OCI Industry Day Briefing.pptx

OCI Mitigation at ESC

Office of the Staff Judge Advocate Hanscom AFB, MA

Organizational Conflict of Interest Definition

FAR 2.101

Because of other activities or Relationships . . .

- a person is unable or potentially unable to render impartial assistance or advice, or

- the person’s objectivity … is or might be impaired, or

- a person has an unfair competitive advantage.

Governing FAR Provisions

FAR 9.504

- Potential conflicts of interest must be mitigated before contract award

- Contracting officers should obtain the advice of legal counsel and technical experts in evaluating potential conflicts

Governing FAR Provisions

FAR 9.505

- Each individual situation should be examined on the basis of its particular facts and the nature of the proposed contract

- Evaluation requires the exercise of common sense, good judgment, and sound discretion

GAO Precedent Aetna Government Health Plans, Inc., B-254397.15 et al., July 27, 1995, 95-2

CPD ¶ 129

- In some cases, an OCI cannot be mitigated

Types of OCI Biased Ground Rules

- Systems Engineering and Technical Direction

(FAR 9.505-1)

- Preparation of Statement of Work; Requirements

(FAR 9.505-2)

Impaired Objectivity

- Providing Evaluation Services

(FAR 9.505-3)

Unequal Access to Information

- Access to Proprietary Information

(FAR 9.505-4)

ESC OCI Review Panel ESC/CC Policy Memos:

#08-005, 16 Jun 08 #04-005, 19 Mar 04

- Established ESC OCI Review Panel to ensure ESC OCI policy is consistently applied throughout the Center

- Chaired by Senior members of Contracting (ESC/PK), the Legal Office (ESC/JA), the Acquisition Center of Excellence (ESC/AE), and the Chief of Contracting for Plans and Programs

(ESC/XPK)

ESC OCI Review Process OCI Plan from prime contractor to Contracting Officer (prime contractor incorporates all subcontractor OCI plans) Contracting Officer to program team Those inputs go to Program Attorney Consolidated comments go to ESC OCI Review Panel

OCI Mitigation Organization Charts (Prime & Subcontractors)

- One chart showing current organization and reporting chain up through parent company

- Second chart showing new corporate structure and reporting chain if restructure of Organization is proposed as mitigation

- Organization chart needed for each member of your team (Prime & Subcontractors)

Contract Types with Potential OCIs

- Systems Contracts or Programs

- Advisory & Assistance (A&AS) Contracts (Program Office Support, ITSP, etc.)

OCI Firewalls (5 Factor Mitigation)

- Isolate Work in Separate Business Unit

- Geographic & Physical Separation

- Independent Management & Reporting Chains

- Prohibition Against Transfer of Personnel

- Prohibition Against Transfer of Information

OCI Mitigation Plans Administrative Section

- Definitions

- OCI Training for new and existing employees

- Employee Transfer Rules

- Information Transfer Rules

- OCI Enforcement Employee OCI reporting requirements Consequences for OCI violations Disclosure of violations to Government

- OCI Certification

- Nondisclosure Agreement

OCI Mitigation Plans OCI Mitigation Section

- Separate Section for Prime and each Subcontractor

- Organization Chart

- Agree to Adopt Administrative Section (or explain any deviations)

- Identify and Mitigate Potential OCIs

Identify & Mitigate Potential OCIs Identify All Divisions or Business Units (Combine within by Systems / A&AS Contracts)

- Location

- Explain the Management and Reporting Chain

- Identify & Explain Contracts in the Division or Business Unit with Potential OCIs

Identify the Potential OCIs

- Analyze work under specific contracts for actual or potential conflicts of interest and conclude whether a conflict of interest exists

Propose Mitigation Strategies

- Propose concrete solutions for mitigating any conflicts of interest that have been identified

Firewalls (5 Factor Mitigation Analysis) Restructure of organization and reporting chains Other steps the contractor will take to preclude the perception that it will favor its own products or services

Conclusion ESC OCI Review Process Obtain OCI Mitigation Plan Outline Submit plans to the Contracting Officer