Ethics Precedent Explained

Former feds might have an easier time working for the government as contractors. That's because of a recent court decision that might allow them to contract on the same projects they worked on as government employees. But, as always, there's a "but."

Christopher Yukins, an Associate Professor of Government Contracts Law and Co-director of the Government Procurement Law Program at the George Washington University Law School, tells The Federal Drive's Tom Temin and Jane Norris that this a "major" ruling.

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The case is called "CNA Corporation" and it involved an employee for NIH who was involved in a long-term study, and in a nutshell, there was an ethics decision that (said) when she left the government, she couldn't be involved in a procurement that involved the same NIH study.

There were two layers to the process: the first one was the ethics decision, and then the contracting officials who were running the procurement - they relied on this ethics decision without really carefully probing it. And the judge said no, that's not acceptable. The judge said the procurement officials had to go back and had to revisit the ethics decision to see whether or not she was fairly barred from ever participating in this procurement.

The judge put it in very dramatic terms. She said, in effect, if the procurement officials' decision stood, if it hadn't been challenged, if it hadn't been revisited, then for a generation this particular official would have been barred from participating in the study in any way. The judge thought that was unfair and unwise.

Temin: Because federal employees that leave - they retire or they go out of the government - very often go to contractors, and I think their assumption is, and this is the rulings they're used to is, you can't go back to your former agency I believe at least for a year. In fact, you're not even allowed to negotiate with that contractor for a job until you have formally given your notice of leaving. So does that change?

Yukins: No, that's a very important point, Tom. The rules haven't changed. I really want to emphasize that point: the rules haven't changed. What has changed here is the process, and in some ways the ways one would think about the process.

In a nutshell, what this decision means is that we won't accept the decision of an ethics official as the absolute last word; that a judge is willing to second guess the decision of an ethics official, but that's actually... in a funny way that's not new.

Historically, when we went the other way - if an ethics official said 'Ah, it's okay. This employee can go work for this contractor,' well that decision could be second guessed by a prosecutor. A prosecutor could still bring a prosecution, a criminal prosecution, against that employee. So there's always been second guessing.

What this decision means is that as employees move into the contractor workforce, the ethics decisions that would normally bind those employees may be second guessed by a judge. But I should emphasize: this second guessing is a very expensive process. This litigation probably cost tens, if not hundreds of thousands of dollars for the contractor. This case is the exception, not the rule.

Norris: And so as you look at other federal employees leaving government service, going into the contracting business, and thinking about doing business with their ex-employer, do you think companies will be likely to stick with what they already know or be willing to explore new territory because of this decision?

Yukins: I think given the cost of challenging an ethics decision, companies are not likely to radically change their process, and it's important for employees who are thinking about leaving the government to understand that there's a very, very carefully developed process. Some of this, frankly, is not in the rule books. This is just what exists in the industry.

What employees can anticipate, and especially employees who are working in the procurement workforce: they should anticipate that before they have any employment discussions with a contractor, that contractor will proffer to them a very detailed questionnaire about what they're doing and what they've done in the government, and one of the first questions in that questionnaire will be 'Have you gotten an ethics decision? Have you gone to an ethics official and gotten an ethics decision?' So they should plan very early on to visit an ethics official and get that ethics decision.

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On the Web:

US Court of Federal Claims - The CNA Corporation v. United States (pdf)

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