIded dated May 13, 2009.
covering your current employment with I
You'sent me an email on November 30 indicating that you are interested in
pursuing employment wi.th the firniKb)(6) . 1 You indicated ou would serve
in two capaclti'3s. and 1here uote from OUr email:' b)(6)
Sales; and b)(6)
Your email ooes on to I
b)(6)
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You stated that you had no busIness deali" '5 with b)(6) while you
. lor b)(6) . . was not in a contractual
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relationship with the Army on any matter under yauro.. rrSPfnSibility durin your
last year of Government service. The .ro osalto team with b)(6to assist b)(6)
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b)(6) Iwith an b)(6) in
b)(6) lwould be a new 'particular matter not in existence during your ttmure in
b)(6) I
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. Therefore, the only remaining clear restriction on your activities
on behalf ofKb)(6) li.s the one-.:year "cooling off" pertod, 18 USC 207(c},
whICh remains applfcable to yOur repres.entation Of any nonFederSI entity on any matter
before an Armv employee, activity, or agency, Your oneyear cooling-off period
terminates .' I
You should remain sensitive to the two-ye-ar ban concerning, matters under your
official responslbJllty during your last ear of Govetnment service, 18 USC 207(a)(2).
,As there were no matters involving b)(6) under your official responsibility,
. It is unlikely that this restriction will app lea e. any such matter comes to your
attention, you should discuss it with this office before undertaking representation
Ibefore the Government on that particular matter. The ban
termInates on I .
None of the. other restrictions noted in my May1,3letler appear to be' app.llca,ble to
this potent1al employment. If you believ.e any ofthe restrictions irla,y become applicable
.in the future, notify this office for analySis and furtner advice.
Sincerelyr
Deputy.General Counsel
(Ethics & FIscal)
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DEPARTMENT OF THE ARMY
OFFICE OF ntE GENEFlAL COUNSEL
104 A.RMY PENTAGON
WASHINGTON DC 2D310.()1Q4
May 13,2009
Re: Restrictions/Section 847
e-
b
)_(6_)_----.l
As you intend to terminate DoD service on I we are p!rovlding you
wIth this opinion concerning your post-employment activities wtth your prospective new
Ie Defense contractor. I understand
. that you expect this to b,a a temporary position. pending more permanent employment:.
There are a number of restrIctions applicable to your post-Government
employment 'want to emphasize reCent restrictions imposed by section 847
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L 110-181).
Certain current or former DoD offiCials, who within two years of leaving DoD expect to
receive compensation from a defensecontractQr, must request and receive a written
opinion regarding the applicability of postMemployment restrictions to activities that
official may undertake on behalfof'a'defense contractor before receiving pay. It appUes
If you are a current Of former DoD offIcial who participated, personsnyand substantially
in an 'acquisition with a value in excess of $1 OM serving in: (1) an Executive
Schedule position; (2) a Senior Executive ServIce position; (3) a,general or flag officer
position: or (4) In a position of program manager, procuring contracting officer,
administrative contractl.ng officer, source se.lectlon'authorlty, member of the sour<:e
sel$otion evaluation board, or chief of a financial or'technical eval"uatlon team.
You served in one of these covered positions, that is he Senior E)(ecutive
Service position. and you perssnany and substantially acquisition 'Ilfe
cycle of an acquisitiOn valued in excess of $1 OM. This is the
explained in greater detail herein. Accordingly, you are, required to receive an ethics
opinion that addresse1ost-IGovernment employment restrtctionsas th.ey pertain to
your employment wtth b)(6) , .
My advice with respect to these matters is advisory only and Is provided in
accordan.ce with section 2635.107 of Title 5, Code of Federal Regu[atio.ns. I am
providing this advice in my official capacity, on, behalf of the United States. and not as
your representative. Neither the information you provided to receive thIs advice lattar.

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