Critical New Developments in Organizational Conflicts of Interest

Dick BeanAssociate General Counsel

General Dynamics C4 Systems richard.bean@gdc4s.com

781-455-3051

Point to Ponder

Arnold Palmer once said:

“Golf is amazingly simple, and endlessly complicated.”

The same can be said about Organizational Conflicts of Interest!

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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!

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Summary of Issues

• The Basics – What is an OCI?• FAR Case 2007-018 (Now FAR Case 2011-001)• DFARS Case 2009-D015• GAO Bid Protests• U.S. Court of Federal Claims Bid Protests• Agency Approaches to OCI• Trends/Conclusions/Questions?

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The Basics – What is an OCI?

• FAR 2.101 … 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)5

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

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FAR Case 2011-001

• Issued 10/6/2010 as a restatement of FAR Case 2007-018

• 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)

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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, 2019 75 Fed. Reg. 81908-81915

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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

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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

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Proposed DFARS• Proposed DFARS displaced traditional hierarchy of

acquisition regulations established when the FAR was promulgated in 1984:

“DoD proposes to use DFARS subpart 203.12 in lieu of the present FAR Part 9.5” (75 Fed. Reg. pages 20954-55)

• 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

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Proposed DFARS

• “However, when the FAR is revised, pursuant to the Section 841(b)[Pub.L. 110-417] 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 20954-55)

• Why should the DFARS be revised twice? Why not wait for action on FAR Case 2007-018?

• Result: DoD only implemented changes affecting MDAP programs as WSARA had directed.

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Proposed DFARS

• Proposed DFARS 203.1203(c) and 203.1205-1(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

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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”

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Proposed DFARS

• Proposed 203.1205-2 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

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Proposed DFARS

• Proposed 203.1205-3 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

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Proposed DFARS

• Proposed 203.1205-4 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!

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Proposed DFARS

• Proposed 203.1206 requires inclusion of a solicitation provision (252.203-70XX) 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 252.209-7008 and 252.209.7009

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Final Rule DFARS

• DFARS 252.209-7008 – 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 252.209-7009 – Affects major subcontractors as well their affiliates unless an OCI mitigation plan is approved and incorporated into the contract as a material requirement

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Proposed DFARS

• Proposed 252.203-70XX(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

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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

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Proposed DFARS

• Proposed 252.203-70ZZ, 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

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Proposed DFARS

• Proposed DFARS rules may have gone too far in attempting to apply language from Aetna Government Health Plans, Inc., B-254397, 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

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FAR Case 2011-01• 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• http://www.acq.osd.mil/dpap/dars/opencase

s/farcasenum/far.pdf

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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 9.504 OCI waiver – CIA had

met all of the FAR requirements

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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

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GAO Decisions• CIGNA Government Services, LLC, B-401068.5,

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

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GAO Decisions

• Ellwood National Forge Company, B-402089.3, 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

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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

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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

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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

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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

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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

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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

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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 it35

COFC Decisions

• Turner is now on appeal to the U.S. Court of Appeals for the Federal Circuit– Docket No. 2010-5158– Watch for further developments!

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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

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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

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Agencies’ OCI Approaches: A Sampling

• NASA:http://www.hq.nasa.gov/office/procurement.OCIGuide.pdf

• Missile Defense Agency:Statement of Policy dated 24 November 2008

• NRO Corporate OCI Agreement Program, 26 June 2009 [Notice 2009-04]

• Air Force Electronic Systems Center:http://herbb.hanscom.af.mil

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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!

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