DRAFT H.4_OCI_22R0002_SEPS_20210903.pdf

DRAFT ONLY – SEPS, Section H.4 Organizational Conflict of Interest

H.4 ORGANIZATIONAL CONFLICT OF INTEREST

(a) DEFINITIONS. For the purposes of this clause:

i. “Organizational Conflict of Interest” (OCI) means that because of other activities or relationships with other entities, a Contractor is unable, or potentially unable, to render impartial assistance or advice to the Government, the Contractor’s objectivity in performing the contracted work is or might be otherwise impaired, or a Contractor is in a position to have an unfair competitive advantage as a result of the knowledge, information, and experience gained during the performance of this contract. All actual or potential OCI situations shall be handled in accordance with Federal Acquisition Regulations (FAR) Subpart 9.5.

ii. “Contractor” for the purpose of these OCI provisions means the Contractor, means the organization entering into this contract with the Government including any company or current or future entity such as a business organization of which it is a part (i.e., parent company), its current or future subsidiaries, divisions, affiliates, any joint venture involving the Contractor, and any entity which the Contractor or any successor or assignee of the Contractor uses currently or in the future as a prime Contractor, subcontractor, or consultant to either the prime Contractor or a subcontractor under this contract. “Affiliates” is as defined in FAR Subpart 2.1.

iii. “USSOCOM” means: USSOCOM Headquarters, USSOCOM Components, Theater Special Operations Commands (TSOC), Joint Special Operations Command (JSOC) and any future entity USSOCOM may establish to support its mission.

(b) Providing services under this contract is of such a nature that it is likely to create an organizational conflict of interest as contemplated and defined by Subpart 9.5 of the FAR for prime Contractors and their respective subcontractors. Contractors and their respective subcontractors shall not engage in contract activities which may impair its ability to render unbiased advice and recommendations, or in which it may gain an unfair competitive advantage as a result of the knowledge, information and experience gained during the performance of this contract.

(c) The guidelines and procedures of FAR Subpart 9.5 Organizational and Consultant Conflicts of Interest and FAR Part 3 Improper Business Practices and Personal Conflicts of Interest will be used in identifying and resolving any issues of conflict of interest.

(d) The contractor shall include this requirement in its entirety in all subcontracts of any tier, which involve access to information, or situations/conditions covered by the preceding paragraphs, substituting “subcontractor” for “Contractor” where appropriate.

(e) ACCESS TO PROPRIETARY INFORMATION.

i. The contractor shall train and inform employees (including subcontractor employees) performing on this contract of all regulatory requirements regarding the release and safeguarding of information, including but not limited to, Subpart 209.505-4 of the DFARS, DFARS 252.204-

7000, DFARS 252.204-7012.

ii. The Contractor shall execute a Contractor-Employee Personal Financial Interest Disclosure and Protection of Sensitive Information Agreement as appropriate before allowing access to any proprietary information and prior to the employee (including subcontractor employees) beginning performance under this contract.

iii. The Contractor agrees to enter into a written agreement with any firm whose proprietary data is used in connection with performance of the contract, to protect all proprietary information from unauthorized disclosure or use for as long as it remains proprietary, and to furnish the Contracting Officer with executed copies of all such agreements within 5 business days of signing such agreements and to refrain from using any proprietary information in supplying to the Government goods or services or for any purpose other than that for which it is intended. If the Contracting Officer determines that said written agreement is not adequate, the Government has the right to withhold access to the proprietary data. The Contractor agrees that any data furnished by the Government shall be used only for performance under this contract, and all copies of such data shall be returned to the Government upon completion of the effort and no duplication of data is permitted. Any data furnished by the Government containing trade secrets or commercial or financial data of other Contractors shall be treated as proprietary data. Additionally, the Contractor shall not disclose outside of USSOCOM Government Officials assigned to this contract any data, products, results, or recommendations generated in the performance of this contract except as may be expressly directed by the Contracting Officer.

(f) RESTRICTIONS OR RESTRAINTS.

i. The Contractor’s attention is directed to restraints on future procurements which is consistent with and in accordance with FAR 9.507-1 and 9.507-2.

ii. The efforts to be performed by the Contractor under this contract are of such a nature that significant potential OCIs exist on this contract and on future procurements(s). The scope of support required by this contract includes, but is not limited to, providing systems engineering and technical direction, preparing specifications or work statements, providing evaluation services, and accessing proprietary information. To avoid potential conflicts of interest resulting from the support services provided and to avoid prejudicing the best interest of the Government, the right of the contractor to participate in future procurements of products, systems, components, and/or services that are the subject of any work under this contract, shall be restrained as described below and in accordance with the requirements of FAR Subpart 9.5.

The terms of the restraint are not subject to negotiation; however, any desired clarifications or explanations concerning this clause may be directed in writing to the Contracting Officer.

iii. The contractor agrees that, during the period of performance of this contract and any resultant task orders (whichever is later), the contractor, any affiliate of the Contractor, any subcontractor, officers of the company participating in the contract, any joint venture involving the Contractor, any entity into or with which it may subsequently merge or affiliate, or any other successor or assignee of the Contractor, shall not furnish to the United States Government, either as a prime Contractor or as a subcontractor, or as a consultant to a prime Contractor or subcontractor, any products, systems, components and/or services. This exclusion does not apply to any competition for the same services furnished pursuant to this contract, which include, but are not limited to, the following wide-ranging list of required in-scope support anticipated and described in the PWS: Requirements Generation and Analysis;

Acquisition and Acquisition Program Management; Technical Analysis/Evaluation; Budget Planning; Program Planning; Business Process Reengineering; Expertise for Advisory Services;

Studies & Analysis; Systems Engineering; Strategic and Operational Planning; Technical Documentation Development; Engineering and Technical Services; Engineering Documentation support; Plans and Framework; and Force Structuring support. The Contractor is reminded of their responsibility to carefully review the specific services required within subsequent future task order awards during consideration to participate.

i. Nothing in this requirement is intended to prohibit or preclude the Contractor from marketing or selling to the United States Government its product lines in existence on the effective date of this contract; nor, shall this requirement preclude the Contractor from participating in research and development or delivering any design development model or prototype of any such equipment. Additionally, sales of catalog or standard commercial items not the subject of any restraint term herein are exempt from this requirement.

ii. The Contractor may be required to perform technical evaluation of Contractor offers and/or products as well as advisory and assistance services relative to the same. In these instances, the Contractor shall not evaluate or advise the Government concerning its own products or activities.

(g) REMEDIES

i. Notwithstanding paragraph 3(c) above, if the Contractor was aware, or should have been aware, of an organizational conflict of interest prior to the award of this contract or becomes, or should become, aware of an organizational conflict of interest after award of this contract and does not make an immediate and full disclosure in writing to the Contracting Officer, the Government may terminate this contract for default.

ii. In the event the Contractor, or any of its employees, agents, or subcontractors fail to comply with the provisions of this clause, such non-compliance shall be deemed a material breach of contract for which the Government reserves the right to terminate the contract for default and/or resort to such other rights and remedies as provided for under the basic contract.

iii. In the event that a task order requires activity that would create an actual or potential conflict of interest, the Contractor shall immediately notify the KO of the conflict, submit a plan for mitigation, and not commence work until specifically notified by the KO to proceed; or identify the conflict and recommend to the KO an alternate approach to avoid the conflict.

iv. If the Contractor, after award, discovers a potential organizational conflict of interest, a prompt and full disclosure shall be made in writing to the contracting officer. This disclosure shall include a description of the actions the Contractor has taken or proposes to take to avoid or mitigate the conflict.

(h) PERSONAL CONFLICTS OF INTEREST.

i. All Contractor personnel (to include subcontractors and consultants) who will be personally and substantially involved in the performance under SEPS which requires the Contractor to act on behalf of or provide advice with respect to any phase of a procurement shall execute and submit an “Employee/Contractor Non-Disclosure Agreement” form. The KO will provide the appropriate nondisclosure form specific to the procurement.

ii. The Contractor shall be responsible for identifying and preventing personal conflicts of interest of their employees. The Contractor shall prohibit employees who have access to non-public information by reason of performance on a Government contract from using that information for personal gain.