Organizational Conflicts of Interest (OCI) NCMA Potomac Chapter March 19, 2013 Madonna Dougherty, Esq. Discussion Overview • OCI Defined per FAR 9.5 and GAO Decisions • PCOI/OCI Implications • Current OCI environment and trends • Identifying Potential Conflicts • Overview of OCI mitigation plans • Post Award OCI Management • Auditing Compliance • Subcontractors/Teaming OCI Management Definition of OCI per FAR 9.505 and GAO Decisions • Generally speaking an OCI occurs when: (FAR 9.505) – A contractor has a conflicting role that might bias their judgment or in some way influence a government competitive procurement ; OR – A contractor appears to have an unfair competitive advantage • Per GAO decisions (see Aetna, B-254397, July 1995) an OCI occurs when: – the contractor has an unfair competitive advantage if they have access to beneficial proprietary information other competitors do not have access to; – the contractor is presumed to bias the ground rules if due to current contract performance they are/have been in a position to influence the technical ground rules of a government competed solicitation, or; – the contractor is presumed to have impaired objectivity if they are evaluating or recommending their own product or services. OCI Perspectives • Present vs. Future Conflicts – Present issue: does the offeror have an OCI (based on past activities or conflicting business interests) that makes it ineligible for award of today’s contract? – Future issue: the offeror/contractor is eligible for award of the current contract, but the work may make the contractor ineligible for some future contract. • Perception vs. Actual OCI – Perceived future OCI must be mitigated just as any actual OCI must be resolved • Personal COI vs. OCI – Generally these are 2 distinct issues but it is important to vet personnel working on proposals and on-contract for conflicts and there are specific regulations which govern certain types of PCOI PCOI/OCI Implications • Personal Conflicts of Interest – “DOD has increasingly turned to contractors to fill roles previously held by government employees and to perform many functions that closely support inherently governmental functions, such as contracting support, intelligence analysis, program management, and engineering and technical support for program offices. This trend has raised concerns ….” • (Statement of David M. Walker, Comptroller General, Before the Subcommittee on Defense, Committee on Appropriations, House of Representatives, January 23, 2008.) – Statutory and regulatory provisions apply to government employees to address personal conflicts of interest. • Title 18 of the US Code addresses representational activities, postgovernment employment, financial interests, and payment for official actions. • Other statutes limit outside employment, limit permissible gifts, and impose other restrictions. • The Procurement Integrity Act also imposes restrictions on employees involved in the award or administration of contracts. Recent PCOI/OCI Regulations • Former DoD Officials, DFAR 252.203-7000 – New regulation Dec 2011 requires all offerors to represent that any “Covered DoD officials” who are expected to perform on the resultant contract are in compliance with any of their post-government employment restrictions – Companies need to screen employees for Covered DoD Officials before including them in a proposal or assigning them work – Companies should have all employees who are Covered DoD Officials acknowledge their ongoing duty to disclose if any task assignments might violate their post-government employment restrictions • Acquisition Functions, FAR 52.203-16 – performing functions “closely associated with inherently governmental function”, e.g. source selection services – Must ensure no PCOI, e.g., employment, honorariums, research funding, investments, real estate, patents/IP rights, business ownership, retirement plans – must not use non-public information for personal or company gain – Company need to screen employees for PCOI before assigning to any acquisition function contracts OCI Environment • • • • Some Agencies Moving to Avoidance vs. Mitigation RFPs calling for OCI Plans regardless of level of OCI risk Government Agency OCI checklists more prevalent Weapons Systems Acquisition Reform Act 2009, signed May 22, 2009 by Pres. Obama, new DFAR resulted: – Final DFAR on OCI for Major Defense Acquisition Programs (MDAPs) – DFAR requires 3 criteria to allow System Engineering & Technical Assistance (SETA) work yet overcome the mandatory preclusion (1) Head of Contracting Agency approval (2) Domain expertise (3) Agreed upon mitigation resolution • Proposed changes to FAR 9.5 issued, comments submitted July 2011, final rule still pending “Proposed” Changes to FAR 9.5 • Analysis Of Risk. (i) harm to the integrity of the competitive acquisition system and (ii) harm to the government’s business interests. The proposed rule sets forth different treatment based on that distinction. This new definition of the risk is used to introduce the new “acceptance of risk of harm” proposal. • Acceptance Of Risk Of Harm To Government Business Interests. the FAR Councils' proposal provides that the risk of harm to the government's business interests may sometimes be assessed as an acceptable performance risk and further action may not be necessary to address the conflict. • Recognition Of Corporate Structural Barriers And Internal Controls. the proposed FAR provision recognizes that corporate structural barriers – such as independent boards of directors – may, in some circumstances, constitute sufficient mitigation. • Removal Of Unequal Access To Nonpublic Information From The OCI Framework. the proposed FAR provision removes the concept of unequal access to nonpublic information from the definition of OCIs, and treats it separately under FAR Part 4. OCI Trends Impacts on Industry Divestitures of Business Units and Contracts M&A scrutiny Continued bid protests - will the number rise or be reduced? Interpretation questions Determination of Potential OCI • OCI is not limited to any particular type of contract; however , it is more likely to be found in contracts involving: – Management support services; – Consultant or other professional services; – Contractor performance of or assistance in technical evaluations; or – Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production – often referred to as “SETA” contracts • Review of the SOW/SOO is the key to determining any potential OCI risk • SETA vs. System Engineering & Integration work – those companies that manufacture or provide certain services may be the best technical providers of integration services so mitigation should be the goal so the government obtains best value There is no finite list or one size fits all, each SOW needs individual review!! Red Flag SOW Tasks Testing Requirements Definition Website support Trade studies Long range planning Systems engineering Advise/advice/advisory support Policy Guidance Research Evaluate Budgetary planning Future …. OCI Analysis • Government and Industry need to collaborate as much as possible – Review of possible OCI issues and/or OCI approaches/mitigation is an exchange of information , not “discussions”, thus the government can engage in this exchange at any time during the procurement phase, (see e.g. Overlook decision, Nov 2006) – Pre-RFP review of the SOW and analysis of potential OCI is essential • Recommend RFIs or market survey specifically on OCI • Are there any measures the government can implement to avoid, mitigate or neutralize OCI? – Establish a bidder’s library? – Require avoidance (not eligible to bid) by all companies who assist in the perRFP and/or source selection • List those companies in the RFP so bidders know to not team with any entity of those companies – If impaired objectivity possible but not probable or not a significant part of the work scope, government can accept some risk and/or grant a waiver of residual OCI risk (see The Analysis Group decision, Apr 2011) What might NOT be an OCI? • White Papers: these are company marketing documents and are purposefully biased towards that company’s products. These are an important tool in providing valuable information to governmental agencies. Use caution however and state the paper is for marketing purpose only and is not intended to provide requirements or specifications for government competed RFPs. Also you may want to distribute as a .pdf or with other password/read-only protections • Development work: per FAR 9.505-2(a)(3), “In development work, it is normal to select firms that have done the most advanced work in the field. These firms can be expected to design and develop around their own prior knowledge. Development contractors can frequently start production earlier and more knowledgeably than firms that did not participate in the development, and this can affect the time and quality of production, both of which are important to the Government. In many instances the Government may have financed the development. Thus, while the development contractor has a competitive advantage, it is an unavoidable one that is not considered unfair; hence no prohibition should be imposed.” • Incumbency: GAO has long held that “an offeror may possess unique information, advantages, and capabilities due to its prior experience under a government contract--either as an incumbent contractor or otherwise; further, the government is not necessarily required to equalize competition to compensate for such an advantage”. This is considered a fair advantage, however biased ground rules, or access to third party information which provides an unfair competitive advantage, may pose an OCI that must be addressed. • Teaming Arrangements: when bidders join multiple teams and/or have access to Third Party Proprietary Information, the companies need to protect each other’s information, not the government, and this is not necessarily an OCI OCI Analysis, cont’d • What is the nature of the SOW? • What are the potential conflicts? – Can they be mitigated? • Does the incumbency exception apply? • Does performing as a prime or sub impact the OCI analyses? • Who are the competitors? – Are they similarly situated? • Does 9.505-2(a)(3) apply? Recognizes development work by nature may provide a competitive advantage but it is unavoidable and therefore no prohibitions apply • Is it an IDIQ ? – Multiple award ? – What is the probability of OCI at the task order level? – Allow for not bidding on task orders that pose OCI which cannot be mitigated? OCI Analysis: You Make the Call -1) During performance on one contract, a contractor evaluates the technical strength of a number of products. A product under evaluation is manufactured by one of the contractor’s affiliates. The contractor knows a great deal about that product – the good and the bad – which it plans to fully and accurately disclose to the agency. – Unequal access to information? – Impaired objectivity? – Biased ground rules? – None of the above? What if the contractor also will be drafting the SOW for a later procurement of one of the products? Does the type of OCI change? 2) A contractor holds a contract for IT support. The government will “re-compete” the contract next year and will add some additional scope to the contract. The contractor's own performance data and proprietary information are the best information on how to bid the contract. Only the current contractor possesses this information. – Unequal access to information? – Impaired objectivity? – Biased ground rules? – None of the above? OCI Analysis: You Make the Call -3) Through its performance on a subcontract, a company gains access to non-public source selection information for another contract. One of the company’s affiliates will be bidding on that contract, but that affiliate is a separate legal entity (a subsidiary of the parent company). – – – – Unequal access to information? Impaired objectivity? Biased ground rules? None of the above? 4) Only two companies submit proposals to perform an auditing services contract and both companies have subsidiaries that provide the same type of services to the government that will be audited. – – – – Unequal access to information? Impaired objectivity? Biased ground rules? None of the above? OCI Mitigation • What is OCI Mitigation? – OCI mitigation is the process by which the government or contractor avoids, neutralizes or mitigates an actual or perceived potential OCI to prevent a situation that would otherwise appear to bias the contractor’s judgment or would create an unfair competitive environment • OCI Mitigation Plans usually provide an information control environment that protects sensitive Government and third party information in accomplishing contract requirements, and limits information flow into and out of the Program – Restriction of data flow and personnel is commonly referred to as a “firewall” which is an accepted measure for unequal access type OCI issues; however, a firewall alone CANNOT protect against bias and/or impaired objectivity – • Remember, Perception of an OCI is equally as serious as an actual OCI issue and must be addressed through OCI mitigation procedures also "Where, as here, the facts demonstrate that an OCI exists, the harm from that conflict, unless it is avoided or adequately mitigated, is presumed to occur.“ (VRC, Inc. GAO decision 11/2/2007) OCI Mitigation Plans • Essential elements of an OCI Plan needed to meet FAR requirements and to mitigate potential OCI issues: – Description of the OCI Situation/Analysis, often left out of templates and cookie-cutter approach, yet is an integral element of any mitigation, “why is this Plan necessary”? – Organizational Isolation and Controlled Access to program facilities – “Firewalls” (Key Principle); includes ADPE isolation as required – Special document handling and storage (information protection) – Employee awareness and training on both OCI generally and on the specifics related to the OCI Plan – Limitation on personnel transfers, if applicable • Use this judiciously , restrictions affect individual employee’s ability to work or transfer and can have significant impact on their personal lives – Flow down of all OCI requirements to subcontractors – Audits Key: What organization, policy, or procedure are you going to present to the Government to demonstrate your organization can mitigate any actual or perceived OCI concern regarding the proposal environment or during contract performance? Recognize OCI plans incur time and cost. Mitigation of Bias Ground Rules/Impaired Objectivity • Mitigating Impaired Objectivity, e.g. Tasking to Evaluate your own Products or Services – Use of a conflict-free Subcontractor – Deliverables can be sent directly to government, i.e. firewalled from prime • Mitigation of Bias Ground Rules (recommended but may not be enough to mitigate, see e.g. Nortel) – Multi-contractor Teams – Use of Independent 3rd Party (FFRDCs, e.g. MITRE) – Level of autonomous government decision-making – Use of a conflict-free Subcontractor • Reserve the Right of Recusal from Bidding on Tasking/Task Orders – This right must be explicit – Must be feasible, i.e. not affect technical mission, award fee, or CPAR Bias Type Issues Are the Most Difficult to Overcome but proposed new FAR 9.5 recognizes use of a conflict- free subcontractor may mitigate all types of OCI Post-Award OCI Management • Review contract fully to ensure no other OCI obligations, (e.g. 120 day reporting requirement) • Implementation of OCI measures: – DO NOT SIMPLY FILE AWAY PLAN , IMPLEMENT IT! – Set Up of OCI Training: slides, format, logistics (slides should be specific to the Plan and explain why there is a Plan on THIS program) – Subcontracts: make sure flow-down in subcontract agreement; make sure subcontract employees get OCI training – Brief program management/PMO/Sr. Management – Establish Tasking or TO screening process, if applicable – Set Employee restrictions, if applicable • Audits: set up process to perform audits BE DILIGENT ABOUT RECOGNIZING AND AVOIDING OCI SITUATIONS: those who interact day-to-day with the government are in the most vulnerable position to create OCI issues Auditing Compliance • OCI Plan Audit Provisions – who did you state must audit? o Program self-audit? • depending on the level of OCI risk or type of program, e.g. an IDIQ with no task orders with any OCI risk determined, this may be an appropriate approach, however, the auditor should still be a position not directly responsible for program performance o Independent audit? • What resources do you have to perform audits independently? Do you have established OCI audit practices? o Subcontractor Audits? • How are you going to audit subcontractors? On-site? Require annual certification? – Internal Auditors: o usually provide general oversight to your company’s OCI policies & practices, not necessarily your Plan’s auditor, but can be a resource – Independent Auditor: could be your internal audit department, or a functional department that is not responsible for, or does not support, the program being audited – Government Audits: OCI plans are not usually audited by government but many agencies are now requiring an annual certification of compliance. • Interval: generally OCI audits should be performed on a random basis, but usually no less than annually Subcontractor/Teammate OCI Management • Working with teammates should require disclosure of any OCI issues (particularly any prior RFP support to the Government) – If OCI certification required, it must be on behalf of their entire corporation • Teammate must disclose any related OCI Plans • If teammate discloses any potential OCI, subcontractor must also propose a mitigation plan – Teammates must agree to follow the prime’s OCI plan being submitted, if applicable • Depending on number of subcontractors/teammates this can be time intensive • Subcontractors must be subject to audit of their compliance with any OCI Plan Heightened Due Diligence Requirements; Prime Responsible For Subcontractor Yet It’s Their Proprietary Information Common OCI Myths ??? “If the RFP does not have an OCI clause or requirement, there is no OCI risk” False, Bidders must be aware, the OCI risk is to your next proposal, of which the government may not have noted or known of any concerns……also, there may be a different CO/PCO for the related procurement ??? “Opportunities below a certain $$ amount do not need to be reviewed” False, all SOWs that indicate a potential OCI should be reviewed ??? “Re-competes do not need to be reviewed” False, all RFPs that contain an OCI Clause and all SOWs that indicate a potential OCI should be reviewed- there could be new work or other circumstances may have arisen that change the risk scenario. Also, Government OCI policies may have changed ??? “So long as we have our folks sign NDAs we’re covered” False, while NDAs provide some protection, and in some cases may be enough, each potential OCI must be reviewed to determine the best mitigation strategy ??? “An OCI firewall will resolve all possible OCI issues” False, while firewalls may resolve an unequal access to information OCI issue, firewalls alone cannot overcome bias or impaired objectivity Summary Review of the SOW/SOO is the key to determining any potential OCI risk Vet/Screen employees BEFORE assigning them to proposal support and/or contract performance Full and timely disclosures to the PCO protects both the government and the contractor Although the OCI environment continues to evolve it remains that robust OCI processes, compliance, awareness and disclosures are essential to OCI risk management Collaboration helps both industry and government, Disclose – Discuss - Resolve Questions? Questions? RECENT GAO DECISIONS AT&T Government Solutions, Inc B-407720; B-407720.2 January 30, 2013. DIGEST: Protest challenging the agency’s evaluation of potential unequal access to information and impaired objectivity organizational conflicts of interests (OCIs) is dismissed as academic where, three days prior to our statutory 100-day deadline, the agency waived any OCI concerns under the authority granted by section 9.503 of the Federal Acquisition Regulation. [Dan Gordon made this observation on the GW Contracts Law site: “An interesting GAO decision involving an agency's (eleventh-hour) waiver of an organizational conflict of interest. Note that the OCI involved unequal access to nonpublic information, which the proposed FAR rule would not have treated as an OCI, so that it could presumably not be waived, if the proposed rule were final.”] McKissack-URS Partners, JV B-406489.7 January 9, 2013. DIGEST: 1. Protest that awardee’s use of a former government employee in connection with an architect-engineer Brooks Act procurement provided the firm with an unfair competitive advantage due to the employee’s access to the protesters’ proprietary information is denied where the contracting officer reasonably concluded that the information at issue was not competitively useful in the current procurement. 2. Protest that evaluation board members were biased in favor of awardee based on the awardee’s use of a consultant who had previously supervised several of the evaluation board members at a time when he worked for the government is denied where the contracting officer’s investigation revealed no improper contacts and the protesters failed to provide any evidence of bias beyond mere suspicion and innuendo. RECENT GAO DECISIONS Diversified Collection Services, Inc. B-406958.3; B-406958.4 ,January 8, 2013. DIGEST: 1. Protest that firm should have been disqualified from competition due to a significant impaired objectivity organizational conflict of interest is denied, where the agency reasonably concluded that the vendor, if awarded the task order, would not be in a position to evaluate the services it provides to commercial customers. Science Applications International Corporation B-406921; B-406921.2 October 1, 2012. DIGEST:3. Agency’s investigation of the awardee’s alleged unequal access to information organizational conflict of interest related to the awardee’s hiring of a government employee was reasonable, where the agency determined that the employee did not have access to non-public, source selection information, and where the record shows the employee did not assist the awardee in writing its proposal. Science Applications International Corporation B-406899 September 26, 2012. DIGEST: 1. Protest of an agency’s organizational conflict of interest (OCI) determination is denied where agency reasonably investigated protester’s and awardee’s possible OCI and the protester does not show that the agency’s judgment is unreasonable. RECENT GAO DECISIONS Re-Engineered Business Solutions, Inc. B-405662.4; B-405662.5 September 19, 2012. DIGEST: 1. Protester’s allegations of bias with regard to a former agency employee provide no basis to sustain the protest where the allegedly biased employee left the agency before the final evaluation and source selection decision took place. Oklahoma State University B-406865 September 12, 2012. DIGEST: 3. Protest of alleged organizational conflicts of interest is denied where the protester has not identified any hard facts indicating the existence, or potential existence, of a conflict. Guident Technologies, Inc. B-405112.3 , June 4, 2012 DIGEST: 1. Protest that awardee had an unmitigated impaired objectivity organizational conflict of interest was timely filed after the agency selected the awardee for award, notwithstanding the fact that the protester knew, prior to award, that the awardee was competing under the solicitation, and the basis for the alleged conflict McKissack-URS Partners, JV B-406489.2; B-406489.3; B-406489.4 May 22, 2012. DIGEST: 2. Where the agency has not made a final determination concerning an alleged conflict of interest, a protest based on such an allegation is premature. RECENT GAO DECISIONS NikSoft Systems Corp. B-406179 February 29, 2012. DIGEST: 1. Agency request that protest be dismissed on the basis that the protester is not an interested party due to an organizational conflict of interest (OCI) is denied, where the agency has not shown its OCI determination is based on hard facts showing the protester had unequal access to competitively-useful information. McTech Corporation, B-406100; B-406100.2 February 8, 2012 DIGEST : 1. Agency reasonably concluded that the protester had an organizational conflict of interest and properly eliminated it from the competition under a solicitation for the award of a construction contract, where the agency found that the close relationship between the protester and the designer of the construction project constituted an apparent conflict of interest that created the appearance of an unfair competitive advantage. 2. Protester’s contention that information not considered by the contracting officer in the initial determination that the protester had an organizational conflict of interest (OCI) cannot be considered by GAO in resolving a protest challenging this determination is denied because an agency may provide further information and analysis regarding the existence of an OCI at any time during the course of a protest, and GAO will consider such information in determining whether the contracting officer’s OCI determination is reasonable. RECENT GAO DECISIONS Y&K Maintenance, Inc. B-405310.6 February 2, 2012. DIGEST: 2. Protest based on an alleged violation of the Procurement Integrity Act is denied, where, consistent with Federal Acquisition Regulation requirements, the agency investigated the alleged disclosure of information by an agency employee to another offeror and found that the documents provided were publicly available and not procurement sensitive and where the protester has not shown that it was competitively prejudiced. TriCenturion, Inc.; SafeGuard Services, LLC B-406032; B-406032.2; B-406032.3; B406032.4 January 25, 2012. DIGEST: 4. Protest that the award was tainted by organizational conflicts of interest is denied where the record shows that the agency reasonably concluded that the potential areas of concern were addressed by a mitigation plan that included details and milestones. AdvanceMed Corporation; TrustSolutions, LLC B-404910.4; B-404910.5; B-404910.6; B404910.9; B-404910.10 January 17, 2012. DIGEST: 1. Protest that the award was tainted by organizational conflicts of interest is denied where the record shows that the agency reasonably concluded that the potential areas of concern either did not constitute significant conflicts that warranted disqualification of the awardee, or were significant conflicts that were adequately mitigated.