3.101-3   Agency regulations.

All transactions that involve the expenditure of public funds require Agency personnel to adhere to the highest ethical standards to protect the public trust. DoD Directive 5500.7, Standards of Conduct, and DoD 5500.7-R, Joint Ethics Regulation, provide extensive Departmental guidance governing this area. Agency personnel shall:

(S-90)  Avoid any action, whether or not specifically prohibited by statute or regulation that might result in or reasonably be expected to create the appearance of:

(1)  Using public office for private gain;

(2)  Giving preferential treatment to any person or entity;

(3)  Impeding Government efficiency or economy;

(4)  Losing independence or impartiality;

(5)  Making a Government decision outside of official channels; or

(6)  Adversely affecting the public's confidence in the integrity of the Government.

(S-91)  Avoid conduct that favors a particular contractor. Procurement officials (see FAR 3.104-4) shall operate in an impartial and objective manner throughout the acquisition cycle. Contracting officers shall be free from any exertion of influence to award contracts to or place orders with specific contractors. Promptly report any instances of suspected ethics violations, including the exertion of undue influence to the Agency ethics official or other appropriate channel (DoD 5500.7-R, Joint Ethics Regulation, section 10-200).

(S-92)  Ensure the existence and practice of adequate controls over the separation of functions. This includes controls to ensure that a single individual performs only one of the following: initiates the requirement; awards the contract or places the order; and receives, inspects, and accepts the supplies or services. If circumstances preclude such restriction, the person who makes the award or places the order shall not also receive, inspect, and accept the supplies or services.

(S-93)  All personnel who participate personally and substantially in acquisition or contracting activity are required to fill out a OGE Form 450, Confidential Financial Disclosure Report. This disclosure helps to ensure that personnel working on acquisitions do not have financial conflicts of interest.

(S-94)  The disclosure forms are used by the Agency to determine if a conflict exists for those individuals participating in acquisition or contracting activities. During the course of an acquisition or contracting activity, contracting officers shall identify the participating individuals. Contracting officers, using this listing, shall submit a request to the GC for a review of the individuals' financial disclosure forms. If an individual is not an annual filer, then the individual shall be required to file an OGE Form 450. The GC shall work with an individual to resolve any conflicts.

(S-95)  A financial conflict of interest while performing acquisition or contracting activities could result in personal criminal liability. Although a Government employee's holdings may not reach the reportable threshold on the OGE 450 or the SF 278, Public Financial Disclosure Report, the law applies to any financial conflict of interest, no matter how small the value.

(S-96)  Acquisition or contracting activities include: drafting, reviewing or approving a specification; drafting, reviewing, or approving a statement of work; preparing or issuing a procurement solicitation; preparing or developing a procurement or purchase request; negotiating to establish the price or terms and conditions of a contract or an out-of-scope contract modification; evaluating bids or proposals; selecting sources; conducting negotiations; or reviewing and approving the award of a contract or contract modification, and certification of funds and invoices. 41 U.S.C. 423(p)(3)(A).

(S-97)  Aside from an employee's personal holdings there are three other ways in which a Government employee may have a financial conflict of interest. First, the holdings of an employee's spouse, minor child, or general partner are imputed to the employee. Second, service of a Government employee as an officer, director, trustee, general partner, or employee in an outside organization could constitute a financial conflict of interest. Third, negotiating or having any arrangement concerning prospective employment may create a financial conflict of interest.

(S-98)  Contact the Regulatory/GC's office concerning questions on this issue.