Financial Conflicts:
18 USC Section 208

Government employees included in an A-76 study, and providing support to the A-76 study effort, may be considered either procurement officials or having a financial interest in the outcome of the study.  Either would preclude them from employment on the potential contract. The following provides guidance to determine if such may be the case in your situation.  To be included as a "procurement official" or having a "financial interest," you would have to be considered having personal and substantial participation in the study effort.

A. Personal & Substantial Participation

  • Personal = Direct or by active participation
  • Substantial = participation significant to the particular matter
  • A-76: participation in management studies, preparation of in-house cost estimates, preparation of most efficient organization analyses, furnishing of technical data or support to be used by others in the development of performance standards, statements of work, or specifications would not be considered as "personal and substantial."

B. Procurement Official.  Includes providing information for use by the Government in evaluating a bid or proposal to enter into a federal contract that has not been previously made available to the public, such as:

  • Developing bid prices / lists submitted
  • Estimating proposed contract costs / prices
  • preparing source selection plans
  • preparing technical evaluation plans
  • technical evaluation of proposals
  • cost / price evaluation of proposals
  • competitive range determinations
  • proposal evaluation rankings
  • reports / evaluations of evaluation, boards, or advisory councils

C. PERMISSIBLE CA STUDY PARTICIPATION.  If none of the above apply to you, then you, if included in the A-76 study announcement, will be eligible for potential contract employment.  For more specific information on this subject, I have provided excerpts from the Federal Acquisition Regulation (FAR). Important portions are italicized.

From the Federal Acquisition Regulations:

3.104 Procurement integrity.

        (2) Section 208 of Title 18, United States Code, and 5 CFR part 2635 preclude a Government employee from participating personally and substantially in any particular matter that would affect the financial interests of any person with whom the employee is seeking employment;

 3.104-2 Applicability.

        (a) The restrictions at 3.104-4 (a) and (b) apply beginning January 1, 1997, to the conduct of every Federal agency procurement using competitive procedures for the acquisition of supplies or services from non-Federal sources using appropriated funds.

 3.104-3 Definitions.

"Participating personally and substantially in a Federal agency procurement" is defined as follows:

    (1) "Participating personally and substantially in a Federal agency procurement" means active and significant involvement of the individual in any of the following activities directly related to that procurement:

            (i) Drafting, reviewing, or approving the specification or statement of work for the procurement.

            (ii) Preparing or developing the solicitation.

            (iii) Evaluating bids or proposals, or selecting a source.

            (iv) Negotiating price or terms and conditions of the contract.

            (v) Reviewing and approving the award of the contract.

     (2) "Participating personally" means participating directly, and includes the direct and active supervision of a subordinate’s participation in the matter.

     (3) "Participating substantially" means that the employee’s involvement is of significance to the matter. Substantial participation requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. Participation may be substantial even though it is not determinative of the outcome of a particular matter. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. However, the review of procurement documents solely to determine compliance with regulatory, administrative, or budgetary procedures, does not constitute substantial participation in a procurement.

    (4) Generally, an individual will not be considered to have participated personally and substantially in a procurement solely by participating in the following activities:

            (i) Agency level boards, panels, or other advisory committees that review program milestones or evaluate and make recommendations regarding alternative technologies or approaches for satisfying broad agency level missions or objectives;

            (ii) The performance of general, technical, engineering, or scientific effort having broad application not directly associated with a particular procurement, notwithstanding that such general, technical, engineering, or scientific effort subsequently may be incorporated into a particular procurement;

            (iii) Clerical functions supporting the conduct of a particular procurement; and

            (iv) For procurements to be conducted under the procedures of OMB Circular A-76, participation in management studies, preparation of in-house cost estimates, preparation of "most efficient organization" analyses, and furnishing of data or technical support to be used by others in the development of performance standards, statements of work, or specifications.

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