Attachment 07 - 20240402 - SECTION J ATT - OCI.pdf

W9113M24R0070 Attachment 07 Organizational Conflicts of Interest (OCI) Design, Development, Demonstration, and Integration II (D3I2) Domain 1 02 April 2024 (REV 00)

ORGANIZATIONAL CONFLIFT OF INTEREST (OCI)

1.0. DEFINITIONS.

a. “Organizational Conflict of Interest” or “OCI” means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.

b. “Person” as used herein includes corporations, partnerships, joint ventures, teaming arrangements, and other business enterprises.

c. The term “contractor” as used in this section, includes any person, firm or corporation that has a majority or controlling interest in the contractor or in any parent corporation thereof, or any person, firm, or corporation in or as to which the contractor (or any parent or subsidiary corporation thereof) has a majority or controlling interest. The term also includes the corporate officers of the contractor, those of any corporation that has a majority or controlling interest in the contractor, and those of any corporation in which the contractor (or any parent or subsidiary corporation thereof) has a majority or controlling interest. All references to the “contractor” as contained in this section shall apply with equal force to all of these included.

d. For this section, “contract” and “task order” (or “TO”) shall be used as applicable to the level at which is appropriate.

2.0. IMPACT ON FUTURE AGENCY CONTRACTS AND TOs.

a. Contractor and subcontractor personnel performing work under this contract and resulting TOs may receive, have access to, and/or participate in the development of proprietary or source selection information (e.g., cost or pricing information, budget information or analyses, specifications, or work statements, etc.) that may create a current or subsequent OCI as defined in FAR Subpart 9.5, Organizational or Consultant Conflicts of Interest.

b. The contractor shall notify the cognizant contracting officer (KO) and contracting officer’s representative (COR) immediately in writing whenever it becomes aware that such access or participation may result in any actual or potential OCI and shall promptly submit a plan to the responsible KO to avoid or mitigate any such OCI. The contractor’s mitigation plan will be determined to be acceptable solely at the discretion of the responsible KO; in the event the responsible KO unilaterally determines that any such OCI cannot be satisfactorily avoided or mitigated, then the responsible KO may affect other remedies as he or she deems necessary, including prohibiting the contractor from participation in subsequent contracted requirements which may be affected by the OCI. It is the intention of the parties to mitigate any perception of an OCI and to prevent the existence of conflicting roles that might bias the contractor’s judgement in rendering advice and recommendations.

c. In order to prevent a future OCI resulting from unequal access to information, potential bias, or impaired objectivity, the contractor shall be subject to the restrictions in stated below.

(1) Unless waived by the responsible KO, the contractor shall be excluded from competition for, or award of any Government contract or TO as to which, in the course of performance of this contract, the contractor has received advance procurement information before such information has been made generally available to other persons or firms unless mitigation measures are put in place, to avoid, neutralize, or mitigate an OCI.

(2) The contractor shall be excluded from competition for, or award of any Government contract or TO for which the contractor actually assists in the development of the screening information request, specifications or statements of work unless mitigation measures are put in place to avoid, neutralize or mitigate an OCI.

(3) The contractor shall be excluded from competition for or award of any Government contract or TO that calls for the evaluation of system requirements, system definitions, or other products developed by the contractor under this contract or resulting TOs unless mitigation measures are put in place to avoid, neutralize, or mitigate and OCI.

(4) The contractor shall be excluded from competition for, or award of any Government contract or TO that calls for the construction or fabrication of any system, equipment, hardware, and/or software for which the contractor participated in the development of requirements or definitions pursuant to this contract or resulting TO unless mitigation measures are put in place to avoid, neutralize, or mitigate and OCI.

d. This Section J attachment shall have effect throughout the basic contract ordering period (and any applicable TO performance period that exceeds the basic contract ordering period), any extensions thereto by change order or supplemental agreement, and for three (3) years thereafter. The agency may in its sole discretion, waive any provisions of under this Section J attachment (or FAR Subpart 9.5, Organizational or Consultant Conflicts of Interest) if deemed in the best interest of the Government. The exclusions contained in this Section J attachment shall apply for the duration of this contract and for three (3) years after completion and acceptance of all work performed hereunder. If any provision of this Section J attachment (or FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest) excludes the contractor from competition for, or award of any contract, then the contractor shall not be permitted to serve as a subcontractor, at any tier, on such contract. This Section J attachment shall be incorporated into any subcontracts or consultant agreements awarded under this contract unless the KO determines otherwise.

The following information in Sections 2.1 - 2.3 illustrate situations in which questions concerning OCIs may arise; the examples are not all inclusive but are intended to help the KO apply general guidance to individual contract and TO situations.

2.1 UNEQUAL ACCESS TO INFORMATION.

Access to “nonpublic information” as part of the performance of a TO issued under the contract or work performed under a separate government contract could provide the contractor a competitive advantage in a later competition. Such an advantage could easily be perceived as unfair by a competing vendor who is not given similar access to the relevant information. If the requirements of the Government procurement anticipate the successful vendor may have access to nonpublic information, then the successful vendor shall be required to submit and negotiate an acceptable mitigation plan. Alternatively, the “nonpublic information” may be provided to all vendors.

2.2 BIASED GROUND RULES.

A contractor, in the course of performance under a TO or contract, has in some fashion established important “ground rules” for another requirement, where the same contractor may be a competitor. For example, a contractor may have drafted the SOW, specifications, or evaluation criteria of a future procurement. The primary concern of the Government in this case is that a contractor so situated could slant key aspects of procurement in its own favor, to the unfair disadvantage of competing vendors. If the requirements of the Government procurement anticipate the contractor may have been in a position to establish important ground rules, including but not limited to those described herein, then the contractor shall be required to submit and negotiate an acceptable mitigation plan.

2.3. IMPAIRED OBJECTIVITY.

a. A contractor in the course of performance of a TO or contract, is placed in a situation of providing assessment and evaluation findings over itself, or another business division, or subsidiary of the same corporation, or other entity with which it has a significant financial relationship. The concern in this case is that the contractor’s ability to render impartial advice to the Government could appear to be undermined by the contractor's financial or other business relationship to the entity whose work product is being assessed or evaluated.

b. In these situations, a “walling off” of lines of communication may well be insufficient to remove the perception that the objectivity of the contractor has been tainted. If the requirements of the Government procurement indicate that the successful vendor may be in a position to provide evaluations and assessments of itself or corporate siblings, or other entity with which it has a significant financial relationship, then the affected contractor shall provide a mitigation plan that includes recusal by the vendor from the affected contract work (such recusal might include divestiture of the work to a third-party vendor).

3.0. AFFIRMATIVE DUTIES AND RESPONSIBILITIES FOR GOVERNMENT

CONTRACTORS.

a. By executing the basic contract agreement (and any TOs issued under the basic contract), the contractor affirms and agrees to the following responsibilities, as well as those in FAR Subpart 9.5, Organizational or Consultant Conflicts of Interest.

b. The contractor warrants that to the best of its knowledge and belief, and except as otherwise set forth in the contract, the contractor does not have any OCI(s) as defined above.

c. The contractor agrees that, if after award, it discovers an actual or potential OCI at the contract level or TO level, respectively, it shall make immediate and full disclosure in writing to the KO. Changes in the contractor’s relationships due to mergers, consolidations or any unanticipated circumstances may create an unacceptable OCI that would necessitate such disclosure. The notification shall include a description of the actual or potential OCI, a description of the action that the contractor has taken or proposes to take to avoid, mitigate, or neutralize the conflict, and any other relevant information that would assist the KO in making a determination on this matter. The contractor, upon identification of a potential conflict, shall submit requests to participate in the TO for written approval on a TO-by-TO basis, unless the contractor is aware of multiple TOs that may create the appearance of a conflict, or be an actual conflict. In the case of the later, the contractor shall notify the KO as soon as the conflicts/apparent conflicts have been identified. This provision shall be in effect throughout the basic contract ordering period, any extensions thereto by change order or supplemental agreement, and for three (3) years thereafter.

d. The contractor shall permit a Government audit of internal OCI mitigation procedures for verification purposes.

e. The Government reserves the right to reject a mitigation plan, if in the opinion of the KO such a plan is not in the best interests of the Government.

f. The contractor shall hold the Government harmless and will freely indemnify the Government as to any cost/loss resulting from the unauthorized use or disclosure of any third-party proprietary information by its employees, the employees of subcontractors, or by its agents.

g. The contractor shall include the same provisions as are expressed in this Section J attachment, including this paragraph, in all subcontracts awarded for performance of any portion of this requirement. This restriction is applicable throughout the period of performance of the subcontract, and any extensions thereof by change order or supplemental agreement, and for three (3) years thereafter. When the provisions of this section are included in a subcontract, the term "Contracting Officer" (or “KO”) shall represent the head of the contract’s office of the prime contractor. Any deviations or less restrictive coverage deemed necessary or required by the prime contractor for a particular subcontract must first be submitted to the Government KO for approval. Subcontract restrictions will be limited to the technical area(s) addressed in the specific statements of work in the subcontractor’s given TOs.

h. The KO's decision as to the existence or nonexistence of an actual or potential OCI shall be final.

4.0. COMPLIANCE.

Compliance with these OCI requirements is a material obligation of this contract. The rights and remedies described herein shall not be exclusive and are in addition to other rights and remedies provided by law, including those set forth at FAR Subpart 9.5, Organizational or Consultant Conflicts of Interest, or elsewhere included in this contract. If the contractor takes any action prohibited by this requirement or fails to take action required by this requirement, then the Government may terminate this contract for default. For breach of any of the restrictions contained herein, or for nondisclosure or misrepresentation of any relevant facts required to be disclosed concerning this contract, the Government reserves the right to terminate this contract for default, disqualify the contractor for subsequent related contractual efforts, and to pursue such other remedies as may be available under law. If in compliance with this Section J attachment, the contractor discovers and promptly reports an OCI subsequent to contract award, then the KO may choose to terminate this contract for convenience of the Government, when such termination is deemed to be in the best interest of the Government.

5.0. OCI AT THE TO LEVEL.

a. It is recognized by the parties hereto that some of the services identified in the basic contract SOW or resulting TO may include: (1) incidental advisory and assistance services (commonly referred to as “A&AS”); (2) technical evaluation of other contractor’s products and services; (3) surveillance of other contractor’s services and work products; and/or (4) access to other contractors’ proprietary information. Such activities create a significant potential for certain conflicts of interest as set forth in FAR 9.505-1, Providing systems engineering and technical direction; FAR 9.505-2, Preparing specifications or work statements; FAR 9.505-3, Providing evaluation services; and FAR 9.505-4, Obtaining access to proprietary information, respectively.

b. It is the intention of the parties to this basic contract that the contractor will not engage in any other contractual or other activities that could create an OCI with its position under this contract;

which might impair its ability to render unbiased advice and recommendations; or in which it may derive an unfair competitive advantage as a result of knowledge, information, and experience gained during the performance of this contract. Therefore, the contractor agrees that it will seek the prior written approval of the KO before participating in any TO that may involve such a conflict.

c. The contractor agrees that it shall not release, disclose, or use in any way that would permit or result in disclosure to any party outside the government any information provided to the contractor by the Government during or as a result of performance of a TO under the basic contract. Such information includes, but is not limited to, information submitted to the Government on a confidential basis by other persons. Further, the prohibition against release of Government-furnished information extends to cover such information whether or not in its original form, where the information has been included in contractor generated work, or where it is discernible from materials incorporating or based upon such information. This prohibition shall not expire after a given period of time.

d. Whenever performance of this basic contract or a TO requires access to another contractor’s proprietary information, then the contractor shall: (1) enter into a written agreement with the other entities involved, as appropriate, in order to protect such proprietary information from unauthorized use or disclosure for as long as it remains proprietary; and (2) refrain from using such proprietary information other than as agreed to (for example, to provide assistance during technical evaluation of other contractors' offers or products under this contract). An executed copy of all proprietary information agreements by individual personnel or on a corporate basis shall be furnished to the TO KO within 15 calendar days of execution.

e. The contractor shall promptly notify the KO, in writing, if it has been tasked to evaluate or advise the Government concerning its own products or activities or those of a competitor in order to ensure that proper safeguards exist to guarantee objectivity and to protect the Government's interest.

f. If a TO is issued to the contractor that would require activity that would create a potential conflict of interest, the contractor shall immediately take the following actions listed in section

6.0 of this document.

6.0. NOTIFY THE KO OF A POTENTIAL CONFLICT.

a. The contractor shall recommend to the KO an alternate tasking approach that would avoid the potential conflict or present for approval a conflict of interest mitigation plan that will: (1) describe in detail the TO requirement that creates the potential conflict of interest; and (2) outline in detail the actions to be taken by the contractor or the Government in the performance of the task to mitigate the conflict, division of subcontractor effort, and limited access to information, or other acceptable means.

b. The contractor shall not commence work on a TO related to a potential conflict of interest until specifically notified by the KO to proceed.

c. If the KO determines that it is in the best interest of the Government to issue a TO, notwithstanding a conflict of interest, a request for waiver shall be submitted in accordance with FAR 9.503, Waiver.

7.0. CONFLICTS OF INTEREST (COI) COMPLIANCE PLANS.

a. If a waiver is requested, then the contractor shall submit with the waiver request a Conflicts of Interest (COI) Compliance Plan to the KO for approval. The COI Compliance Plan shall address the contractor's approach for adhering to this Section J attachment and describe its procedures for aggressively self-identifying and resolving both organizational and employee conflicts of interest. The overall purpose of the COI Compliance Plan is to demonstrate how the contractor will assure that its operations meet the highest standards of ethical conduct, and how its assistance and advice are impartial and objective.

b. The COI Compliance Plan shall specifically address the following items (and contractors are invited to review FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest, with focus on FAR 9.505-1 thru FAR 9.505-4):

(1) How the contractor will protect confidential, proprietary, or sensitive information.

(2) Prevention of the existence of conflicting roles that might bias a contractor’s judgment.

(3) Prevention of an unfair competitive advantage.

8.0. AVOIDANCE OF OCI.

The policy of the Government is to avoid contracting with contractors who have an unacceptable OCI; it is not the intent of the Government to foreclose a vendor from a competitive acquisition due to a perceived OCI. KOs are fully empowered to evaluate each potential OCI scenario based upon the applicable facts and circumstances. The final determination of such action may be negotiated between the vendor and the KO. The KO’s business judgment and sound discretion in identifying, negotiating, and eliminating OCI scenarios should not adversely affect the Government’s policy for competition. The Government is committed to working with potential vendors to eliminate or mitigate actual and perceived OCI situations, without detriment to the integrity of the competitive process, the mission of the Government, or the legitimate business interests of the vendor community.

9.0. MITIGATION PLANS.

The successful contractor will be required to permit a Government audit of internal OCI mitigation procedures for verification purposes. The Government reserves the right to reject an OCI mitigation plan, if in the opinion of the KO such a plan is not in the best interests of the Government. Additionally, after award the Government will review and audit OCI mitigation plans as needed, in the event of changes in the vendor community due to mergers, consolidations, or any unanticipated circumstances that may create an unacceptable OCI.

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