OFFICE OF GOVERNMENT ETHICS

                          86 x 13

Letter to a Former Government Employee dated September 11, 1986


     This is in response to your letter of June 19, 1986
requesting an evaluation of a post-employment situation involving
a potential conflict of interest.

     You have stated that from 1973 until March 1986, you were
employed by a Government entity as the GM-15 Director in one of
three directorates into which [the agency] is organized.  Although
[the agency] was administered by [a specific executive branch
Department] under a delegation of authority from the General
Services Administration (GSA) from 1972 until September 1985,
since September 1985 [the agency] has been administered by GSA. 
Before you left [the agency] in March 1986, you participated in a
review of a Request for Proposals (RFP) that was issued on
April 8, 1986 and had a closing date of May 12, 1986.  Since [the
consulting firm you formed upon leaving the agency] has submitted
proposals in two of the Areas of Expertise listed in RFP, you are
concerned about whether you will encounter post-employment
conflict-of-interest problems.

     We have concluded that you are not precluded by any provision
of 18 U.S.C.  207 from making representations to [the agency] in
response to the RFP.

     Under the post-employment statute at 18 U.S.C.  207, there
are two restrictions which potentially apply to limit your
activities, since you are a former executive branch employee who
was not a Senior Employee.  You are prohibited from representing
any other person by appearance or by written or oral communication
to any Department, agency or court of the United States or
District of Columbia, in connection with any particular matter
involving specific parties in which the United States or District
of Columbia is a party or has an interest.  This prohibition on
making representations applies under section 207(a) for the entire
lifetime of matters in which you participated personally and
substantially while with the Government, and under section
207(b)(i) for a period of two years on matters which were pending
under your official responsibility during your last year of
Government service.

     It is our opinion that section 207(b)(i) does not apply to
you in this particular situation and that we thus do not need to
address the official responsibility requirement under section
207(b)(i).

     It is our further opinion, however, that section 207(a) does
govern your situation. Therefore, under section 207(a) we must
address the following issues:  (1) whether you personally and
substantially participated in the RFP and (2) provided that you
personally and substantially participated, whether the RFP
involved specific parties at the time of your participation.

     We have determined that your review of the RFP did constitute
personal and substantial participation in the RFP.  We believe
that this review was substantial, even though, as you stated in an
August 5, 1986 telephone conversation with our Office, your review
focused on one paragraph of the RFP in order to make whatever
changes were necessary so that the document accurately reflected
the role of your directorate and even though you spent a limited
amount of time on the review.  It is undisputed that your
participation in the review was personal.  

     Regarding whether your participation was substantial,

     [If] [an] employee reviews a matter and passes
     it on, his or her participation may be
     regarded as "substantial" even if he or she
     claims merely to have engaged in inaction.

The standard of conduct regulations further clarify what amounts
to "substantial participation" in your case, since you as Director
were charged with responsibility for review with respect to the
RFP's portrayal of your directorate.

     To participate . . . "[s]ubstantially"
     . . . means that the employee's involvement
     must be of significance to the matter, or form
     a basis for a reasonable appearance of such
     significance . . . .  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 participation
     in a critical step may be substantial.

And, further, according to the regulations:

     "Personal and substantial participation" is
     different from "official responsibility." 
     One's responsibility may, however, play a role
     in determining the "substantiality" of an
     employee's participation. For example,
     ordinarily an employee's forbearance on a
     matter is not substantial participation.  If,
     however, an employee is charged with
     responsibility for review of a matter and
     action cannot be undertaken over his or her
     objection, the result may be different. If the
     employee reviews a matter and passes it on,
     his or her participation may be regarded as
     "substantial" even if he or she claims merely
     to have engaged in inaction.

     The fact that you participated personally and substantially
in the review of a paragraph of the RFP means that under 18 U.S.C.
 207(a) you participated personally and substantially with regard
to the matter of the entire RFP:

     We must emphasize that to fractionalize a
     specific contract and say that a former
     employee is barred as to representation on a
     particular clause or amendment but not as to
     other clauses or provisions contained therein
     is not consistent with the law or common
     sense.

     Central to our overall conclusion in your case is our
determination that although when you reviewed the RFP in 1986 you
were involved with a "particular matter," it was a "particular
matter" distinct from that of the 1983 RFP and resultant
contracts.  This is critical to the outcome because we understand
that no specific party became identified to the 1986 RFP until
responses were received on the closing date, nearly two months
after your departure from [the agency].  As described in your
letter to our Office, in 1983 RFP's were issued which resulted in
contracts being awarded to certain contractors, which contracts
were for a base year with two option years, with the overall
three-year period ending on June 15, 1986.

     We have concluded that the 1983 RFP and contracts constitute
a different particular matter than the 1986 RFP and contracts
based on the following factors.  The 1986 bidding package was not
geared exclusively toward the 1983 group of contractors.  In the
1986 contractual process, there were no presolicitation letters to
establish interest on the part of previous contractors.  The 1986
contract rates were not predetermined so as to favor previous
contractors prior to the competitive bidding process.  While the
1986 and 1983 contracts contain identical objectives, the RFP for
the new contract contains a more elaborate work statement owing to
[the agency's] increased awareness of its needs for support
services.

     In summary, at the time you personally and substantially
participated in the 1986 RFP by reviewing its portrayal of [the
Directorate's] capabilities, no specific party had yet become
identified to the particular matter of the 1986 bidding process. 
Consequently, under 18 U.S.C.  207(a) you are not barred from
responding to the 1986 RFP.

                                Sincerely,

                                David H. Martin
                                Director