MIOES OCI Guiding Principles (Final).pdf

Guiding Principles for MIOES OCI

Approved for Public Release 23-MDA-11542 (26 Jul 23)

GUIDING PRINCIPLES FOR MISSILE DEFENSE AGENCY INTEGRATION &

OPERATIONS ENTERPRISE SOLUTIONS ORGANIZATIONAL CONFLICTS OF

INTEREST

(1 Nov 2023)

The Missile Defense Agency (MDA) Integration & Operations Enterprise Solutions

(MIOES) Organizational Conflict of Interest (OCI) Guiding Principles are based upon Federal Acquisition Regulation (FAR) Subpart 9.5, Department of Defense FAR Supplement (DFARS) Subparts 203.1 and 209.5, and decisions of the Government Accountability Office (GAO) and federal courts.

The Agency prefers that offerors competing for MIOES requirements are free of OCIs.

MDA will thoroughly review mitigation strategies to ensure they are sufficiently detailed and adequately mitigate all OCI concerns. OCI waivers will require review and approval by the MDA Director. Industry is encouraged to avoid OCIs to the maximum extent practicable and to submit OCI-free proposals for MIOES 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.”

OCIs 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 non-public information as part of its performance of a contract and where that information may provide a competitive advantage. 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.

Offerors should also be cautious of the use of former government employees, including military, in the development of their MIOES proposals. Use of former government employees under certain circumstances could preclude a potential offeror from competing based on an unfair competitive advantage stemming from the former government employee’s access to non-public, competitively useful, information 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 MIOES solicitation and contract:

1. The Agency requires objective and unbiased support across the entire Missile Defense

System. 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 MIOES requirements must have resolved OCIs at the time of award (or have an acceptable avoidance/mitigation strategy).

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, MDA will review mitigation plans thoroughly to ensure they are sufficiently detailed and adequately mitigate all OCI concerns.

4. OCI waivers require review and approval by the MDA Director.

5. Performance of Technical, Engineering, Advisory, and Management Support (TEAMS)- Next contracts has the potential to create OCIs on the MIOES effort. Specifically, performance of the following TEAMS-Next contracts may create potential Impaired Objectivity or Unequal Access OCI concerns: Information Technology and Cybersecurity Management (ITCM); Cybersecurity Compliance & Risk Management (CCRM); Missile Defense (MDS) Engineering; Security Operations and Counterintelligence; Test Support; Specialized Engineering Analyses (SEA); Facilities, Logistics, Environmental (FLE); Program Planning and Acquisition (PPA); and Contracting, Compliance, Cost/Price, and Operations (C3PO). Note that this list does not identify all of the TEAMS-Next contracts that could create an OCI. Offerors competing for MIOES should carefully analyze the support provided by their team members under a TEAMS-Next contract.

6. Conflicts may also exist between MIOES contracts and contracts awarded by other

Agencies in support of MDA through the Inter/Intra-Agency Acquisition Review process. Such conflicts must be resolved 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 all of their work supporting MDA relative to the guiding principles and conflict areas identified above.

7. OCI management plans will be evaluated during source selection and incorporated at the time of award for MIOES contracts. Prime contractors will be contractually bound to follow their OCI management and mitigation plans (if applicable) and manage potential and actual OCIs at all tiers of the supply chain. Prime contractor performance in the area of OCI management will be assessed under the Contract Performance Assessment Reporting System.

8. 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 un-awardable should the government determine their mitigation strategy is inadequate.