B.  Contractor Identification of "Covered Officials" and "Particular Matters"

Comment: One respondent stated that "identifying which job applicants are 'covered officials' is not trivial." This respondent explained that "resumes are often tailored to the job being sought: Certain items are highlighted, others omitted entirely. Consequently, while it is usually simple to tell if a potential candidate was a 'senior official,' it is often difficult to identify if he or she was an 'acquisition executive'."

Response: The term "covered DoD official" is defined in DFARS 252.203-7000(a) as an individual who "left DoD service on or after January 28, 2008," and either "participated personally and substantially in an acquisition as defined in 41 U.S.C. 131 with a value in excess of $10 million" and who served in specifically highlighted positions or served within DoD as "program manager, deputy program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team for a contract in an amount in excess of $10 million." Contractors need to seek clarification with job applicants and employees as to whether the applicant meets the DFARS definition in order to ensure employees are in compliance with DoD post-employment restrictions.

Comment: A respondent highlighted potential difficulties in identifying "particular matters" on which the job applicant worked. The respondent stated that ethics opinions rarely identify the "particular matters" upon which the former DoD official worked and to which post-employment restrictions apply. The respondent concluded that failure to identify "particular matters" is "a significant problem for individuals (and their employers) whose government portfolio was substantially broader" than simply working on one program during their Government career.

Response: It is not feasible or practicable to expect that a Government ethics official list all "particular matters" for a Government employee. The most likely, and probably only, source for this type of information is the Government official requesting the post-employment restrictions opinion from the ethics official. Failure of the Government employee to provide a comprehensive list would inappropriately limit the scope of the ethics opinion to those items listed. The former Government official is in the best position to (1) recall the particular matters that he or she worked during his or her Government tenure and (2) advise future employers of his or her involvement in "particular matters" when the employer provides work assignments. The Code of Federal Regulations contains a definition of "particular matter," as well as examples of what a "particular matter" is. The examples provide guidance for the types of situations and circumstances covered by the term. It is unrealistic to expect a finite set of examples listed in the regulations to cover all possible circumstances and situations that could arise regarding what constitutes a "particular matter".