80LARC24R0011 - Clauses (Draft).pdf

H.1 ORGANIZATIONAL AND PERSONAL CONFLICTS OF INTEREST (LaRC 52.227-96)

(JUNE 2012)

(a) Pursuant to FAR 9.504, the Contracting Officer is responsible for identifying and evaluating potential Organizational Conflicts of Interest (OCI) early in the acquisition process and either avoiding, neutralizing, or mitigating such conflicts before contract award or task order award, as appropriate.

(b) In general during the performance of this contract, the Contractor may encounter OCIs in the form of conflicting roles that might bias the Contractor's judgment, such as:

(1) The evaluation or assessment of the work product of the Contractor or of the Contractor’s competitors,

(2) Performance of a proposal evaluation, assessment, or study in which the results could potentially impact the Contractor’s interests,

(3) Performance on any work arising from, or related to, any proposal evaluation, assessment, or study on which it performed these services, except as required in performance of this contract, and

(4) Access to proprietary information or data of other Contractors and/or Government sensitive, nonpublic information or data, which information or data may provide the Contractor with an unfair competitive advantage. For the purpose of this clause, the term Contractor includes the Contractor’s business units and divisions, as well as the Contractor’s parent company, subsidiaries, affiliates and successors (as applicable). For the purpose of this contract, “sensitive” information is defined in the Access to Sensitive Information clause of this contract.

(c) OCI Avoidance: Given the nature of the services required by this contract, the Contractor shall be precluded from proposing on or working on certain types of contracts as set out in clause H.2 LIMITATION OF FUTURE CONTRACTING (NFS 1852.209-71) (DEC 1988), below. Additionally, the Contractor shall establish a procedure to examine any work it wishes to propose upon or to engage in to ensure that the work does not create an OCI with this contract.

(d) Given the nature of the services required by this contract, covered employees may encounter personal conflicts of interest (PCIs) resulting from a financial interest, personal activity, or relationship that could impair the covered employees’ ability to act impartially and in the best interest of the government. For the purposes of PCI, the term “covered employee” is a Contractor employee, subcontractor employee, or consultant.

(e) PCI Avoidance: The Contractor shall establish a procedure to screen all covered employees to prevent PCIs, including those PCIs that cannot be identified until after award.

The Contractor shall screen covered employees at appropriate times to prevent and avoid PCIs and maintain effective oversight. The Contractor shall prevent PCIs by not assigning or allowing covered employees to perform on tasks where a potential PCI is identified unless approved by the Contracting Officer. The Contractor is under a continuing obligation to disclose actual or potential PCIs.

(f) Prior to commencing work on any task order (to include, but not limited to, appointing panel or assessment team members), the Contractor shall take all actions necessary to carry out its responsibilities for conflict-of-interest avoidance as described above and protection of proprietary and sensitive data, as set forth in the approved OCI Avoidance

Plan and the terms of this contract to include NFS clause 1852.237-72, ACCESS TO SENSITIVE INFORMATION (JUN 2005). The Contractor shall ensure that all personnel (including subcontractor personnel and consultants) proposed to work on the task order have been trained regarding their responsibilities concerning PCIs, OCIs, limitations on future contracting, and protection of proprietary and sensitive data.

(g) Contractor's response to Task Order Requests: Within two (2) business days of receipt of a Task Order request, the Contractor shall notify the Contracting Officer of all potential or actual PCIs or OCIs and provide a report detailing:

(1) The nature of any potential or actual OCI or PCI.

(2) Plan for avoiding, neutralizing, or mitigating:

(i) OCIs as described in paragraphs (b) and (c) of this clause, and/or

(ii) PCIs as described in paragraphs (d) and (e) of this clause.

Additionally, the Contractor shall notify the Contracting Officer of any modifications it intends to make to its OCI Avoidance Plan provisions related to the protection of proprietary and sensitive data for the work to be performed under the Task Order.

(h) Government response to a report of a potential or actual OCI or PCI: The Contracting

Officer will review the report and determine which of the following approaches is in the best interest of the Government and shall so advise the Contractor:

(1) The Contractor shall perform consistent with the Task Order and the Contractor’s plan to avoid, mitigate, or neutralize the conflict;

(2) The Contractor shall not perform the Task Order and it will be cancelled; or

(3) The Task Order shall be modified to remove the conflict.

(i) Additional requirements:

(1) The limitations on future contracting resulting from the Contractor's performance are identified in H.2 NFS clause 1852.209-71, LIMITATION OF FUTURE

CONTRACTING (DEC 1988).

(2) The Contractor shall include this clause in all subcontract(s) regardless of tier.

(3) The Contractor shall notify the Government of any actual OCI or PCI within two (2) business days of whenever the Contractor becomes aware of the OCI or PCI.

(4) The Offeror must not expect that use of a firewall within its own organization to mitigate “impaired objectivity” OCIs will be acceptable to NASA. Such firewalls generally provide insufficient mitigation for an “impaired objectivity” type of OCI.

Additionally, the Offeror must not expect that the use of firewalled subcontractors to mitigate “impaired objectivity” OCIs will be acceptable to NASA. Use of such firewalls, except in extremely limited circumstances, prevents the Offeror from effectively managing their subcontractor(s) and the task.

(End of clause)

H.2 LIMITATION OF FUTURE CONTRACTING (NFS 1852.209-71) (DEC 1988)

(a) The Contracting Officer has determined that this acquisition may give rise to a potential organizational conflict of interest. Accordingly, the attention of prospective offerors is invited to FAR Subpart 9.5 - Organizational and Consultant Conflicts of Interest.

(b) The nature of this conflict is that, during the performance of this contract, the Contractor will unavoidably encounter Conflicts of Interest in the form of conflicting roles that have the potential to bias the Contractor's judgment, such as:

(1) the evaluation or assessment of the work product of the Contractor or of the Contractor’s competitors,

(2) performance of a proposal/Concept Study Report (CSR) evaluation, assessment, or study the results of which could potentially impact the Contractor’s interests,

(3) access to proprietary information or data of other Contractors and/or Government sensitive, nonpublic information or data, which information or data may provide the Contractor with an unfair competitive advantage. For the purpose of this clause, the term Contractor includes the Contractor’s business units and divisions, as well as the Contractor’s parent company, subsidiaries, affiliates, and successors (as applicable). For the purpose of this contract, “sensitive” information is defined in the Access to Sensitive Information clause of this contract.

(c) The restrictions upon future contracting are as follows:

(1) The Contractor shall not:

(i) participate in any capacity, in support of an offeror/potential proposer, in a solicitation for which it provides evaluative services under this contract, projected to include all Science Mission Directorate Announcements of Opportunity (AO); or

(ii) perform any work for the baseline or threshold investigation, as defined at selection/down-selection of the associated proposal/CSR an, directly arising from, or directly related to, any proposal/CSR evaluation or assessment, which the Contractor performed under this contract. This restriction shall remain in effect for a reasonable time after the Contractor’s performance under this contract has ended, as agreed to by the Contracting Officer and the Contractor, sufficient to avoid unfair competitive advantage or potential bias. This time shall in no case be less than the duration of the contract plus one year, of any contract arising directly from a proposal/CSR evaluation, or an existing contract for a project subject to an assessment on which the Contractor performed these services.

(2) To the extent that the work under this contract requires access to proprietary, sensitive, business confidential, or financial data of other companies, and as long as these data remain proprietary, sensitive, or confidential, the Contractor shall protect these data from unauthorized use and disclosure and agrees not to use the data for any other purpose, including, but not limited to, competing for future work.

(d) The Contractor shall include this clause in all subcontracts regardless of tier.

(End of clause)