The Hot Topic
Organizational Conflicts of Interest (OCI) has been a hot legal topic in government contracts for a number of years. The basic rules are in FAR Subpart 9.5. OCI rules are intended to prevent unfair competitive advantage. Unmitigated OCI can make a contractor ineligible for contract award.
There are three types of OCI: (1) Biased ground rules–preparing specifications or the scope of work for a procurement and bidding on the same work; (2) impaired objectivity–evaluating offers for products or services of itself or competitors; or (3) unequal access to information–obtaining access to proprietary information of a competitor due to work under another contract.
The New Twist
In ARES Technical Services Corporation, B-415081.2 (May 8, 2018), the GAO developed a new twist for proposals with OCI mitigation plans. In ARES, the proposed OCI mitigation plan was solid and included best-practice mitigation elements, such as subcontracting work subject to the OCI, and installing electronic and personnel firewalls. Despite the best-practice mitigation plan, ARES protested claiming several issues from an impaired objectivity type OCI.
ARES did not directly attack the OCI mitigation plan; instead ARES claimed the proposal evaluation was fatally flawed because the agency did not consider how the mitigation plan impacted the proposed technical and program management approach.
The GAO held: “Agencies are required to consider the effect that a firm’s OCI mitigation measures have on its technical approach, and whether or not such OCI mitigation measures either directly contradict the firm’s proposed technical approach or otherwise call into question the agency’s…conclusions concerning the merit of a firm’s proposed approach.” Since the agency did not evaluate the mitigation plan’s impact on the proposed technical and management approach, the protest was sustained.
Lessons Learned for Proposals
Proposing a good OCI mitigation plan is not enough. Proposals must describe how the OCI mitigation approach is seamlessly incorporated into the proposed technical and program management approach, and how OCI mitigation plan impacts are handled.
If you have questions regarding OCI or other federal government contract issues, contact the professionals at Williamson Law Group at (301) 788-8198 for confidential and candid assistance and counsel, or e-mail Scott Williamson, managing attorney, at firstname.lastname@example.org.
This Contract Compliance Update is intended to keep readers current on developments in federal government contract matters and is not intended to be legal advice. If you have any questions, please contact Williamson Law Group for legal advice regarding your particular case.