1. Critical New Developments in Organizational Conflicts of Interest
Dick Bean
Associate General Counsel
General Dynamics C4 Systems

2. Point to Ponder Arnold Palmer once said: “Golf is amazingly simple,
and endlessly complicated.”
The same can be said about
Organizational Conflicts of Interest!

3. Today’s Session
Open discussion on all charts – jump right in with a question or comment!
Time at the end as well for any other questions not prompted by the charts
Please provide feedback on the content and format of this course – thanks in advance!

4. Summary of Issues The Basics – What is an OCI?
FAR Case (Now FAR Case )
DFARS Case 2009-D015
GAO Bid Protests
U.S. Court of Federal Claims Bid Protests
Agency Approaches to OCI
Trends/Conclusions/Questions?

5. The Basics – What is an OCI?
FAR … unable or potentially unable to render impartial assistance or advice, or … objectivity is or might be impaired, or … has an unfair competitive advantage
Three Types of OCI:
Impaired Objectivity (evaluate own product)
Biased Groundrules (write standards/specs)
Access to Nonpublic Information (contractor staff working in agency with no isolation methods)

6. FAR Case 2007-018 Issued March 26, 2008 (73 Fed. Reg. 15962)
Highlights include: greater emphasis on contractor disclosure of OCI, broader definition of “contractor,” OCI rules specifically applying to task/delivery orders, contracts including formal OCI resolution process, greater emphasis on avoidance, and limitations on future contracting rather than mitigation and firewalls

7. FAR Case
Issued 10/6/2010 as a restatement of FAR Case
Report originally due 10/27/2010
Third extension granted until 12/15/2010
02/07/2011 Draft proposed FAR to CAAC Legal
02/24/2011 CAAC Chair sent draft proposed FAR rule to OIRA - OIRA reviewing (as of 3/4/11)

8. DFARS Case 2009-D015 Issued April 22, 2010 (75 Fed. Reg. 20954)
Proposed major changes to DoD’s approach to OCI
Proposed many new DFARS clauses for use in solicitations and contracts
Generated a significant number of comments by industry groups (21 respondents to the proposed rule)
Final Rule issued December 29, Fed. Reg

9. Proposed DFARS
DoD proposed new OCI provisions in DFARS Part 203 (rather than Part 209)
Significance - Part 203 relates to various activities that violate major laws governing business practices and ethics such as the Procurement Integrity Act, Anti-Kickback Act, Covenant against Contingent Fees
Might imply OCI relates to wrongdoing

10. Proposed DFARS
Federal contract OCI issue should not carry the same stigma as other Part 203 matters which are criminal in nature
Some OCIs are created purely by corporate mergers/purchases/consolidation so no criminal action is involved and it is not misconduct or an “improper business practice” to have an OCI arise
Result: DFARS revisions on OCI will remain in Part 209

11. Proposed DFARS
Proposed DFARS displaced traditional hierarchy of acquisition regulations established when the FAR was promulgated in 1984: “DoD proposes to use DFARS subpart in lieu of the present FAR Part 9.5” (75 Fed. Reg. pages )
Normally, the FAR is primary guidance and FAR supplements include only agency-specific direction
Result: DoD only implemented changes that relate to pre-MDAP and MDAP programs

12. Proposed DFARS
“However, when the FAR is revised, pursuant to the Section 841(b)[Pub.L ] to incorporate broader OCI changes, DoD will follow the FAR and revise the DFARS to address only those aspects of OCIs that relate specifically to major defense acquisitions” (75 Fed. Reg. pages )
Why should the DFARS be revised twice? Why not wait for action on FAR Case ?
Result: DoD only implemented changes affecting MDAP programs as WSARA had directed.

13. Proposed DFARS
Proposed DFARS (c) and (c) states that the preferred method of resolution is OCI mitigation
Will this have an unintended consequence of encouraging challenges?
Result: DoD removed the preference for mitigation, stating that how to resolve an OCI will “remain a matter within the common sense, good judgment and sound discretion” of contracting officers

14. Proposed DFARS
DoD policy to promote competition and, to the extent possible, preserve DoD access to the expertise and experience of highly-qualified contractors
DoD: OCI resolution strategies should not “unnecessarily restrict the pool of potential offerors and do not impose per se restrictions on the use of particular resolution methods”

15. Proposed DFARS
Proposed requires identification of OCIs, but it doesn’t go far enough
It should also require disclosure of the identities of any companies that participated in requirements definition – will alert offerors which companies would be ineligible to be subcontractors
Result: No implementation; defer to FAR Case

16. Proposed DFARS
Proposed allows a PCO to exclude an offeror if its participation creates an OCI on a future contract (a private business decision)
It should be revised to state solicitations should include language indicating if a contractor wins a support contract, it may be precluded from competing for the subsequent implementation contract
Result: Implemented only for MDAP programs, though an OCI mitigation plan may be submitted

17. Proposed DFARS
Proposed states OCI waivers shall not be used in competitive acquisitions unless stated in the solicitation
Unrealistic to assume the PCO will know all the participants that early in the process
Why not leave it to the PCO’s common sense, good judgment based upon facts presented and legal advice rendered?
Result: Not implemented – “common sense, good judgment” standard prevailed!

18. Proposed DFARS
Proposed requires inclusion of a solicitation provision ( XX) when contractor performance of the work may give rise to OCI
The proposed clause does not provide adequate guidance on its use and may lead to overuse, but with revision it could include specific reference to use in support services and other advisory services requirements
Result: New DFARS and

19. Final Rule DFARS
DFARS – HCA approval needed for approval of OCI mitigation plan on MDAP SETA support; otherwise no follow-on effort on MDAP by company or affiliate
DFARS – Affects major subcontractors as well their affiliates unless an OCI mitigation plan is approved and incorporated into the contract as a material requirement

20. Proposed DFARS
Proposed XX(e)(3) requires the PCO to act on an OCI mitigation plan if it is unacceptable
Needs additional clarification/revision
Result: Indirectly addressed by the new requirement to incorporate an OCI mitigation plan in the contract; PCO would have to act upon an OCI mitigation plan to incorporate it

21. Proposed DFARS Proposed 252.203-90YZ, Limitation on Future Contracting
Imposed when the performance “could” create an unfair competitive advantage
Requirements of future procurement could change, and thus potentially cause unnecessary exclusion
Result: Not implemented

22. Proposed DFARS
Proposed ZZ, Disclosure of Organizational Conflict of Interest after Contract Award
Highlights default termination as a remedy for OCI disclosure during contract performance
Result: Not implemented - in deference to the pending FAR Case taking action

23. Proposed DFARS
Proposed DFARS rules may have gone too far in attempting to apply language from Aetna Government Health Plans, Inc., B , et al., 95-2 CPD 129 that there is no need to distinguish between a firm and its affiliates and that the “appearance of impropriety” is the standard to be applied.
Companies have an interest in their reputation for quality work and ethical conduct in order to assure their long-term viability in the Federal marketplace

24. FAR Case
Will we see rejected DFARS changes resurface in this FAR case?
January 7, 2011: DAR staff notified FAR staff that Defense Acquisition Regulatory Council agreed with draft proposed rule, as edited by DAR Council legal staff
CAAC referred the case to OIRA February 24

25. GAO Decisions MCR Federal, LLC, B-401954.2, August 17, 2010
CIA was seeking cost evaluation services.
Initial acquisition was protested and CIA took corrective action, specifically on OCI allegation
CIA granted OCI waivers for both companies in the competition due to limited “cleared” contractors
GAO upheld the FAR OCI waiver – CIA had met all of the FAR requirements

26. GAO Decisions MCR Federal continued-
Teaching point from the decision would be that an agency should always consider whether an OCI waiver would be in the best interests of the agency - to enhance competition or based upon other compelling reasons
Companies should consider requesting OCI waiver in their OCI mitigation plan templates as a last resort if other techniques are deemed ineffective

27. GAO Decisions
CIGNA Government Services, LLC, B , September 9, 2010
Corrective action after initial protest alleging OCI
PCO examined OCI allegations and developed a 20-page report containing contractors’ answers to PCO questions (resolving OCI concerns)
PCO took extra step of pursuing OCI waiver post-FPR to neutralize any latent issues
GAO denied the protest; OCI exchange is not discussions

28. GAO Decisions
Ellwood National Forge Company, B , October 22, 2010
former employee of protester was a consultant to its competitor; Protester alleged OCI
PCO had obtained affidavits from both parties and obtained independent technical analysis showing Protester’s steel manufacturing processes were not used by its competitor
GAO found no OCI violation

29. GAO Decisions Additional points from the Ellwood protest:
GAO will to abstain from involvement in enforcement of private nondisclosure disputes
If an individual obtains non-public information and an allegation of misuse later arises, this does not give rise to an OCI allegation before the GAO
GAO will uphold agency discretion in making OCI determinations that are supported by reasonable investigative inquiry by the procuring agency

30. GAO Decisions Serco, Inc., B-404033.4, December 27, 2010
Good example of proactive OCI measures by the Government
Army put offerors on notice to disclose potential OCI issues and to submit an OCI mitigation plan
Offerors could not provide advice and then propose on the fulfillment of such new requirements; and could not use any nonpublic or proprietary information obtained during performance of the instant contract

31. GAO Decisions CACI, Inc. – Federal, B-403064.2, January 28, 2011
A good example of thorough OCI investigation measures
Corrective action after initial protest (notice a theme here?)
Contracting Officer took several steps to analyze the OCI issues raised

32. GAO Decisions CACI continued Contracting Officer:
reviewed prior agency analysis of OCI
Contacted both companies and requested statements from each employee who had knowledge of meetings, asked whether any information addressed at meetings was proprietary and why, asked for any written information provided at meetings (in part, to show markings), and whether the employees were aware of any relevant statements of any Government employee regarding one company’s intention to not propose

33. COFC Decisions
Turner Construction v. United States, July 8, 2010 (36-page decision)
Turner was awardee on an Army “design-build” construction project
The award was initially protested to the GAO by the two unsuccessful offerors, McCarthy/Hunt JV and Harbert/Gorrie JV
The GAO sustained the protest due to OCI concerns relating to Turner’s subcontractor

34. COFC Decisions
Turner’s subcontractor had merged with another firm that was supporting the agency’s source selection evaluation
PCO met with the above companies during the source selection and concluded no OCI due to the isolation of information about the merger
GAO concluded an OCI was present and recommended termination of the Turner contract

35. COFC Decisions
COFC found that the Army was arbitrary and capricious in implementing the GAO decision because the GAO decision was “irrational”
GAO conducted an improper “de novo” review rather than just review the agency’s decision to see if it had a rational basis
COFC reinstated the Turner contract
The Army had considered use of an OCI waiver, but its decision authority rejected it

36. COFC Decisions
Turner is now on appeal to the U.S. Court of Appeals for the Federal Circuit
Docket No
Watch for further developments!

37. Other Important Court Decisions
United States v. Science Applications International Corporation (SAIC)
District Court: False Claims Act violation, treble damages $5.8M
U.S. Court of Appeals for the District of Columbia: Reversed in part and remanded for new trial

38. Other Important Court Decisions (SAIC Continued)
SAIC will be able to present evidence on whether the Government received the benefit of its bargain despite the OCI
Liability under the False Claims Act could attach if OCI compliance was a material condition of the Government’s decision to pay
Many other issues not related to the OCI aspects of the case

39. Agencies’ OCI Approaches: A Sampling
NASA:
Missile Defense Agency: Statement of Policy dated 24 November 2008
NRO Corporate OCI Agreement Program, 26 June 2009 [Notice ]
Air Force Electronic Systems Center:

40. Trends/Conclusions/Questions
OCI impact has caused divestiture in 2010
Northrop Grumman, Boeing, Lockheed Martin, CSC all reported restructuring due to OCI concerns
Continued scrutiny at the GAO/COFC
COFC Turner Construction decision may be cause for the GAO to reassess its examination of OCI
“Target-rich environment” for lawyers, lecturers, and pundits of all types!