Organizational Conflict of Interest Highlights Damien Walsh, Attorney Advisor, USJFCOM Tidewater Government Industry Council Panel Discussion 3 February Contractors’ Code of Ethics Required: Effective 24 December 2007, contract awards in excess of $5 million and requiring more than 120 days of performance require contractors to establish a “code of business ethics and conduct.” Code must flow down to subcontractors with work in excess of $5 million in value. This obligation does not apply to FAR Part 12 actions, overseas acquisitions or small businesses. (Final Rule published in the Federal Register on 23 November 2007.) 1

2.Sample Organizational Conflict of Interest clause from FISC (Jeff Brunner will distribute). 3.Mitigation Plans: GAO has upheld awardees' OCI mitigation plans: a)In Business Consulting Associates, LLC., GAO B , , GAO upheld the plan as realistic. a)VRC Inc. GAO B , , GAO upheld the proposed plan where it found that an employee had an ownership relationship to the bidder, and the employee was assigned to work in the project program office. a)MASAI Technologies Corporation, GAO-B , , GAO found no need to equalize competition unless there is evidence of preferential treatment. 2

4.Failed Mitigation Plans: a)In KAR Contracting LLC, GAO B , , GAO approved rejection of bides from a firm whose founder had been a government employee COTR for the projects, even where the action did not support criminal action, but only the appearance of impropriety. In this case the contracting officer carefully documented all the facts in support of his decision, including the advice of legal counsel. b)In one of the Boeing cases where one of its competitors contested the impartiality of a former senior Air Force procurement executive, Boeing demonstrated to the satisfaction of the GAO that the representative for the competitor had been actively involved in the competition on behalf of the government before the person retired from active duty – the GAO called for an ethics investigation of the individual with a report directly back to GAO. 3

5.Other Potential Conflicts of Interest: a)Contractor participation in other government programs, such as grants and Cooperative Research and Development Programs is likely to be considered a “fair advantage” where the opportunity is available to the market place. b)OSD (PA&E) requires that contractors likely to have access to budget or requirement generation information during the performance of their contracts with DOD must sign a special NDA which is submitted to OSD (PA&E) for approval, prior to award of the underlying contract. 4