5 U.S.C. § 3109 — Employment of experts and consultants;

Page 339 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3109 HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 54. Oct. 22, 1913, ch. 32, § 1 (last par. under ‘‘Interstate Commerce Commission’’), 38 Stat. 212. The prohibition is restated in positive form. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 3108. Employment of detective agencies; restric- tions An individual employed by the Pinkerton De- tective Agency, or similar organization, may not be employed by the Government of the United States or the government of the District of Columbia. (Pub. L. 89– 554, Sept. 6, 1966, 80 Stat. 416.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 53. Mar. 3, 1893, ch. 208 (5th par. under ‘‘Public Build- ings’’), 27 Stat. 591. The prohibition is restated in positive form. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 3109. Employment of experts and consultants; temporary or intermittent (a) For the purpose of this section— (1) ‘‘agency’’ has the meaning given it by section 5721 of this title; and (2) ‘‘appropriation’’ includes funds made available by statute under section 9104 of title 31. (b) When authorized by an appropriation or other statute, the head of an agency may pro- cure by contract the temporary (not in excess of 1 year) or intermittent services of experts or consultants or an organization thereof, includ- ing stenographic reporting services. Services procured under this section are without regard to— (1) the provisions of this title governing ap- pointment in the competitive service; (2) chapter 51 and subchapter III of chapter 53 of this title; and (3) section 6101(b) to (d) of title 41, except in the case of stenographic reporting services by an organization. However, an agency subject to chapter 51 and subchapter III of chapter 53 of this title may pay a rate for services under this section in excess of the daily equivalent of the highest rate payable under section 5332 of this title only when specifi- cally authorized by the appropriation or other statute authorizing the procurement of the serv- ices. (c) Positions in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service may not be filled under the authority of subsection (b) of this section. (d) The Office of Personnel Management shall prescribe regulations necessary for the adminis- tration of this section. Such regulations shall include— (1) criteria governing the circumstances in which it is appropriate to employ an expert or consultant under the provisions of this sec- tion; (2) criteria for setting the pay of experts and consultants under this section; and (3) provisions to ensure compliance with such regulations. (e) Each agency shall report to the Office of Personnel Management on an annual basis with respect to— (1) the number of days each expert or con- sultant employed by the agency during the pe- riod was so employed; and (2) the total amount paid by the agency to each expert and consultant for such work dur- ing the period. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416; Pub. L. 95–454, title IV, § 402(b), Oct. 13, 1978, 92 Stat. 1160; Pub. L. 97–258, § 3(a)(4), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 100–325, § 2(b), May 30, 1988, 102 Stat. 581; Pub. L. 102–378, § 2(8), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 111–350, § 5(a)(4), Jan. 4, 2011, 124 Stat. 3841.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 55a. Aug. 2, 1946, ch. 744, § 15, 60 Stat. 810. In subsection (a), the definitions of ‘‘agency’’ and ‘‘appropriation’’ are added on authority of the Act of Aug. 2, 1946, ch. 744, § 18, 60 Stat. 811. In subsection (b), the words ‘‘the provisions of this title governing appointment in the competitive serv- ice’’ are substituted for ‘‘the civil-service laws’’. The words ‘‘chapter 51 and subchapter III of chapter 53 of this title’’ are substituted for the reference to the clas- sification laws which originally meant the Classifica- tion Act of 1923, as amended. Exception from the Classi- fication Act of 1949 is based on sections 202(27) and 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 956, 972. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2011—Subsec. (b)(3). Pub. L. 111–350 substituted ‘‘sec- tion 6101(b) to (d) of title 41’’ for ‘‘section 5 of title 41’’. 1992—Subsecs. (d), (e). Pub. L. 102–378 added subsecs. (d) and (e). 1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. 1982—Subsec. (a)(2). Pub. L. 97–258 substituted ‘‘sec- tion 9104’’ for ‘‘section 849’’. 1978—Subsec. (c). Pub. L. 95–454 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title. Page 340 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3109 LIMITATION ON CONSULTING SERVICES Pub. L. 113–76, div. G, title IV, § 401, Jan. 17, 2014, 128 Stat. 337, provided that: ‘‘In fiscal year 2014 and there- after, the expenditure of any appropriation under this Act [div. G of Pub. L. 113–76, see Tables for classifica- tion] or any subsequent Act appropriating funds for de- partments and agencies funded in this Act, for any con- sulting service through procurement contract, pursu- ant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where other- wise provided under existing law, or under existing Ex- ecutive order issued pursuant to existing law.’’ APPROPRIATIONS RELATING TO LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION; PUBLIC DISCLO- SURE OF CONSULTING SERVICE THROUGH PROCURE- MENT CONTRACT Pub. L. 102–394, title V, § 501, Oct. 6, 1992, 106 Stat. 1825, provided that: ‘‘The expenditure of any appropria- tion under this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts for any con- sulting service through procurement contract, pursu- ant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where other- wise provided under existing law, or under existing Ex- ecutive order issued pursuant to existing law.’’ Similar provisions were contained in the following prior appropriation acts: Pub. L. 102–170, title V, § 501, Nov. 26, 1991, 105 Stat. 1140. Pub. L. 101–517, title V, § 501, Nov. 5, 1990, 104 Stat. 2220. Pub. L. 101–166, title V, § 501, Nov. 21, 1989, 103 Stat. 1189. Pub. L. 100–202, § 101(h) [title V, § 501], Dec. 22, 1987, 101 Stat. 1329–256, 1329–287. Pub. L. 99–500, § 101(i) [H.R. 5233, title V, § 501], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, § 101(i) [H.R. 5233, title V, § 501], Oct. 30, 1986, 100 Stat. 3341–287. Pub. L. 99–178, title V, § 501, Dec. 12, 1985, 99 Stat. 1132. Pub. L. 98–619, title V, § 501, Nov. 8, 1984, 98 Stat. 3332. Pub. L. 98–139, title V, § 501, Oct. 31, 1983, 97 Stat. 898. Pub. L. 97–377, title I, § 101(e)(1) [title V, § 501], Dec. 21, 1982, 96 Stat. 1878, 1904. AVAILABILITY OF APPROPRIATIONS FOR SERVICES Pub. L. 102–394, title V, § 503, Oct. 6, 1992, 106 Stat. 1825, provided that: ‘‘Appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and ex- penses, shall be available for services as authorized by 5 U.S.C. 3109 but at rates for individuals not to exceed the per diem rate equivalent to the maximum rate pay- able for senior-level positions under 5 U.S.C. 5376.’’ [For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under sec- tion 5376 of this title.] Similar provisions were contained in the following prior appropriation acts: Pub. L. 102–170, title V, § 503, Nov. 26, 1991, 105 Stat. 1140. Pub. L. 101–517, title V, § 503, Nov. 5, 1990, 104 Stat. 2221. Pub. L. 101–166, title V, § 503, Nov. 21, 1989, 103 Stat. 1189. Pub. L. 100–202, § 101(h) [title V, § 503], Dec. 22, 1987, 101 Stat. 1329–256, 1329–287. Pub. L. 99–500, § 101(i) [H.R. 5233, title V, § 503], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, § 101(i) [H.R. 5233, title V, § 503], Oct. 30, 1986, 100 Stat. 3341–287. Pub. L. 99–178, title V, § 503, Dec. 12, 1985, 99 Stat. 1132. Pub. L. 98–619, title V, § 503, Nov. 8, 1984, 98 Stat. 3333. Pub. L. 98–139, title V, § 503, Oct. 31, 1983, 97 Stat. 899. Pub. L. 97–377, title I, § 101(e)(1) [title V, § 503], Dec. 21, 1982, 96 Stat. 1878, 1904. APPROPRIATIONS RELATING TO ENERGY AND WATER DE- VELOPMENT; PUBLIC DISCLOSURE OF CONSULTING SERVICE THROUGH PROCUREMENT CONTRACT Pub. L. 102–377, title V, § 504, Oct. 2, 1992, 106 Stat. 1342, provided that: ‘‘The expenditure of any appropria- tion under this Act or subsequent Energy and Water Development Appropriations Acts for any consulting service through procurement contract, pursuant to sec- tion 3109 of title 5, United States Code, hereafter shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under ex- isting law, or under existing Executive Order issued pursuant to existing law.’’ Executive Documents EX. ORD. NO. 13433. PROTECTING AMERICAN TAXPAYERS FROM PAYMENT OF CONTINGENCY FEES Ex. Ord. No. 13433, May 16, 2007, 72 F.R. 28441, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, it is hereby ordered as follows: SECTION 1. Policy. To help ensure the integrity and ef- fective supervision of the legal and expert witness serv- ices provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established ac- cording to criteria set in advance of performance of the services, except when otherwise required by law. SEC. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such in- structions as the Attorney General may prescribe. (b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency’s entry into the agreement is required by law. (c) Within 90 days after the date of this order, the head of each agency shall notify the Attorney General and the Director of the Office of Management and Budget of any contingency fee agreements for services addressed by section 1 of this order that are in effect as of the date of this order. SEC. 3. Definitions. For purposes of this order: (a) The term ‘‘agency’’ means an executive agency as defined in section 105 of title 5, United States Code, and the United States Postal Service and the Postal Regu- latory Commission, but shall exclude the Government Accountability Office and elements of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 as amended (50 U.S.C. 401a(4)) [now 50 U.S.C. 3003(4)][)]. (b) The term ‘‘contingency fee agreement’’ means a contract or other agreement to provide services under which the amount or the payment of the fee for the services is contingent in whole or in part on the out- come of the matter for which the services were ob- tained. The term does not include: (i) qualified tax collection contracts defined in sec- tion 6306 of title 26, United States Code, and (ii) contracts described in sections 3711 and 3718 of title 31, United States Code. SEC. 4. General Provisions. (a) This order shall be im- plemented consistent with applicable law and subject to the availability of appropriations. (b) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to an agency or the head thereof; or Page 341 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3111 (ii) functions of the Director of the Office of Manage- ment and Budget relating to budget, administrative, or legislative proposals. (c) This order is not intended to, and does not, create any right, benefit, or privilege, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person. GEORGE W. BUSH. § 3110. Employment of relatives; restrictions (a) For the purpose of this section— (1) ‘‘agency’’ means— (A) an Executive agency; (B) an office, agency, or other establish- ment in the legislative branch; (C) an office, agency, or other establish- ment in the judicial branch; and (D) the government of the District of Co- lumbia; (2) ‘‘public official’’ means an officer (includ- ing the President and a Member of Congress), a member of the uniformed service, an em- ployee and any other individual, in whom is vested the authority by law, rule, or regula- tion, or to whom the authority has been dele- gated, to appoint, employ, promote, or ad- vance individuals, or to recommend individ- uals for appointment, employment, pro- motion, or advancement in connection with employment in an agency; and (3) ‘‘relative’’ means, with respect to a pub- lic official, an individual who is related to the public official as father, mother, son, daugh- ter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, step- mother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. (b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be ap- pointed, employed, promoted, or advanced in or to a civilian position in an agency if such ap- pointment, employment, promotion, or advance- ment has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the indi- vidual. (c) An individual appointed, employed, pro- moted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced. (d) The Office of Personnel Management may prescribe regulations authorizing the temporary employment, in the event of emergencies result- ing from natural disasters or similar unforeseen events or circumstances, of individuals whose employment would otherwise be prohibited by this section. (e) This section shall not be construed to pro- hibit the appointment of an individual who is a preference eligible in any case in which the pass- ing over of that individual on a certificate of eli- gibles furnished under section 3317(a) of this title will result in the selection for appointment of an individual who is not a preference eligible. (Added Pub. L. 90–206, title II, § 221(a), Dec. 16, 1967, 81 Stat. 640; amended Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.) Editorial Notes AMENDMENTS 1978—Subsec. (d). Pub. L. 95–454 substituted ‘‘Office of Personnel Management’’ for ‘‘Civil Service Commis- sion’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. EFFECTIVE DATE Pub. L. 90–206, title II, § 220(a)(1), Dec. 16, 1967, 81 Stat. 639, provided, except as otherwise expressly provided, that: ‘‘This section [enacting provisions set out as a note under section 8704 of this title] and sections 201 [enacting provisions set out as Short Title note under section 5332 of this title], 207 [amending section 5303 of this title], 212 [enacting provisions set out as a note under section 5303 of this title], 218 [enacting provisions set out as a note under section 5332 of this title], 221 [enacting this section and provisions set out as a note under this section], 224(a) and (b) [amending sections 4101 and 8339 of this title], and 225 [enacting sections 351–361 of Title 2, The Congress] shall become effective on the date of enactment of this title [Dec. 16, 1967].’’ RETROACTIVE EFFECT Pub. L. 90–206, title II, § 221(c), Dec. 16, 1967, 81 Stat. 641, provided that: ‘‘The amendments made by this sec- tion [enacting this section] do not apply to an appoint- ment, employment, advancement, or promotion made or advocated by a public official of any individual who is a relative of the public official if, prior to the effec- tive date of this section [see Effective Date note above], the individual was appointed by the public offi- cial, or received an appointment advocated by the pub- lic official, and is serving under the appointment on such effective date.’’ [Section 221(c) of Pub. L. 90–206 effective Dec. 16, 1967, see section 220(a)(1) of Pub. L. 90–206, set out as an Ef- fective Date note above.] § 3111. Acceptance of volunteer service (a) For the purpose of this section, ‘‘student’’ means an individual who is enrolled, not less than half-time, in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. An individual who is a student is deemed not to have ceased to be a stu- dent during an interim between school years if the interim is not more than 5 months and if such individual shows to the satisfaction of the Office of Personnel Management that the indi- vidual has a bona fide intention of continuing to pursue a course of study or training in the same or different educational institution during the school semester (or other period into which the school year is divided) immediately after the in- terim. (b) Notwithstanding section 1342 of title 31, the head of an agency may accept, subject to regula- tions issued by the Office, voluntary service for the United States if the service—