Office of Procurement Acquisition and Logistics Organizational Conflicts

Office of Procurement, Acquisition and Logistics Organizational Conflicts of Interest (OCIs) Carolyn Carbone - Director, Procurement Service F, VA Technology Acquisition Center Colin Nash – Office of the General Counsel June 6, 2019 1

What are OCIs? • Because of activities/relationships, a person is unable/potentially unable to render impartial assistance or advice, or person’s objectivity in performing contract work is or might be otherwise impaired, or a person has an unfair competitive advantage. 2

How do we define? • FAR Subpart 9. 5 provides guidance/details • GAO/COFC guidance 3

Why do we care about OCIs? • • Delays Litigation Breach of Contract Exclusion from Future Procurements ***Integrity of Procurement Process*** 4

2 Main Types of OCIs • “Informational” OCIs – • “Bias-Type” OCIs – 5

Definition – Informational OCIs • “Informational” OCIs • Occur when a contractor (or its affiliate) receives unequal access to “nonpublic information” due to the Government’s actions, thereby receiving a competitive advantage on another contract • Most instances involve one contractor obtaining proprietary information belonging to other contractors • Concern is to preserve competitive field • These OCIs are easier to identify – review your PWS/SOW to see if it includes processing of data/records/info that is not in the public domain 6

Defining Bias-Type OCIs • “Bias-Type” OCIs – • “Impaired objectivity” - Due to role of contractor (or its affiliates) under contract #1, contractor cannot be fully objective in performing under contract #2 • “Biased ground rules” - Due to role of contractor (or its affiliates) in contract #1, contractor is able to “set the ground rules” / “skew the competition” to its advantage under contract #2 7

Bias-Type OCIs • Generally harder to identify and understand than informational OCIs • Involves performance of conflicting roles • Concern is that contractor has power to influence in manner that promotes its interest as opposed to Agency’s 8

Timing of and Responsibility for OCI Determinations • FAR 9. 504 (a)(1): “Identify and evaluate potential OCIs as early in the acquisition process as possible. ” • Don’t ‘hope’ it won’t surface during protest! • Responsibility rests with Contracting Officer! • Determines whether a significant OCI exists and develops an appropriate way to resolve it. • Truly team effort (requiring activity, legal, SMEs & affected contractor) 9

Contract Clauses • VAAR 852. 209 -70 Organizational Conflicts of Interest • Requires offerors to provide a statement that describes all relevant facts concerning any past, present or currently planned interest (financial, contractual, organizational, or otherwise) or actual or potential organizational conflicts of interest relating to the services to be provided under this solicitation • Tailored Organizational Conflict of Interest Clauses • Per FAR 9. 507 -1 and VAAR 809. 507 -1 (a), VA may places restraints upon contractor’s eligibility for future contracts • Absence of such restrictions is not dispositive 10

Dealing with OCIs • Must • Avoid/Prevent (don’t compete? ) • Neutralize (unaffiliated subcontractor? ) • Mitigate (Comprehensive Mitigation Plan? ) • Informational Firewalls (not Bias-type OCIs ) • NDAs, Physical Separation, Computer Security, Training & Monitoring • Waiver – last ditch effort where other mitigation efforts have failed. 11

Office of Procurement, Acquisition and Logistics Questions? ? ? 12