Draft TEAMS-Next OCI Policy.pdf

STATEMENT OF POLICY

ORGANIZATIONAL CONFLICTS OF INTEREST FOR TEAMS-NEXT

The Missile Defense Agency TEAMS-Next Organizational Conflict of Interest (OCI) policy is based upon and guided by principles contained in Federal Acquisition Regulation (FAR)

Subparts 3.11 and 9.5, Department of Defense FAR Supplement (DFARS) Subparts 203.171 and

209.571, and decisions of the Government Accountability Office (GAO) and federal courts.

The Agency prefers that offerors competing for TEAMS-Next requirements are free of

OCIs. While mitigation strategies will not be prohibited, a high standard will be applied when determining the sufficiency of any proposed strategy. Only under very limited circumstances will

MDA waive OCIs for TEAMS-NEXT. OCI waivers will require review and approval by the

MDA Director. Consequently, industry is encouraged to avoid OCIs to the maximum extent practicable and to submit OCI-free proposals for TEAMS-Next efforts.

As defined in FAR 2.101, an 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.”

Organizational Conflicts of Interest fall into three general categories:

1. Impaired Objectivity: This type of OCI arises where a firm’s ability to render impartial advice to the government would be undermined by the firm's competing interests. The primary concern with an impaired objectivity type OCI is that the contractor has a financial interest in the outcome of its performance and that the conflicting roles might influence the contractor’s judgement. This is the most common type of OCI successfully challenged through the protest process before GAO due to the fact that information is readily available to competitors.

2. Biased Ground Rules: This type of OCI arises where a firm, as part of its performance of a government contract has set the ground rules for the competition for another government contract. The primary concern with a biased ground rules type OCI is that by virtue of its current work a company has the opportunity and ability to skew a future competition in favor of itself, even unintentionally. There is typically no basis to distinguish between a firm and its affiliates, at least where concerns about potentially biased ground rules are at issue.

3. Unequal Access to Non-Public Information: This type of OCI arises when a firm has access to nonpublic information as part of its performance of a contract and where that information may provide a competitive advantage in a competition. The primary concern with an unequal access to information type OCI is that the contractor had inside information that provides it with an unfair competitive advantage.

Also, offerors should be particularly cautious in the use of former government employees in the development of their TEAMS-Next proposals. Use of former government employees under

Approved for Public Release 20-MDA-10405 (4 Mar 20) certain circumstances could preclude a potential offeror from competing based on an appearance of impropriety stemming from the former government employees involvement in procurement matters prior to their leaving government service (See Government Accountability Office bid protest B-401652.3; B-401652.5, Health Net Federal Services, LLC, November 4, 2009 for further details).

The following guiding principles shall apply to TEAMS-Next solicitations and contracts:

1. The Agency requires objective and unbiased support across the entire MDS. MDA’s intent is to employ restrictions to protect the mission and maintain fairness for industry, while maximizing opportunities for competition.

2. Offerors competing for TEAMS-Next requirements must be free of OCIs at the time of award.

3. In the case of impaired objectivity and biased ground rules OCI, Industry should seek to avoid OCIs up front, as opposed to proposing mitigation. While mitigation strategies will not be prohibited, a high standard will be applied when determining the sufficiency of any proposed strategy.

4. MDA does not intend to waive OCIs as part of its support services acquisition process except under very limited circumstances. Any such waiver requires review and approval by the

MDA Director.

5. MDA expects that contractors choose whether they wish to support the Agency in a MDS development role or as a support services contractor. MDA’s expectation is that offerors competing for TEAMS-Next Systems Engineering and Technical Assistance (SETA) efforts

(Table 1.0 Below) will have no involvement in the development, production, or testing of the

Missile Defense System (MDS) (MDA’s Category 1C Major Defense Acquisition Program) that could create an OCI consistent with DFARS 209.571-7.

For the purposes of this policy, MDS development activities are considered to include, but not necessarily, limited to the following activities (including MDA funded efforts awarded and administered by MDA or MDA funded efforts awarded and administered through other agencies (e.g. Inter-Agency Requirements (IAR)):

a) Development or production of any portion of the MDS; this also includes Modeling &

Simulation (M&S) activities performed in support of MDS development/production.

This does not include M&S activities not directly related to MDS development or production (e.g. WILMA, which provides modeling and analysis environment supporting the quantitative evaluation of MDS end-to-end architecture performance)

b) Technology development in support of future MDS capabilities, including Small

Business Innovation Research (SBIR) Phase III and prototyping efforts (this does not include Phase I and II SBIR or Small Business Technology Transfer (STTR) efforts)

c) Testing of MDS capabilities. This does not include test infrastructure support (e.g.

Advanced Research Center or High Altitude Observatory (HALO) support)

d) Development or production of targets or countermeasures to support MDS testing.

These restrictions apply at the prime level and shall be flowed to all subcontractor levels.

Table 1.0 - TEAMS-Next Systems Engineering and Technical Assistance (SETA)

Requirements

TEAMS-Next Effort

Systems Engineering and Technical

Assistance

(Yes or No)

BMDS Engineering Yes

Agency Advisory & Analytical Support (A3) Yes

Specialized Engineering Analyses Yes

Intelligence Yes

Security Operations Yes

Cybersecurity Compliance & Risk Management Yes

IT & Cybersecurity Management Yes

Warfighter Yes

Test Support Yes

Facilities Life Cycle Management (FLCM) Yes

Program Planning & Acquisition Yes

Facilities, Logistics, and Environmental Yes

Quality & Mission Assurance Yes

Safety Yes

Agency Operations Yes

Contracting, Compliance, Cost/Price, and Operations Yes

Administration No

Public Affairs No

6. Internal to TEAMS-Next, due to the nature of the type of advisory or assistance service

(A&AS) being procured and the increased risk of conflicts, some requirements demand restrictions or exclusion. These restrictions and exclusions are identified in Table 2.0 below. Restricted areas are those that identified as having conflicts with other TEAMS-

Next areas. For restricted areas, primes and any subcontractors cannot participate in other

TEAMS-Next areas with identified conflicts. Conflicts as set forth in Table 2.0 below must be eliminated through an acceptable mitigation approach to be eligible for contract award.

These conflicts must be resolved at the prime and all subcontractor levels.

7. Exclusive areas are those that are in conflict with all other MDA contracts and therefore primes and subcontractors cannot perform on any other MDA funded contract. The C3PO successful offeror, including the prime and all subcontractors, will be excluded from performing any other contract using MDA funding, whether awarded by MDA or otherwise.

Internal TEAMS-Next restrictions apply at the prime level and shall be flowed to all subcontractor levels.

Table 2.0 – TEAMS-Next OCI Restrictions

Area Conflict Areas Restriction

Quality & Mission

Assurance

Safety; Program Planning and Acquisition;

C3PO; MDS Engineering; Specialized

Engineering Analyses; A3; CCRM; Test

Restricted

Safety Quality and Mission Assurance; MDS

Engineering; Specialized Engineering

Analyses; A3; CCRM; Test; Facilities, Logistics and Environmental; C3PO

Restricted

Cybersecurity Compliance

& Risk Management

Information Technology and Cybersecurity

Management; C3PO

Restricted

Agency Operations Program Planning and Acquisition; C3PO;

MDS Engineering; Specialized Engineering

Analyses; A3; CCRM; Test; Facilities, Logistics and Environmental

Restricted

Agency, Advisory, and Analytical Support (A3)

MDS Engineering; Specialized Engineering Analyses; Program Planning and Acquisition;

Test; Agency Operations; C3PO

Restricted

Contracting Compliance

Cost/Price and Operations

(C3PO)

All TEAMS-Next Contracts and other MDA contracts

Exclusive

8. Given the period of performance overlap between differing TEAMS and TEAMS-Next contracts, there is the potential for OCIs to arise from current MDA support contractors proposing on TEAMS-Next requirements. Conflicts as set forth in Table 3.0 below must be eliminated through an acceptable mitigation approach to be eligible for contract award.

These conflicts must be resolved at the prime and all subcontractor levels.

Table 3.0 - TEAMS-Next vs TEAMS

TEAMS-Next TEAMS

Quality & Mission Assurance Safety; Acquisition; International Affairs; Strategic Planning; C3PO; MDS Systems Engineering;

Weapons & Missiles System Engineering;

C3BM Engineering; Specialty Engineering;

Predictive Engineering; International Engineering;

Cybersecurity Engineering; A3; CCRM; Test, Exercise, Wargames; Test Provisioning

Safety QMA; C3PO; MDS Systems Engineering;

Weapons & Missiles System Engineering;

C3BM Engineering; Specialty Engineering;

Predictive Engineering; International Engineering;

Cybersecurity Engineering; A3; CCRM; Test, Exercise, Wargames; Test Provisioning;

Environmental Management; Facilities Logistics Space Management; Logistics

Cybersecurity Compliance & Risk Management

Cybersecurity Management & Computer Network Defense; Information Technology Management & Analysis; C3PO

Agency Operations Acquisition; International Affairs; Strategic Planning; C3PO; MDS Systems Engineering;

Weapons & Missiles System Engineering;

C3BM Engineering; Specialty Engineering;

Predictive Engineering; International Engineering;

Cybersecurity Engineering; A3; CCRM; Test, Exercise, Wargames; Test Provisioning

Agency Advisory & Analytical Support (A3)

Acquisition; International Affairs; Strategic Planning; C3PO; MDS Systems Engineering;

Weapons & Missiles System Engineering;

C3BM Engineering; Specialty Engineering;

Predictive Engineering; International Engineering;

Cybersecurity Engineering; Test, Exercise, Wargames; Test Provisioning; Business Operations; Human Resources

Contracting, Compliance, Cost/Price, and Operations (C3PO)

All TEAMS Contracts and any other MDA contracts.

9. Conflicts may also exist between TEAMS-Next contracts and other A&AS contracts awarded by other Agencies in support of MDA (through the IAR process). Such conflicts must be eliminated through an acceptable mitigation approach to be eligible for contract award. These conflicts must be resolved at the prime and all subcontractor levels. It is incumbent upon offerors to assess their respective MDA-funded A&AS contracts relative to the guiding principles and internal conflict areas identified above.

10. OCI management plans will be evaluated during source selection and incorporated at the time of award for TEAMS-Next contracts. Prime contractors will be contractually bound to follow their OCI management and mitigation plans (if applicable) and manage potential and real OCIs at all tiers of the supply chain. Prime contractor performance in the area of OCI management will be assessed under CPARS.

11. Industry must take an increasingly active role in OCI management. MDA expects prime contractors to create an environment at all tiers that emphasizes avoidance of OCIs when possible. When not possible, industry must support early identification and reporting of

OCIs to the government.

Industry is strongly encouraged to review FAR, DFARS, and relevant GAO and court cases in the area of OCI prior to submitting proposals for these requirements. Offerors that submit proposals requiring mitigation risk having their proposals considered unawardable should the government determine their mitigation strategy is inadequate.