2._MCS-U_Industry_Day_Contracting_Remarks_20241008[1].pdf

SOF/PR… Delivering Dominance to Air Force Special Warfare

UNCLASSIFIED

One Family, Trusted To Deliver Dominance, With Urgency and Discipline

Tactical Air Control Party (TACP)

Mobile Communications System-Universal (MCS-U)

Industry Day

Contracting Remarks

Mr. Edwin Hernandez Mendez

AFLCMC/HBDK

8 Oct 24

Overview

• Contract Rules of Engagement

• Organizational Conflict of Interest (OCI)

• Procurement Integrity Act (PIA)

Contract Rules of Engagement

• SAM.gov is the Government-wide point of entry

– Announcements posted (bidders library, RFP events)

• Secure bidders library –Will be established upon release of draft documents –Will include all requirements

– Non-disclosure agreements will be necessary for access

– Password protected website and/or via DoD SAFE

– Questions/answers will be sanitized and posted

• Contracting

– Direct all inquiries/responses to Contracting POCs

Organizational Conflict of Interest

(OCI)

• Identifying and notifying Government of a potential OCI is the responsibility of the contractor

– FAR Subpart 9.5

• The prime contractor has the responsibility for all subcontractors

• OCI Mitigation Plans should be submitted ASAP to the

Contracting Officer

• FAR 2.101

• Because of other activities or relationships with other persons:

–a person is unable or potentially unable to render impartial assistance or advice to the Gov’t, or

–the person’s objectivity in performing the contract work is or might be impaired, or

–a person has an unfair competitive advantage.

Organizational Conflict of Interest Definition

Two Overarching Principles

FAR 9.505*

–Prevent the existence of conflicting roles that might bias a contractor’s judgment;

–Prevent unfair competitive advantage.

* See also, Daniel I. Gordon, Organizational Conflicts of Interest: A Growing Integrity Challenge . 35 Public Contract Law Journal 25 (Fall 2005)

Types of OCI

• There are three types of OCIs generally recognized by the GAO and courts:

1. Biased ground rules

2. Impaired objectivity

3. Unequal access to information

Types of OCI

1. Biased ground rules

–Through its performance of a government contract, a firm is in a position to influence or set the ground rules for another government procurement, which could, intentionally or unintentionally, skew the competition in its favor.

• Systems Engineering and Technical Direction (FAR 9.505-1)

• Preparing Specifications or Work Statements (FAR 9.505-2)

Types of OCI

2. Impaired objectivity

–A firm's ability to render impartial advice to the Government could be impaired because the firm’s business interests could be harmed if provides impartial advice.

• Providing Evaluation Services (FAR 9.505-3)

Types of OCI

3. Unequal access to information

–A firm has access to non-public information as part of its performance of a government contract, and that information may provide the firm an unfair competitive advantage in a later competition for a government contract.

•Obtaining Access to Proprietary Information (FAR 9.505-4)

Governing FAR Provisions

• FAR 9.502

–OCI rules apply to contracts with either for-profit or nonprofit organizations

–OCIs can occur in any kind of acquisition, but are most common in contracts for:

•Management support services;

•Consultant or other professional services;

•Contractor performance of or assistance in technical evaluations;

or

• Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production.

Governing FAR Provisions

• FAR 9.502

–An OCI may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition.

• In the latter case, some restrictions on future activities of the contractor may be required. (See FAR 9.505-1 thru -4)

Governing FAR Provisions

• FAR 9.504 – Contracting Officer Responsibilities

- Analyze planned acquisitions in order to-

1. Identify and evaluate potential OCIs as early in the acquisition process as possible; and

2. Avoid, neutralize, or mitigate significant potential conflicts before contract award

Governing FAR Provisions

• FAR 9.505

–OCIs may arise in other situations not specifically in FAR Subpart 9.5

–Each individual situation should be examined on the basis of its particular facts and the nature of the proposed contract

–OCI evaluations requires the exercise of common sense, good judgment, and sound discretion

Identifying OCIs

• Contractors should proactively identify any actual or potential OCIs and bring them to the attention of the Contracting Officer

• Solicitation may require offerors to either affirmatively state they have no OCI issues or identify potential OCIs and submit an OCI mitigation plan.

• Prime contractor submits OCI Mitigation Plan to Contracting Officer (prime contractor incorporates all subcontractor OCI plans)

• FAR 9.504(e):

• Failure to adequately mitigate an OCI concern CAN cost you a contract award, even if you were the otherwise apparently successful offeror.

OCI Conclusion

Procurement Integrity Act (PIA)

–41 USC § 2101-2107

–Places requirements on the Government:

• Protection of Source Selection Info and Bid & Proposal Info

•Recusal from a pending contract action when seeking non- Government Employment

•Ban on accepting compensation from a contractor that they have participated in the award of a contract to.

Procurement Integrity Act (PIA)

–But what about the Contractor?

• Provides penalties for any person that knowingly obtains protected information

• Provides penalties for engaging in employment discussions with a

Government employee, knowing that they have not recused themselves or completed Post-Government Employment ethics review

–What sort of penalties?

•Criminal: Fines and/or imprisonment •Civil: Fines of up to $500,000 plus twice the amount of prohibited compensation offered or received for the prohibited conduct •Administrative: Cancellation of the contract, rescission of the contract, suspension or debarment from Federal Government contracting

Review

• Contract Rules of Engagement

• Organizational Conflict of Interest (OCI)

• Procurement Integrity Act (PIA)

Points of Contact

• Supervisory Contracting Officer

– BOGGS, DUSTIN G AFLCMC/WISN

• 419-308-2436 (cell)

• dustin.boggs@us.af.mil

• Contracting Officer

– Edwin Hernandez Mendez, AFLCMC/HBDK

• 781-225-0789

• edwin.hernandez_mendez.2@us.af.mil

• Contracting Specialist

– Denis Grenier, AFLCMC/HBDK

• 781-225-2183

• denis.grenier@us.af.mil

Questions?