Recently one of Skyway’s clients asked to build an Organizational Conflict of Interest (OCI) plan for a contract the company had with a defense agency. The contract was a multi-award IDIQ where each contractor would be supporting various offices within the agency. It was a complicated contractual relationship that the government had created. The possibility of OCI issues could occur, and the company wanted to have the training to avoid potential problems. Today, many contracts imbed a contractor within an agency where in many instances, contractor personnel responsibilities grow to a point where an OCI could become an issue.
FAR part 9.505, General Rules, prescribe limitations on contracting as the means of avoiding, neutralizing, or mitigating organizational conflicts of interest that might otherwise exist in the stated situations. Each individual contracting situation should be examined based on its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and if it does, the development of an appropriate means for resolving it. The two underlying principles are:
(a) Preventing the existence of conflicting roles that might bias a contractor’s judgment; and
(b) Preventing unfair competitive advantage. In addition to the other situations described in this subpart, an unfair competitive advantage exists where a contractor competing for the award of any Federal contract possesses proprietary information that was obtained from a Government official without proper authorization. Source selection information that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract.
If your company is providing support to the government, the possibility of conflict arises from the possibility that your personnel could be privy to information for an acquisition that could cause an OCI issue. OCI is different from the inherent advantage that an incumbent has when proposing a renewal contract. That is not an OCI in of itself. However, companies need to be careful about requirements generation and the appearance that the requirement is tailored to their company by personnel working in that office. CO and CORs need to conduct any acquisition meetings without contractor support personnel present.
In the case of companies providing support to the government to identify solutions, the company must be aware that they may find that they are precluded from proposing on the resulting RFP in generating requirements. The best example I can give is a contractor’s engineers help develop a specification for a widget – that contractor now cannot bid to produce that widget. I have seen larger companies develop OCI plans that developed firewalls between different offices to allow for one office to work on a project, then another office would want to submit a proposal to an RFP. Such plans have to be approved by the government.
Many of our clients are providing software and IT systems to the government agency to facilitate work. I recommend that your company begin to develop OCI plans to ensure that your employees understand the need to be vigilant of not putting your company in an OCI situation. The government lacks the expertise in many areas that industry can offer. Industry must realize that crossing that line to be part of the government team does limit the company’s ability to provide a proposal of work that support personnel may have had a part in developing. If you find your company facing these issues, I would suggest contacting Skyway to help you navigate this sometimes complicated issue.
