ITOCIrevised5_(3).pdf

FEMA recognizes the potential for organizational conflicts of interest (OCI) that may exist as it develops and finalizes its requirements for the Information Technology lines of business. As the requirements are finalized, FEMA reserves the right to further refine its OCI guidance.

FEMA is providing guidance below and answers to the OCI questions regarding the Security line of business (see attachment). It is the responsibility of all offerors to become familiar with Federal Acquisition Regulation Part 9 and the guidance set forth below.

FEMA anticipates that there are lines of business where a potential organizational conflict of interest exists and mitigation will not be feasible. Consistent with the slides presented at Industry Day, FEMA anticipates that mitigation may not be feasible for contract awards in two or more of the following lines of business: Program Management; Mission Needs; Applications Development/ Engineering/Sustainment; Operations/Maintenance; IV&V; Security Assessment/Authorization services; Security Emerging Technologies; Security Information Security Systems Operations; and the Security Operations Center.

For lines of business where a potential OCI exists and mitigation may be possible, offerors are encouraged to ensure that proposed mitigation measures are adequately addressed. Offerors shall address the potential for unequal access to proprietary and/or source selection information as well as impaired objectivity.

The solicitations and contracts will include one or both of the provisions below, (HSAR) 3052.209-72, Organizational Conflict of Interest and (HSAR) 3052.209-73, Limitation of Future Contracting.

3052.209-72 Organizational Conflict of Interest.

ORGANIZATIONAL CONFLICT OF INTEREST

(JUN 2006)

(a) Determination. The Government has determined that this effort may result in an actual or potential conflict of interest, or may provide one or more offerors with the potential to attain an unfair competitive advantage. The nature of the conflict of interest and the limitation on future contracting is described below.

Contractors, (under the terms of this contract), may be expected to deliver or perform information technology services to include one or more FEMA IT lines of business, thus placing the contractor in a potential organizational conflict of interest (OCI). This could serve as a basis for excluding the contractor from supplying services to the Federal Emergency Management Agency. The nature of this conflict occurs: (1) When either the contractor, core team member(s) and/or subcontractor (a) has access to procurement sensitive information that may provide it an unfair advantage in competing for some or all of the proposed effort; or (b) has drafted or recommended specifications or statements of work or substantially complete statements of work; (2) the contractor reviews the work of itself or any affiliates; or (3) offers advice or planning in areas in which the contractor or any affiliates have financial interests tied to particular solutions.

Under these circumstances, the potential could exist for impaired objectivity and judgment under the contract resulting from this solicitation, and for an unfair competitive advantage in future procurements. Therefore, due to the nature of the work being performed, the contractor shall have restrictions on future contracting as identified in HSAR clause 3052.209-73.

(b) If any such conflict of interest is found to exist, the Contracting Officer may (1) disqualify the offeror, or (2) determine that it is otherwise in the best interest of the United States to contract with the offeror and include the appropriate provisions to avoid, neutralize, mitigate, or waive such conflict in the contract awarded. After discussion with the offeror, the Contracting Officer may determine that the actual conflict cannot be avoided, neutralized, mitigated or otherwise resolved to the satisfaction of the Government, and the offeror may be found ineligible for award.

(c) Disclosure: The offeror hereby represents, to the best of its knowledge that:

___ (1) It is not aware of any facts which create any actual or potential organizational conflicts of interest relating to the award of this contract, or

___ (2) It has included information in its proposal, providing all current information bearing on the existence of any actual or potential organizational conflicts of interest, and has included a mitigation plan in accordance with paragraph (d) of this provision.

(d) Mitigation. If an offeror with a potential or actual conflict of interest or unfair competitive advantage believes the conflict can be avoided, neutralized, or mitigated, the offeror shall submit a mitigation plan to the Government for review. Award of a contract where an actual or potential conflict of interest exists shall not occur before Government approval of the mitigation plan. If a mitigation plan is approved, the restrictions of this provision do not apply to the extent defined in the mitigation plan.

(e) Other Relevant Information: In addition to the mitigation plan, the Contracting Officer may require further relevant information from the offeror. The Contracting Officer will use all information submitted by the offeror, and any other relevant information known to DHS, to determine whether an award to the offeror may take place, and whether the mitigation plan adequately neutralizes or mitigates the conflict.

(f) Corporation Change. The successful offeror shall inform the Contracting Officer within thirty

(30) calendar days of the effective date of any corporate mergers, acquisitions, and/or dive structures that may affect this provision.

(g) Flow-down. The contractor shall insert the substance of this clause in each first tier subcontract that exceeds the simplified acquisition threshold.

(End of provision)

3052.209-73 Limitation of future contracting.

LIMITATION OF FUTURE CONTRACTING

(JUN 2006)

(a) The Contracting Officer has determined that this acquisition may give rise to a potential organizational conflict of interest. Accordingly, the attention of prospective offerors is invited to FAR Subpart 9.5--Organizational Conflicts of Interest.

(b) The nature of this conflict is (1) When either the Prime contractor, core team member(s) and/or subcontractor (a) has access to procurement sensitive information that may provide it an unfair advantage in competing for some or all of the proposed effort; or (b) drafts or recommends specifications or statements of work or substantially complete statements of work;

(2) the contractor reviews the work of itself or any affiliates; or (3) offers advice or planning in areas in which the contractor or any affiliates have financial interests tied to particular solutions.

(c) The restrictions upon future contracting are as follows:

(1) If the Contractor, under the terms of this contract, or through the performance of tasks pursuant to this contract, is required to develop specifications or statements of work that are to be incorporated into a solicitation, the Contractor shall be ineligible to perform the work described in that solicitation as a prime or first-tier subcontractor under an ensuing DHS contract. This restriction shall remain in effect for a reasonable time, as agreed to by the Contracting Officer and the Contractor, sufficient to avoid unfair competitive advantage or potential bias (this time shall in no case be less than the duration of the initial production contract). DHS shall not unilaterally require the Contractor to prepare such specifications or statements of work under this contract.

(2) To the extent that the work under this contract requires access to proprietary, business confidential, or financial data of other companies, and as long as these data remain proprietary or confidential, the Contractor shall protect these data from unauthorized use and disclosure and agrees not to use them to compete with those other companies.

(End of clause)