When the federal government solicits proposals, there are conflict issues that may arise. However, federal government contractors often misunderstand both the FAR conflict of interest rules for challenging the conflict issue and how to draft a proper organization conflict of interest mitigation plan, or OCI mitigation plan.
As a result, GAO or some other bid protest court will dismiss the protest as untimely or for some other reason.
GAO protest decisions show that there is an increase in bid protests regarding FAR organizational conflict of interests. The government only has a few choices when the OCI challenge arises under FAR 9.5 They are:
- Avoid or waive the OCI
- Mitigate the OCI
- Neutralize the problem
The general rules in FAR 9.505-1 through FAR 9.505-4 prescribe limitations on contracting as the means of avoiding, neutralizing, or mitigating organizational conflicts of interest that might otherwise exist in the stated situations.
Unless the contracting officer finds that there is a FAR conflict of interest that cannot be avoided or mitigated, then the agency will make the award to the responsible offeror. If the CO finds that there is an organizational conflict interest, he or she is required to provide you with notice and then give your company an opportunity to respond.
What is a FAR Organizational Conflict of Interest (OCI)
An Organizational Conflict of Interest (OCI) can occur when your company, participating in some form of a federal government contract can somehow compromise your ability to a future contract or to somehow develop an unfair advantage when you are bidding on a new federal contract.
Federal Acquisition Regulation (FAR 9.5) describes an OCI as a situation where “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.” See FAR 2.101.
Organizational Conflicts of Interest situations tend to involve the following categories:
Unequal Access to Information
This type of conflict happens when a government contractor has access to non-public and sensitive information that may create a competitive advantage in a competition for a different federal government contract. Sensitive information may include proprietary information and government source selection information. To constitute an OCI, you only have to have access to sensitive information. The usefulness of the information is also important and completely useful when considering the creation of an unfair advantage in an upcoming procurement. Unequal access to information becomes a contentious dispute in litigation. If you are an incumbent contractor, this alone will not be sufficient to prove and organizational conflict of interest.
As a government contractor, you should know that knowing about another contractor’s actions can potential create and OCI. For help with developing or drafting your OCI mitigation plan, let one of our government contract lawyers help.
An organizational conflict of interest can occur when the substance or type of a government contractor’s work in one contract can create an opportunity to benefit or have an unfair advantage in a future contract. Impaired objectivity in an OCI case usually occurs when the contractor is using its subjective judgment or giving advice, and its other business interests could be affected by the judgment or advice, its objectivity may be impaired. These are all fact-specific and should be approached with caution.
Biased Ground Rules
Biased ground Rules OCI cases occur you’re performing a government contract and you have somehow helped lay the foundation or “ground rules” for an upcoming government procurement. The federal government uses third party contractors to help write statements of work or develop the performance work statements. This would create and organizational conflict of interest and could require an OCI Mitigation Plan
What are the Contracting Officer’s Responsibilities When There is an OCI? FAR 9.504
FAR 9.504 requires that federal contracting officers analyze planned acquisitions in order to:
- Identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and
- Avoid, neutralize, or mitigate significant potential conflicts before the contract award.
When there is an OCI government contracting problem or even the possibility of one, contracting officers should obtain the advice of legal counsel and the assistance of appropriate technical specialists in evaluating potential conflicts and in developing any necessary solicitation provisions and contract clauses See FAR 9.506
Before the government issues the solicitation for a federal contract that may involve a significant potential conflict, the contracting officer shall recommend to the head of the contracting activity a course of action for resolving the conflict. See FAR 9.506
In fulfilling their responsibilities for identifying and resolving potential conflicts, contracting officers should avoid creating unnecessary delays, burdensome information requirements, and excessive documentation. The contracting officer’s judgment need be formally documented only when a substantive issue concerning potential organizational conflict of interest exists.
This can be a problem is there is s high-stake government contract award and the agency cannot produce any such documentation.
Can the CO Issue the Contract Award Even if There is an Organizational Conflict of Interest?
FAR 9.503 is clear that the CO shall award a federal government contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated.
- If would seem that the burden would be on the government to show that either an OCI did not exist or that it could not be avoided or mitigated.
- If you are filing a bid protest, it would seem viable to look at this level of argument. See also Reps and Certs.
Important Considerations If You Plan on Drafting an OCI Mitigation Plan
Unequal Access to Information
When creating this type of OCI plan you want to consider showing that there is a firewall or a combination of procedures and security measures that block the flow of information between a federal government contractor’s personnel who have access to non-public competitive information and other contractor employees who happen to develop the bid proposal. You want to show that the information cannot cross the firewall and cannot be used in a federal competitive procurement. Another approach to developing your OCI mitigation plan if you cannot accomplish the firewall is to share the information with all bidders.
When you draft this level of OCI Mitigation, the focus is to de-scope the existing contract and further look at excluding the performance of certain work by a contractor.
If you can identify the alleged conflicted contractor, maybe you can remove it from the contract. By developing your OCI government contracting plan, you also want to focus on showing the government has more oversight and can reasonably manage the issues of concern.
Biased Ground Rules
Dealing with the type of organizational conflict of interest is probably one of the most difficult to develop an OCI mitigation plan for.
- The common argument is this type of procurement is that the focused contractor has already influenced the statement of work, evaluation criteria, or contract specifications and the alleged harm is so pervasive and implanted that there is arguably no way to mitigation the conflict.
FAR 9.5 OCI Plan Waiver
If the contracting agency decides that it is the best interest of the government to make the award despite the OCI then the agency must apply for an OCI plan waiver and include the waiver request decision in the contracting file.
The real problem occurs when the agency reviews an OCIPlan. When contractors challenge the issue in a bid protest under FAR 9.5, the court will carefully scrutinize how the agency reviews the contractor’s organizational conflict of interest mitigation plan.
Acting in a timely manner is important. When government contractors are aware of an organizational conflict of interest before submission of bids, they must immediately notify the agency and then provide the agency with time to respond. If the agency takes no action, then the contractor should protest the issue before submitting its proposal. See Honeywell Tech. Solutions, Inc., B-400771, B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49. See information about hiring the right defense lawyer.
Tips for your FAR Conflict of Interest OCI Plan
When you develop an OCI Mitigation Plan, the document should be very specific about your actions to mitigate. If you provide different options, then the agency must both analyze and find the options acceptable. Generalized contractor’s organizational FAR conflict of interest mitigation plans will often be rejected.
- When your mitigation plan is rejected, unless waived, your company may be precluded from bidding.
For help assessing FAR 9.5 and drafting your organization conflict of interest OCI mitigation plan, litigation at the Court of Federal Claims or other legal help, call our government contracts lawyers at 1-866-601-5518. Speak with Jo Spence for more information.