FAR 3.104-6—Ethics advisory opinions regarding prohibitions on a former official’s acceptance of compensation from a contractor.
Plain-English Summary
FAR 3.104-6 explains how an official or former official can seek an ethics advisory opinion before accepting compensation from a contractor when there is uncertainty about the post-employment compensation ban in 41 U.S.C. 2104, as referenced in FAR 3.104-3(d). It covers who may request advice, when advice should be sought, what the written request must contain, what information the agency ethics official may gather or rely on, the timing for issuing an opinion, and the legal effect of relying on that opinion in good faith. In practice, this section is designed to help current and former federal personnel avoid prohibited compensation arrangements and to give contractors some protection when they rely on a written ethics opinion. It also creates a process for resolving close questions by requiring a complete factual record about the procurement, the individual’s participation, and the contractor involved. The section matters because it can prevent an inadvertent violation, but only if the requester provides accurate, complete information and the opinion is followed in good faith.
Key Rules
Advice before accepting pay
An official or former official who is unsure whether 41 U.S.C. 2104 bars compensation from a particular contractor may request an advisory opinion from the appropriate agency ethics official before accepting the compensation. The rule is meant to resolve uncertainty before the person acts, not after the compensation has already been accepted.
Written, signed request required
The request must be in writing, dated, and signed, and it must include all relevant information reasonably available to the requester. A casual inquiry is not enough; the ethics official needs a documented factual record to evaluate the prohibition.
Procurement and decision details
The request must identify the procurement(s) or covered decision(s) involving the contractor, including contract or solicitation numbers, dates, a description of the supplies or services, and the contract amount. This information helps determine whether the matter falls within the statutory restriction and how closely the requester was involved.
Participation details required
The requester must describe his or her participation in the procurement or decision, including the dates or time periods of involvement and the nature of the duties, responsibilities, or actions taken. The ethics official uses this to assess whether the individual had the kind of participation that triggers the compensation ban.
Contractor and affiliate information
The request must identify the contractor and describe the products or services produced by the division or affiliate from whom compensation is proposed to be accepted. This matters because the restriction can depend on the specific contractor entity and the relationship of the paying division or affiliate to the covered contractor.
Timely ethics opinion
If the request contains complete information, the agency ethics official should issue an opinion within 30 days after receipt, or as soon thereafter as practicable. The timing requirement is intended to provide prompt guidance so the requester can make an informed decision without unnecessary delay.
Fact gathering and reliance
If the request is incomplete, the ethics official may seek more information from the requester or other agency personnel, including the source selection authority, contracting officer, or immediate supervisor. The official may rely on the information provided unless there is reason to believe it is fraudulent, misleading, or otherwise incorrect.
Good-faith reliance protection
If the requester receives a written opinion stating that the compensation may be accepted and then relies on that opinion in good faith, neither the requester nor the contractor will be found to have knowingly violated 41 U.S.C. 2104. That protection does not apply if either party knows, or has reason to believe, the opinion rests on false or misleading information.
Responsibilities
Official or former official
Determine whether there is uncertainty about the compensation prohibition, request an advisory opinion before accepting compensation, and provide a dated, signed written submission with all relevant facts reasonably available. The requester must accurately describe the procurement or decision, personal participation, and the contractor or affiliate involved.
Agency ethics official
Review the request, ask for additional information if needed, evaluate whether the proposed compensation would violate 41 U.S.C. 2104, and issue a written opinion within 30 days after receiving a complete request or as soon thereafter as practicable. The ethics official may rely on provided information unless there is reason to doubt its accuracy.
Source selection authority, contracting officer, and immediate supervisor
Provide information when asked by the agency ethics official to help complete the factual record. These officials may be consulted to confirm procurement history, the requester’s role, and other relevant details.
Contractor
If it seeks to compensate a former or current official, it should ensure the individual has obtained and is relying on an appropriate ethics opinion when there is any question about the statutory prohibition. The contractor must not knowingly proceed on the basis of an opinion it knows or has reason to believe is tainted by false or misleading information.
Practical Implications
This section is a pre-clearance process: if there is any doubt, the safest course is to get a written ethics opinion before any compensation is accepted.
The quality of the opinion depends on the quality of the facts. Omitting contract numbers, dates, the requester’s role, or the exact contractor entity can delay the opinion or undermine reliance on it.
A written opinion can protect both the individual and the contractor, but only if they rely on it in good faith and do not know the underlying facts are inaccurate.
Agency ethics officials may need to pull in procurement personnel to verify the record, so contractors and former officials should expect fact-checking rather than a quick informal answer.
Common pitfalls include assuming a general ethics clearance is enough, failing to identify the correct contractor affiliate or division, and accepting compensation before the written opinion is issued.
Official Regulatory Text
(a) An official or former official of a Federal agency who does not know whether he or she is or would be precluded by 41 U.S.C. 2104 (see 3.104-3 (d)) from accepting compensation from a particular contractor may request advice from the appropriate agency ethics official before accepting such compensation. (b) The request for an advisory opinion must be in writing, include all relevant information reasonably available to the official or former official, and be dated and signed. The request must include information about the- (1) Procurement(s), or decision(s) on matters under 3.104-3 (d)(1)(iii), involving the particular contractor, in which the individual was or is involved, including contract or solicitation numbers, dates of solicitation or award, a description of the supplies or services procured or to be procured, and contract amount; (2) Individual’s participation in the procurement or decision, including the dates or time periods of that participation, and the nature of the individual’s duties, responsibilities, or actions; and (3) Contractor, including a description of the products or services produced by the division or affiliate of the contractor from whom the individual proposes to accept compensation. (c) Within 30 days after receipt of a request containing complete information, or as soon thereafter as practicable, the agency ethics official should issue an opinion on whether the proposed conduct would violate 41 U.S.C. 2104 . (d) (1) If complete information is not included in the request, the agency ethics official may ask the requester to provide more information or request information from other persons, including the source selection authority, the contracting officer, or the requester’s immediate supervisor. (2) In issuing an opinion, the agency ethics official may rely upon the accuracy of information furnished by the requester or other agency sources, unless he or she has reason to believe that the information is fraudulent, misleading, or otherwise incorrect. (3) If the requester is advised in a written opinion by the agency ethics official that the requester may accept compensation from a particular contractor, and accepts such compensation in good faith reliance on that advisory opinion, then neither the requester nor the contractor will be found to have knowingly violated 41 U.S.C. 2104 . If the requester or the contractor has actual knowledge or reason to believe that the opinion is based upon fraudulent, misleading, or otherwise incorrect information, their reliance upon the opinion will not be deemed to be in good faith.