Air Force Materiel Command

Air Force Materiel Command
AFMC Top Ten Training Organizational Conflict of Interest November 2008 (2 Continuous Learning Points)

OUTLINE OCI – IMPORTANCE TYPES OF OCI GOVERNING FAR PROVISIONS
CURRENT GAO VIEW CONTRACTING OFFICER RESPONSILITIES MITIGATION PLANS FAR EXAMPLES PROVISIONS AND CLAUSES MISCELLANEOUS TOPICS OCI REFERENCES OCI - SUMMARY

OCI IMPORTANCE

Why Is Avoiding OCI Important?
We need to maintain the trust of the American taxpayer Keep competition fair and objective Make people believe in the Government Procurement System An OCI violation will be a basis to overturn an award decision

Why the interest? Government is obtaining more services from contractors Defense Industry Consolidation Consolidation at prime level Acquiring traditional A&AS contractors Contracts calling for more exercise of judgment rather than merely supplying a good or service A&AS support at other USAF/DoD organizations that may impact program OCI rules in the FAR prevent the existence of contractor bias and unfair competitive advantage resulting from a contractor’s conflicting roles.

TYPES OF OCI

What is an Organizational Conflict of Interest?
The existence of a set of circumstances in which a contractor may : - Be unable to render impartial advice to the government Have impaired objectivity in performing work Obtain an unfair advantage Remember, an organizational conflict of interest may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition. Bottom line, policy makers are also concerned with potential conflicts of interest.

What is an Organizational Conflict of Interest?
3 Main Categories of OCI Unequal Access 2) Biased Ground Rules 3) Impaired Objectivity

Unequal Access This situation arises when a contractor has access to information not available to other contractors Example: Information on what the Government Estimate is could assist a company in winning a contract (FAR )

Biased Ground Rules Occurs when contractor may be involved in writing Statement of Work (SOW) or technical direction efforts and then later seeks to submit a proposal to fulfill that requirement (FAR & 2)

Impaired Objectivity Occurs when a support contractor performs duties involving assessing or evaluating itself or a partner company (FAR )

GOVERNING FAR PROVISIONS

Governing FAR Provisions
FAR OCI definition – Because of other activities or relationships … , a person is unable or potentially unable to render impartial assistance or advice, or the person’s objectivity … is or might be impaired, or a person has an unfair competitive advantage. Starting with the basics, the definition of OCI, it arises when a person is potentially unable to provide impartial services to the Government or where the person has impaired objectivity due to an existing contractual relationship. This could relate to a situation where there might be an unfair competitive advantage due to work on specifications or a situation of impaired objectivity because the person may have an interest in the outcome of a particular matter.

FAR Subpart 9.5, Organizational and Consultant Conflict of Interest Likely to occur in: (1) Management support services (2) Consultant or other professional services (3) Contractor performance of or assistance in technical evaluations; or (4) Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production (FAR 9.502)

FAR – Contracting officers shall examine each potential OCI individually on the basis of its particular facts and the nature of the proposed contract Access to non-public information? Biased ground rules? Will there be impaired objectivity? There is no one way to resolve an OCI problem if it arises. We will be talking about mitigation plans and firewalls, but resolution will be fact specific. What does the contracting officer believe will resolve the problem presented. The contracting officer must essentially be doing some detective work with the help of the program office staff involved in the current contractual relationships that are established. This is critical to the government’s understanding of the OCI issues created. As you will see later in the briefing, this can be a protest issue by an unsuccessful offeror. The contracting officer must ask these three questions as a starting point in the analysis of an OCI.

FAR 9.504(a)(2) – Contracting officers need to avoid, neutralize, or mitigate significant conflicts of interest before award FAR – Contracting officers are to exercise common sense, good judgment, and sound discretion J&E Associates, Inc., B , 98-1 CPD 77 It is important to realize that OCI issues cannot be deferred to post-award resolution. They may affect the viability of a particular company’s participation in an acquisition and render its proposal ineligible for award. This first GAO decision I have cited here, the J&E Associates decision involved a contracting officer who did not consider the OCI issues raised by having an educational institution propose on a requirement for a education and training center on a military installation. The GAO sustained the protest, requiring the agency to consider the impact of such an offer and amend its solicitation. In this case, four of the nine entities attending the pre-proposal conference were educational institutions, and the GAO asserted that there would be an issue of impaired objectivity if they were put in a position of recommending courses at their own college or university. GAO Web Link:

FAR 9.504(b) – Contracting officers should obtain the advice of legal counsel and technical experts in evaluating potential OCIs, as well as drafting necessary solicitation provisions and contract clauses. The contracting officer must work as part of a Government team to address OCI. It is not a matter of throwing it over the transom, so to speak, to the legal counsel to sort out. The legal review needs a factual foundation that can only be supplied by the contracting officer and the program office team. While a decision must be made on applicable clauses, we’ll talk about a GAO decision later which indicated that omission of OCI clauses does not preclude an assertion of an OCI prohibition.

FAR Provisions – General Rules
FAR Providing Systems Engineering and Technical Direction Contractor provides systems engineering and technical direction for a system but does not have overall contractual responsibility for development and integration. (Because these contractors occupy a “highly influential and responsible position” in providing advice to the Government, they should not be in a position to make decisions favoring their own products or capabilities) Prohibits contractor from Being awarded a contract to supply the system or any of its major components; or Being a subcontractor or consultant to a supplier of the system or any of its major components.

FAR Preparing Specifications or Work Statements Where contractor provided specifications for non-developmental items – may not compete to supply these items But normal to select firms most advanced in field for developmental work These firms can be expected to design and develop around their own prior knowledge Creates unavoidable competitive advantage that is not considered unfair; hence no prohibition

FAR Providing Evaluation Services A contractor is prohibited from evaluating its own offers for products or services, or those of a competitor, without proper safeguards to ensure objectivity to protect the Government's interests See SAF/AQ Contract Policy Memo 07-C-03, Use of Non-Government Personnel in Air Force Source Selections, dated 11 Jul 07

FAR Obtaining Access to Proprietary Information Contractors who obtain access to proprietary data must protect data from unauthorized use Usually requires company-to-company agreements to protect and properly use such data Solicitations must list the contractors who will be used and provide notice to the prospective offerors that such contractor personnel will be used and the manner in which they will be used. The offeror must be given an opportunity to object to the release of their proposal information to those planned non-government personnel. See SAF/AQ Contract Policy Memo 07-C-03, Use of Non-Government Personnel in Air Force Source Selections, dated 11 Jul 07

CURRENT GAO VIEW

Current GAO View Exchanges regarding an OCI issue or a mitigation plan are not considered to be discussions. (See Overlook Systems Technologies, Inc., B , B , November 28, 2006.) Caution: Don’t delay OCI resolution post-discussions because it may affect proposal evaluation and rating (e.g., change sub) GAO Report Web Link:

Current GAO View Greenleaf Construction Company, Inc., (B , B , January 17, 2006) GAO held that the agency failed to reasonably consider or evaluate the OCI implications of payments to the awardee from a related work effort (real estate closing agent) The most recent GAO decision in the OCI area was the Greenleaf Construction decision, January In this case, the unsuccessful offeror in a real estate property management asserted that the agency had not considered the OCI implications that the awardee had due to its receipt of payments from a real estate closing agent. The protester asserted that these conflicting roles created an OCI. The GAO agreed and sustained the protest. This is an interesting case to read because it involved several protests at the GAO as well as a protest filing at the U.S. Court of Federal Claims and a small business size challenge.

Current GAO View Alion Science & Technology Corp., (B , January 9, 2006; B , B , September 26, 2006) GAO initially held that the agency had not resolved an issue of impaired objectivity created by the awardee having existing contractual responsibilities. GAO stated agency had to document deliberation on OCI matters; agency later did so and ultimately prevailed In the Alion protest, the unsuccessful offeror challenged the effectiveness of the agency’s OCI mitigation analysis. The awardee had other contractual responsibilities in the area of spectrum management. The agency recognized this contractual effort, but concluded that it would not have a significant impact on the awardee’s performance. The GAO was not satisfied with the thoroughness of the agency analysis and sustained the protest. This decision underscores the need for contemporaneous documentation of the agency’s analysis of OCI mitigation. So, for those of you in federal service, take note! GAO Report -

Current GAO View Science Applications International Corporation, (B , May 3, 2004) Agency should have assessed the OCI implications in awarding a Systems Engineering and Technical Assistance (SETA) contract to a company which is regulated by the agency (in environmental support work). The SAIC protest involved a challenge to an agency’s award of a contract for environmental support services to a company which actually ran agency locations as a Government owned contractor operated facility. SAIC asserted that because the awardee would thereby end up overseeing environmental matters on facilities it was responsible for, this created an impermissible OCI. The contracting officer openly admitted in testimony before the GAO that he did not realize this impact. The protest was sustained, discussions were re-opened. The original awardee then submitted an OCI mitigation plan which the agency successfully negotiated to resolution of the OCI. SAIC was later unsuccessful in challenging the effectiveness of the OCI mitigation plan. GAO Report -

Lucent Technology World Services, Inc., (B-295462, March 2, 2005)
Current GAO View Lucent Technology World Services, Inc., (B , March 2, 2005) GAO held that the agency had “broad discretion” to make an OCI determination Lack of OCI provisions in a specification development effort did not preclude an OCI exclusion in a later competition! The Lucent Technologies decision is a very significant one for both the government and industry. It stands for the principle that the contracting officer has broad authority in assessing OCI matters. In this case, Lucent was advised by the contracting officer that it could not compete in an effort for which Lucent prepared a substantial part of the competitive specifications for a communications system requirement. Lucent tried to assert that there were other inputs to the specification and that its original contract did not have sufficient OCI provisions to highlight this restriction. The GAO was not persuaded by these arguments, holding that FAR addressing OCI was general guidance and that the contracting officer had discretion to apply these regulations as appropriate based upon the facts presented. GAO Report -

Nelson Erection Company, Inc., (B-217556, April 29, 1985)
Earlier GAO Precedent Nelson Erection Company, Inc., (B , April 29, 1985) A contracting agency may impose a variety of restrictions, whether or not explicitly addressed in applicable procurement regulations, where the needs of the agency or the nature of the procurement dictates such restrictions. This GAO decision is the Nelson Electric Company decision. It is an earlier case which also supporting this concept of the broad discretion afforded the contracting officer. Because it is a 1985 decision, it shows that the GAO has long-held this position on broad discretion. In this case, the agency had excluded Nelson from competing on a requirement for which Nelson had substantially prepared the statement of work for a prime contractor. Nelson asserted that the nature of the work, construction repair of a hangar door, left little ability for the company to skew the specifications to its benefit. The parts involved were readily available. The GAO was not persuaded and allowed deference to be granted to the agency making its assessment that there was an OCI. Nelson unsuccessfully argued that it had not been put on notice of the potential for OCI exclusion because the original contract had no OCI provisions. The GAO stated that lack of prior notice was not a basis to overturn the agency’s decision. GAO Report -

DZS/Baker LLC;Morrison Knudsen Corporation File ,
Earlier GAO Precedent DZS/Baker LLC;Morrison Knudsen Corporation File , (B , January 12, 1999, B , 19 November 1999) In an A-76 cost comparison study, where 14 of 16 agency evaluators held positions under the study and thus were subject to being contracted out, a conflict of interest that could not be mitigated was created, and protests challenging the evaluators’ conclusion that all private-sector offers were unacceptable was therefore sustained. This is an example of a situation in which a conflict of interest that could not be mitigated was created. Government personnel were subject to being contracted out and yet they were the evaluators in the subject A-76 study. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. GAO Reports:

CONTRACTING OFFICER RESPONSIBILITIES

Contracting Officer Responsibilities
Using the general rules, procedures, and examples in FAR 9.5, contracting officers shall analyze planned acquisitions in order to – (1) Identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) Avoid, neutralize, or mitigate significant potential conflicts before contract award. (FAR 9.504)

Contracting officers should obtain the advice of legal counsel in evaluating potential conflicts and in developing any necessary solicitation provisions and contract clauses Before issuing a solicitation for a contract that may involve a significant potential conflict, the contracting officer shall recommend to the HCA a course of action for resolving the conflict The contracting officer’s judgment need be formally documented only when a substantive issue concerning potential organizational conflict of interest exists. (FAR 9.504)

Before determining to withhold award based on OCI considerations, the contracting officer shall notify the contractor, provide the reasons therefor, and allow the contractor a reasonable opportunity to respond. If the contracting officer finds that it is in the best interest of the United States to award the contract notwithstanding a conflict of interest, a request for waiver shall be submitted in accordance with The waiver request and decision shall be included in the contract file. (FAR 9.504)

MITIGATION PLANS

Key Ways to Deal with OCI
Avoid- includes excluding certain sources from a competition or eliminate a segment of work from a contract Neutralize- excluding contractor participation in source selection activities or barring access to sensitive data Mitigate- Means to reduce or alleviate the impact of an unavoidable OCI. Contractor creates an OCI Mitigation Plan

OCI Mitigation Plan Contractor creates a mitigation plan, which proposes actions to identify and reduce actual or apparent OCIs to an acceptable level Mitigation plan must be based on accurate facts, be reasonable, and be followed Note: Some OCIs may not be mitigatable. (See Aetna Government Health Plans, Inc, B , July 27, 1995 ) GAO Report:

Common Elements of OCI Plan
Non-Disclosure agreements Controlled access to sensitive information Establishment of an employee OCI awareness/compliance program Physical separation of contract employees from sensitive data Organizational separation Management separation Limitation on personnel transfers

Mitigation Plans All work under the proposed new contract effort should be performed in a division which has no contract responsibilities or management of the existing contract Plan should address the steps the contractor will take to preclude any perception that it would favor its own products or services; isolate personnel Next I would like to step into a discussion of effective OCI mitigation plans. I have a few thoughts here on proposed structure of OCI measures. One key aspect is to show sufficient isolation of effort and personnel. Geographical separation, separation of management reporting and the like. A more difficult hurdle to overcome is the potential for perception of favoritism, commonly referred to as impaired objectivity.

Firewalls - Elements Define the information covered ( legends)
Identify responsibility for procedure compliance Agreement on purposes for which the information may be used Procedures to protect the information (security, tracking) Limits on dissemination (need to know) Compliance (audits, corrective actions) Another key element in an OCI mitigation plan would be the description of the firewalls that would be or are established. Some of the basics are covered on this chart A lot of these you would expect as grounds rules in the process – what is covered, how is it addressed, what are the processes to expect.

Mitigation Plans Personnel issues:
In-house OCI training – what will existing and new employees be taught? Frequency of training (initial and recurring) How is this reinforced? Employee OCI reporting requirements Consequences for OCI violation Disclosure of violations to the Government Another aspect of an OCI mitigation plan that would need to be addressed is in-house training on OCI issues. A plan itself without training of personnel may be ineffective. So, here are a few considerations on training.

Training In reviewing an OCI mitigation plan, examine various aspects of company training: New Employees Termination Checklist Proposal Teams Defining who needs the training Corporate responsibility for ensuring right people receive the training Examine compliance systems that maintain a tracking system for various training courses Here is some additional information on training issues.

Personnel issues continued
Mitigation Plans Personnel issues continued Employee transfers and separations Within-company transfer with Government approval on a case-by-case basis using a nondisclosure agreement Nondisclosure agreements used to address the potential of the employee separating from the company as well Another aspect of personnel issues involves transfers and separation of employees. I would generally expect to see a plan address this topic, although the level of detail may vary. Nondisclosure agreements may also be included as attachments to the plan to assure that separating employees understand the requirement to keep information confidential. Enforcement of nondisclosure agreements is a problem area because the enforcement mechanism is a private matter between the company and the former employee unless criminal conduct were involved.

Proprietary Information Protection Acknowledgment by Employees
New employees should sign acknowledgment of restrictions on transferring proprietary information of their former employer to their new employer, and sign an agreement to protect the proprietary information of the hiring company Certification of employees assigned to proposal teams that they have had no exposure to competitors’ competition sensitive information within last “X” years either as an government advisor or as the employee of the competitor Termination checklist includes employee acknowledgment of their obligation to protect the proprietary information of their former company as well as that of third parties On thing to do is to start out right on the initiation of employment with acknowledgement of restrictions on handling proprietary information in addition to nondisclosure agreements. Employment of former government employees raises other issues which may cause additional ethical issues but the topic should be broached and addressed up front. Lastly, a termination checklist would be very useful to have as well.

Personnel issues continued –
Mitigation Plans Personnel issues continued – Employee compensation issues must also be addressed Will employees’ 401(k) plans include company stock? Any profit sharing issues? Another area while still addressing personnel would be employee compensation. This would be something to analyze to try to counter an impaired objectivity issue. If an employee’s compensation would be affected, then impaired objectivity would be a concern.

What about company affiliates?
Mitigation Plans What about company affiliates? Is there a basis to distinguish them as wholly separate entities? Are firewalls among divisions of a company sufficient to address impaired objectivity or biased ground rules? (See the Aetna case B previously cited) FAR states that company affiliates are considered to be the same as the parent company. However, one must closely examine the corporate structure and determine whether the business entities have sufficient independence and isolation. Contractors need to submit their organizational charts for Government review. Firewalls among divisions need to withstand scrutiny with respect to issues of impaired objectivity and biased ground rules. Even more stringent analysis may be necessary depending upon the facts presented. GAO Report:

Mitigation Plans For a sample Mitigation Plan Table of Contents go to the following ESC web link and click under “OCI Checklist”: FAR states that company affiliates are considered to be the same as the parent company. However, one must closely examine the corporate structure and determine whether the business entities have sufficient independence and isolation. Contractors need to submit their organizational charts for Government review. Firewalls among divisions need to withstand scrutiny with respect to issues of impaired objectivity and biased ground rules. Even more stringent analysis may be necessary depending upon the facts presented.

FAR EXAMPLES

FAR Examples a) Company A agrees to provide systems engineering and technical direction for the Navy on the powerplant for a group of submarines (i.e., turbines, drive shafts, propellers, etc.). Company A should not be allowed to supply any powerplant components. Company A can, however, supply components of the submarine unrelated to the powerplant (e.g., fire control, navigation, etc.). In this example, the system is the powerplant, not the submarine, and the ban on supplying components is limited to those for the system only. (FAR 9.508)

FAR Examples (b) Company A is the systems engineering and technical direction contractor for system X. After some progress, but before completion, the system is canceled. Later, system Y is developed to achieve the same purposes as system X, but in a fundamentally different fashion. Company B is the systems engineering and technical direction contractor for system Y. Company A may supply system Y or its components (FAR 9.508)

FAR Examples c) Company A develops new electronic equipment and, as a result of this development, prepares specifications. Company A may supply the equipment. (d) XYZ Tool Company and PQR Machinery Company, representing the American Tool Institute, work under Government supervision and control to refine specifications or to clarify the requirements of a specific acquisition. These companies may supply the item. (FAR 9.508)

FAR Examples e) Before an acquisition for information technology is conducted, Company A is awarded a contract to prepare data system specifications and equipment performance criteria to be used as the basis for the equipment competition. Since the specifications are the basis for selection of commercial hardware, a potential conflict of interest exists. Company A should be excluded from the initial follow-on information technology hardware acquisition. (FAR 9.508)

FAR Examples (f) Company A receives a contract to define the detailed performance characteristics an agency will require for purchasing rocket fuels. Company A has not developed the particular fuels. When the definition contract is awarded, it is clear to both parties that the agency will use the performance characteristics arrived at to choose competitively a contractor to develop or produce the fuels. Company A may not be awarded this follow-on contract. (FAR 9.508)

FAR Examples (g) Company A receives a contract to prepare a detailed plan for scientific and technical training of an agency’s personnel. It suggests a curriculum that the agency endorses and incorporates in its request for proposals to institutions to establish and conduct the training. Company A may not be awarded a contract to conduct the training. (FAR 9.508)

FAR Examples (h) Company A is selected to study the use of lasers in communications. The agency intends to ask that firms doing research in the field make proprietary information available to Company A. The contract must require Company A to -- (1) Enter into agreements with these firms to protect any proprietary information they provide and (2) Refrain from using the information in supplying lasers to the Government or for any purpose other than that for which it was intended. (FAR 9.508)

FAR Examples (i) An agency that regulates an industry wishes to develop a system for evaluating and processing license applications. Contractor X helps develop the system and process the applications. Contractor X should be prohibited from acting as a consultant to any of the applicants during its period of performance and for a reasonable period thereafter. (FAR 9.508)

PROVISIONS AND CLAUSES

Provisions and Clauses
Significant potential OCIs are normally resolved by imposing some restraint, appropriate to the nature of the conflict, upon the contractor’s eligibility for future contracts or subcontracts. Therefore, affected solicitations shall contain a provision that – Invite offeror’s attention to FAR 9.5 States the nature of the potential conflict as seen by the contracting officer States the nature of the proposed restraint upon future contractor activities; and Depending on the nature of the acquisition, states whether or not the terms of any proposed clause and the application of this subpart to the contract are subject to negotiation. (FAR )

If, as a condition of award, the contractor’s eligibility for future prime contract or subcontract awards will be restricted or the contractor must agree to some other restraint, the solicitation shall contain a proposed clause that specifies both the nature and duration of the proposed restraint. The contracting officer shall include the clause in the contract, first negotiating the clause’s final terms with the successful offeror, if it is appropriate to do so. (FAR ) The Contracting Officer will want any OCI clauses/issues addressed prior to issuance of Request for Final Proposal Revision.

The restraint imposed by an OCI clause shall be limited to a fixed term of reasonable duration, sufficient to avoid the circumstance of unfair competitive advantage or potential bias. This period varies. It might end, for example, when the first production contract using the contractor’s specifications or work statement is awarded, or it might extend through the entire life of a system for which the contractor has performed systems engineering and technical direction. In every case, the restriction shall specify termination by a specific date or upon the occurrence of an identifiable event (FAR )

Insert the clause , Organizational Conflict of Interest, in Section I when the contractor’s eligibility for future prime contract or subcontract award shall be restricted because of services being provided as stated in FAR through 4. -- Insert the basic clause when the contractor will be providing systems engineering and/or technical direction (FAR ) -- Insert the basic clause and Alternate I when the contractor will be preparing specifications or work statements (FAR ) -- Insert the basic clause and Alternate II when the contractor will be providing technical evaluation or A&AS (FAR ) (AFMC Sup )

(Continued) -- Insert the basic clause and Alternate III when the contractor will be obtaining access to proprietary information (FAR ) -- Insert the basic clause and Alternate IV when the contract is a task ordering contract and when more than one system is supported. The CO may modify Alternate IV to include a list of systems for which task orders may be issued and indicate which OCI provisions apply. (AFMC Sup )

(Continued) -- Insert the basic clause and Alternate V when the contract provides for delivery orders. The CO shall indicate which OCI provisions apply. -- Insert the basic clauses and Alternate VI when it is necessary to have the retrictions of this clause included in all or some subcontracts, teaming arrangements, and other agencies calling for performance of work related to the contract. (AFMC Sup )

As prescribed in FAR , insert in Section L, the provision at , Potential Organizational Conflict of Interest (AFMC Sup )

MISCELLANEOUS TOPICS

Miscellaneous Topics - Waiver Process
The agency head or designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest. (FAR 9.503) Any request for waiver must be in writing, shall set forth the extent of the conflict, and requires approval by the agency head or designee. (FAR 9.503) The HCA is authorized to waive FAR 9.5 requirements. (AFFARS )

Miscellaneous Topics - Lead System Integrator
“Lead System Integrator” is defined in DFARS clause : 1) “Lead system integrator” includes “lead system integrator with system responsibility” and “lead system integrator without system responsibility.” (2) “Lead system integrator with system responsibility” means a prime contractor for the development or production of a major system if the prime contractor is not expected at the time of award, as determined by the Contracting Officer, to perform a substantial portion of the work on the system and the major subsystems. (3) “Lead system integrator without system responsibility” means a contractor under a contract for the procurement of services whose primary purpose is to perform acquisition functions closely associated with inherently governmental functions (see section 7.503(d) of the Federal Acquisition Regulation) with regard to the development or production of a major system.

Miscellaneous Topics - Lead System Integrator
Any entity performing lead system integrator functions in the acquisition of a major system by DoD is prohibited from having any direct financial interest in the development or construction of any individual system or element of any system of systems unless an exception applies. (DFARS )

Miscellaneous Topics - Non-Government Advisors
If non-government advisors in the performance of advisory and assistance (A&AS) services for the Government require access to proprietary information of other companies, the contracting officer shall ensure that the A&AS contracts contain the appropriate OCI clauses. (AFMC FARS )

When non-government advisors will be used in the source selection process, the contracting officer shall ensure compliance with the requirements of AFFARS (c)(2) as follows: -- Non-government advisors may be used as necessary to assist in the source selection evaluation. -- Although advisors may assist in the evaluation and provide input regarding the strengths, deficiencies, and weaknesses in proposals, they shall not determine ratings or rankings of offerors’ proposals. -- Non-government advisors shall not be the SSA, Chairperson of the SSET/SSAC or a member of or advisor to the Performance Confidence Assessment Group.

If contractor personnel are used as advisors the following applies: Access to offeror proposals shall be restricted to only those portions for which the individual’s expertise is required in the evaluation (e.g., software support contractor only reviews software hours proposed). (ii) The contracting officer shall ensure that the necessary approval has been obtained in accordance with FAR 37.2. (iii) The solicitation shall list contractors who will be used, provide notice to prospective offerors that such contractor personnel will be used and the manner in which they will be used, and provide the offeror an opportunity to object to the release of proposal information (see (v) below). (AFFARS (c)(2))

If contractor personnel are used as advisors the following applies: (Continued) (iv) Appropriate Organizational Conflict of Interest (OCI) clauses shall be included under the contract through which the non-government personnel are provided and those non-governmental personnel shall not have any financial interests with any of the offerors. (v) If a competing offeror objects to the release of their proposal information to any non-government advisor, the contracting officer shall make a determination whether the non-government advisor(s) shall be permitted to participate in the source selection. The contracting officer shall inform the objecting offeror of the final determination, and, if the use of non-government advisors has been changed, shall inform all offerors of the change. (AFFARS (c)(2))

The use of non-government advisors and OCI clauses should be addressed in the Source Selection Plan for acquisitions using the FAR source selection procedures as follows:

OCI REFERENCES

OCI References FAR 9.5 DFARS 209.5 DFARS PGI 209.5 AFFARS 5309.5
AFMC FARS AFMC IG Government-Contractor Relationship Guide found at the following web site: af/USAF/ep/contentView.do?contentType=EDITORIAL&c ontentId= &channelPageId=- &programId=

OCI References AFMC Government Contractor Relationship video, Continuous and Topical Training: DAU course CLC 132, OCI AFFARS Library, Part 9,

OCI SUMMARY OCI = Show Stopper
Important to avoid, neutralize, and/or mitigate OCIs before contract award Government has the responsibility to ensure OCIs are properly handled. The CO must obtain advice of Legal Counsel Each OCI situation is different and fact-specific Our ultimate customer is the general public – needs to have absolute confidence in the impartiality of the Government process Common sense, good judgment and sound discretion is required

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