E-OMS_OCI_Clause_Draft_for_FBO.pdf

EGLIN-H001 ORGANIZATIONAL CONFLICT OF INTEREST (OCI) (JUL

2014)

(a) In order that the Government may (1) prevent conflicting roles which might bias or appear to bias the judgment or objectivity of the Contractor or Participating Organizations, (2) ensure effective communication with organizations whose proprietary products are tested at Eglin or whose proprietary information is required for the performance of efforts hereunder, (3) maintain Eglin's reputation as an independent and impartial tester, and (4) comply with statutory requirements concerning operational test and evaluation, the Contractor and its Participating Organizations will be restricted as set forth in paragraph (c) below

(b) The following definitions apply:

"Advisory and Assistance Services Firm" means an entity that performs, or has parent companies, divisions, subsidiaries, or affiliates that perform advisory and assistance services as either a prime or subcontractor in support of Air Force Test Center organizations.

"Contractor" means the business entity receiving the award of this contract, its parent companies, divisions, subsidiaries, and affiliates.

"Original Equipment Manufacturer" means an entity that sells or competes with, or has parent companies, divisions, subsidiaries, or affiliates that sell or compete with, systems or subsystems reasonably likely to be tested utilizing the support services under this contract.

"Participating Organization" means any private entity other than the Contractor participating in the performance of requirements of this contract under any subcontract, teaming arrangement, or other agreement or arrangement.

Organizations merely cooperating (e.g., providing information) to enable the Contractor or a Participating Organization to perform shall not be deemed to be "participating" hereunder.

"Proprietary Information" means all information designated herein or marked with a legend to that effect and either entitled to protection as such in accordance with recognized legal principles or under a clause in a relevant government contract.

Examples include technical data, software, or software documentation delivered under a government contract with other than unlimited rights, trade secrets, and sensitive financial information. Proprietary information may appear in cost or pricing data or may involve classified information. Test data, test results, product performance, and product characteristics of an item under test, which become known to the Contractor or Participating Organization by virtue of performance of this contract are rebuttably presumed to be proprietary information and shall be treated as such by the Contractor or Participating Organization unless known to be otherwise.

(c) The parties recognize that the Contractor will play a very visible and responsible role in the fulfillment of Government requirements at Eglin AFB, FL and Wright-Patterson AFB, OH. Both the Government and other contractors must have the utmost confidence that the Contractor's judgment and test activities are objective, impartial, and independent, and that the Contractor will protect proprietary information it obtains under this contract. To achieve these goals:

(1) Any Original Equipment Manufacturer shall be excluded from participating in this contract as the Contractor or as a Participating Organization.

(2) Any joint venture or any other type of partnership, or any limited liability company or similarly structured legal entity, comprised of a partner or member that is an Original Equipment Manufacturer, shall be excluded from participating in this contract as the Contractor or as a Participating Organization.

(3) Any Advisory and Assistance Services Firm shall be excluded from participating in this contract as the Contractor or as a Participating Organization.

(4) Any joint venture or any other type of partnership, or any limited liability company or similarly structured legal entity, comprised of a partner or member that is an Advisory and Assistance Services Firm, shall be excluded from participating in this contract as the Contractor or as a Participating Organization.

(5) The terms of the Contractor's approved conflict of interest mitigation plan, dated XX XXXXX 20XX, are hereby incorporated by reference as requirements of this clause.

(6) If, at any time during the period of performance of this contract, the

Contractor desires to amend its conflict of interest mitigation plan, the Contractor shall submit for the Contracting Officer's approval an updated conflict of interest mitigation plan. Each iteration of a conflict of interest mitigation plan shall comply with the acceptability criteria set forth in the solicitation for this contract and shall be approved by the Contracting Officer if it so complies. Once approved, an updated conflict of interest mitigation plan shall be incorporated by reference as requirements of this clause.

(7) Any joint venture or any other type of partnership, or any limited liability company or similarly structured legal entity, having the Contractor and an Original Equipment Manufacturer as partners or members, regardless of the entity’s purpose, constitutes an apparent or an actual conflict of interest. If, at any time during the period of performance of this contract, the Contractor forms a joint venture or any other type of partnership, or any limited liability company or similarly structured legal entity, with an Original Equipment Manufacturer for any purpose, then the Contractor shall submit for the Contracting Officer’s approval an updated conflict of interest mitigation plan. The Contracting Officer shall determine in writing whether the updated conflict of interest mitigation plan sufficiently mitigates the conflict of interest. If the Contracting Officer determines that the updated conflict of interest plan does not sufficiently mitigate a conflict of interest, then the Contracting Officer may require the Contractor to revise and resubmit the updated conflict of interest plan.

(8) (i) Where an employee of the Contractor or a Participating Organization is involved in test or evaluation of systems or subsystems, the Contractor or the Participating Organization shall be precluded from providing that system or subsystem to the Government as either a prime or subcontractor.

(ii) Where an employee of the Contractor or a Participating Organization is involved in test or evaluation of specific systems or subsystems of another company, the Contractor or the Participating Organization shall be precluded from award of any contract or subcontract resulting from an acquisition in which another company proposes the systems or subsystems tested by the Contractor.

(iii) The restrictions in (i) and (ii) shall be in effect through award of the next production contract for the systems or subsystems in question.

(9) If the Contractor was an Original Equipment Manufacturer prior to performing this contract, then no person employed by the Contractor for the development or production of a system or subsystem may be involved under this contract in any initial operational test and evaluation of that system or subsystem.

(10) If the Contractor or a Participating Organization, in the performance of this contract, assists the Government in the preparation of a statement of work, or provides information leading directly, predictably, and without delay to the preparation of a statement of work to be used by the Government for competitive procurement of supplies or services, the Contractor or Participating Organization shall be ineligible to participate in any competition with respect to the work described in said statement of work as either a prime or subcontractor. This restriction shall be in effect until award of the resultant contract or until completion of this contract, whichever is later. This restriction shall not preclude the Contractor or Participating Organization from award of a contract which is a follow-on to this contract.

(11) Performance of work under this contract requires access to competition sensitive information and proprietary information of other companies. The Contractor and its Participating Organizations are required to protect such information from unauthorized disclosure, and to refrain from using it for any purpose other than that for which it was furnished, so long as it remains proprietary or competition sensitive. The Contractor and its Participating Organizations may be required to enter into bilateral agreements with the originator of information regarding its protection and use. This subparagraph is not intended to protect information which is or becomes available to the Contractor or Participating Organization through another legitimate source without restriction.

(d) The Contractor agrees to accept and to complete all issued written task directives, and not to contract with government prime contractors or subcontractors in such a way as to create a conflict of interest which would violate the terms of this clause.

(e) The above restrictions shall be included in all subcontracts, teaming arrangements, and other agreements calling for performance of work required by this contract, unless excused in writing by the Contracting Officer.

(f) OCI violations are a significant contract performance issue. If the Contractor becomes an OEM or an Advisory and Assistance Services Firm or incurs other potential OCI violations that could impose significant contract performance issues then the CO will utilize appropriate consequences such as award fee decrements, contract termination, suspension and debarment, or other appropriate remedies or administrative actions.