Appendix_A_Section_H_3_replacement_pages.docx

Quality Innovation Network (QIN) Quality Improvement Organization (QIO) HHSM-500-2014-RFP-QIN-QIO (Amendment 00001)

H.3 CONFLICT OF INTEREST

A. General: It is imperative that the Contractor and the services provided to Medicare and/or Medicaid beneficiaries under this contract be free, to the greatest extent possible, of all conflicts of interest. Except as provided below, the Contracting Officer shall not enter into or maintain a contract with a Contractor that the Contracting Officer determines has, or has the potential for, an unresolved conflict of interest. However, the Contracting Officer may contract with a Contractor that has an unresolved conflict of interest after all mitigation efforts have been utilized if he/she determines that it is in the best interest of the Government to do so.

B. Disclosure: Contractors must disclose all actual, apparent and potential conflicts of interest to the Contracting Officer during the term of the contract in accordance with section H.3.C (below). The Contractor shall have programs in place to identify, evaluate and mitigate all actual, apparent and potential conflicts of interest that preclude, or would appear to preclude, the Contractor from rendering impartial assistance or advice on work performed for this contract, or the Contractor’s objectivity in performing the contract work is or might be otherwise impaired, or the Contractor has or obtains an unfair competitive advantage. The Contractor’s Compliance Program Attestation submitted with its contract proposal for award of a contract, is incorporated as a part of this contract in Section J, Attachment J.11, and includes the Contractor’s plan to mitigate all actual, apparent and potential conflicts of interest identified during the term of the contract and certification that all work to be performed under this contract is free of unresolved conflicts of interest.

C. Definitions:

1. Organizational Conflict of Interest (OCI) - An actual, potential or apparent (perceived) organizational conflict of interest means that because of other activities or relationships with another entity(ies), an entity is unable, or potentially unable, to render impartial assistance or advice to the Government, or the entity(ies)’s objectivity in performing the contract work is or might be otherwise impaired, or the entity(ies) has/have an unfair competitive advantage. For purposes of this contract, the OCI definition includes direct or indirect relationships including, but not limited to, the contractor and its parent company, subsidiaries, affiliates, subcontractors, clients, officers, directors, and managers.

There are three (3) different types of OCIs as follows:

2. Personal Conflicts of Interests (PCI) - An actual, potential or apparent (perceived) personal conflict of interest means that because of other activities or relationships, both personal and financial, 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. For purposes of this contract, the PCI includes direct or indirect relationships including, but not limited to, the contractor and its parent company, subsidiaries, affiliates, subcontractors, clients, officers, directors and managers.

3. Family Member or Other Personal Affiliations: - Respondent (officers, board of director members, other directors (including medical directors) and managers), and his/her spouse, domestic partner and/or dependent children (daughter, son, step-daughter, step-son) living in the household; and/or any dependent of the respondent as defined for Federal Tax purposes that may create an actual or apparent conflict of interest.

4. Affiliates - means associated business concerns or individual(s) if, directly or indirectly either one controls or can control the other; or a third party controls or can control both.

For purposes of this contract, affiliate control or influence includes, but is not limited to:

a) Interlocking management or ownership;

b) Identity of interests among family members;

c) Shared facilities and equipment;

d) Common use of employees; or

e) A business concern organized just prior to, or immediately following, the release of a solicitation or request for information, which has the same or similar management, ownership, or principal employees as the offeror or contractor.

Any business, whether or not it is organized for profit or located in the United States or its outlying areas, or person may be found to be an affiliate. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists.

5. Financial Interests/Relationship – Financial interests or financial relationships may arise from:

a) Direct or indirect ownership or investment interest (including an option or non-vested interest) in any entity that exists through equity, debt, or other means and includes any indirect ownership or investment interest no matter how many levels removed from a direct interest;

b) Compensation, including wages, salaries, commissions, professional fees, or fees for business referrals;

c) Current or known future contracts or arrangements includes, but is not limited to, an entity that may create one or more of the three forms of OCI.

d) Consulting relationships, including commercial and professional consulting and service arrangements, scientific and technical advisory board memberships, or serving as an expert witness in litigation;

e) Services provided in exchange for honorariums or travel expense reimbursements;

f) Research funding or other forms of research support;

g) Healthcare related investment in the form of stock or bond ownership, including healthcare sector mutual fund investments;

h) Healthcare business ownership or partnership interests;

i) Patents, copyrights, and other intellectual property interests;

j) Seeking or negotiating for prospective employment or business; or

k) Gifts, including travel.

D. Identification of conflict:

1. The Contracting Officer determines that a Contractor has an actual or apparent conflict of interest, or the potential for the conflict exists, if-

a) The Offeror or Contractor is an entity described in paragraph H.3.C of this section; or

b) The Offeror or Contractor has a present, or establishes a future, direct or indirect financial relationship with an entity described in paragraph H.3.C of this section.

2. A financial relationship may exist either—

a) Through a Contractor's parent company, subsidiaries, affiliates, subcontractors, or current clients; or

b) From the activities and relationships of the officers, directors (including medical directors), or managers of the Contractor and may be either direct or indirect. An officer, director, or manager has an indirect financial relationship if an ownership or investment interest is held in the name of another but provides benefits to the officer, director, or manager.

Examples of indirect financial relationships are, but are not limited to, holdings in the name of a spouse or dependent child of the officer, director, or manager and holdings of other relatives who reside with the officer, director, or manager.

3. For the purpose of identifying entities with conflicts of interest above, the entity is one that-

a) Prepared work or is under contract to prepare work that would be reviewed under the contract;

b) Is affiliated, as that term is explained in H.3.C.4, with a provider or supplier to be reviewed under the contract.

4. The Contracting Officer may determine that an Offeror or Contractor has a conflict of interest, or the potential for a conflict exists, based on the following:

a) Apparent conflicts of interest. An apparent conflict of interest exists if a person believes that the Offeror or Contractor would have a conflict of interest in performing the requirements of a contract under this subpart. No inappropriate action by the Offeror or Contractor is necessary for an apparent conflict of interest to exist.

b) Other contracts and grants with the Federal Government.

5. Post-award conflicts of interest:

a) In addition to the conflicts identified in this section regardless of when such conflict may arise, the Contracting Officer considers that a conflict of interest has occurred if during the term of the contract—

· The Contractor receives any fee, compensation, gift, payment of expenses, or any other thing of value from any entity that is reviewed or contacted during the normal course of performing activities under the contract; or

· The Contracting Officer determines that the Contractor's activities are creating a conflict of interest.

6. In the event the Contracting Officer determines that a conflict of interest exists during the term of the contract, the Contracting Officer may take action including, but not limited to:

· Not renewing the contract for an additional term;

· Modifying the contract; or

· Terminating the contract

E. Exception. The Contracting Officer may contract with a Contractor that has an unresolved conflict of interest if the Contracting Officer determines that it is in the best interest of the Government to do so. This waiver of business risk to the government will generally include an oversight component. A waiver must be approved by the Head of Contracting Activity.

F. Contractor's responsibility with regard to subcontractors. The Contractor shall require its Subcontractors to follow the same procedures for identifying, evaluating and resolving actual, apparent or potential conflicts of interest as contained herein. The Contractor is responsible for determining throughout the life of this contract whether a conflict of interest exists in any of its proposed Subcontractors at any tier and is responsible for ensuring that the Subcontractors have mitigated any actual, apparent and potential conflicts of interest on a continuous basis. The Contractor shall maintain all documentation necessary to support its determination that its Subcontractors have mitigated any actual, apparent or potential conflict of interest. The Contracting Officer will continue to evaluate the Contractor’s assessment of Subcontractor OCIs and determine whether they have been resolved to the satisfaction of the Government.

Should the Subcontractor choose not to share its OCI Certificate submission with the Contractor, due to the proprietary information contained in an OCI Disclosure, CMS will assume the responsibility for evaluating and determining if the Subcontractor’s OCIs have been resolved. If the OCIs are not resolved to the satisfaction of the Government, the Contractor will be notified that the Subcontractor’s submission is unacceptable (without disclosing the details of the proprietary information). In this event, it will be the Contractor’s responsibility to ensure that its Subcontractor submits the required revised OCI disclosure to CMS timely.

G. Conflict of interest (OCI) evaluation:

1. Disclosure. The OCI Certificate must be maintained in accordance with this contract clause and contain the information specified in paragraphs H.3.C.5 (a) though (k) of this section as follows:

a) Disclosure of OCIs: A description of all business and/or contractual relationships and/or activities for the organization, as well as the financial interests or relationships (see (h)(5) below) of its officers, directors and managers, that a prudent business person and/or the Government would view as an actual, apparent or potential conflict of interest with the work to be performed under this contract.

b) Mitigation Plan: A description of the methods the Contractor will apply to mitigate any situations listed in the Certificate that could be identified as a conflict of interest.

c) Compliance Program: A description of the Contractor's program to monitor its compliance, and the compliance of its proposed Subcontractors, with the conflict of interest requirements as identified herein. If the Contractor is required to maintain a compliance program in accordance with FAR 3.10, Contractor Code of Business Ethics and Conduct, the OCI oversight should be a part of that compliance program. If applicable, the Contractor shall maintain its Contractor Code of Business Ethics and Conduct compliance program plan.

d) Audit Plan: A description of the Offeror's or Contractor's plans to contract with an independent auditor to conduct an annual conflict of interest audit.

e) Contracts: A description of all other Medicare, Medicaid, and/or commercial health care related contracts held by the Contractor, its parent company, subsidiaries, subcontractors or other affiliated entities.

f) OCI Certification: An affirmation, using language provided below, signed and dated by an official authorized to bind the Contractor:

I, (Name and Title), certify that to the best of my knowledge and belief: 1) I am an official authorized to bind the entity; 2) the information contained in the Conflict of Interest Certificate is true and accurate as of (Date) ; and 3) I understand that the Contracting Officer may consider any deception or omission in this Certificate to be grounds for non-consideration for contract award, modification or nonrenewal or termination of the current contract, and/or other contract or legal action.

g) Corporate and organizational structure (both entity and chain of command).

h) Financial Interests: Financial interests in other entities, including the following:

1) Percentage of ownership in any other entity.

2) Income generated from other sources.

3) A list of current or known future contracts or arrangements, regardless of size, with any-

i. Insurance organization or subcontractor of an insurance organization;

ii. Providers or suppliers furnishing health services (which can include universities with health systems) for which payment may be made under the Medicare or Medicaid programs; or

iii. Health research entities.

4) In the case of contracts or arrangements identified in accordance with paragraph H.3.G.1.(h)(3) of this section, the dollar amount of the contracts or arrangements, the type of work performed, and the period of performance.

5) The following information for all of the Contractor's officers, directors (including medical directors), and managers who would be, or are involved with, the performance of this contract:

i. The information required under paragraphs H.3.G.1 (a), H.3.G.1 (h) (3) and (4) of this section.

ii. The information specified in paragraphs H.3.G.1 (h)(1) and (2) of this section.

iii. Family Member or Personal Relationship Disclosure: For all of the Offeror’s or Contractor’s officers, directors (including medical directors) and other key personnel, the Conflict of Interest Certificate must also include disclosure of Family members and other personal relationships. For purposes of this section “Family member” means the respondent (officers, board of director members, other directors (including medical directors) and managers), and his/her spouse, domestic partner and/or dependent children (daughter, son, step-daughter, step-son) living in the household; and/or any dependent of the respondent as defined for Federal Tax purposes that may create an actual or perceived conflict of interest. (Please supply only known information. One does not need to seek this information out if it is not known.)

2. When disclosure is made, the Conflicts of Interest Certificate is submitted—

a) When the Contracting Officer requests a revision in the Certificate;

b) Within 45 days of any change in the information submitted in accordance with Section H.3. The first annual certification shall be submitted on the anniversary date that the contract became fully operational and annually thereafter; and

c) Annually submit conflict of interest certification by an independent auditor.

3. Evaluation. The Contracting Officer evaluates actual, apparent and potential conflicts of interest using the information provided in the Conflicts of Interest Certificate, as well as information from other sources in order to promote the effective and efficient administration of the Medicare and/or Medicaid program.

For each conflict identified, the Contracting Officer will evaluate the plan proposed to mitigate the conflict to determine if the mitigation plan will allow the Contractor to render impartial assistance or advice to the Government; or the Contractor’s objectivity in performing the contract work is not or will not be otherwise impaired; or the Contractor will not or has not obtained an unfair competitive advantage.

4. Conflict of Interest Resolution: Resolution of a conflict of interest is a determination that:

a) The conflict has been mitigated;

b) The conflict requires that the Contracting Officer modify an existing contract;

c) The conflict requires that the Contracting Officer terminate an existing contract; or

d) It is in the best interest of the Government to contract with the Offeror or Contractor even though the conflict exists.

5. Protection of proprietary information disclosed.

a) CMS protects disclosed proprietary information as allowed under the Freedom of Information Act (5 U.S.C. 552).

The Contracting Officer requires signed statements from CMS personnel with access to proprietary information that prohibits personal use during the procurement process and term of the contract.