On December 27, President Biden signed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act into law. The legislation, ushered through Congress by a bipartisan group of backers, strengthens existing regulations around federal contractor conflict of interest mitigation and provides new requirements for agencies to follow to sniff out potential conflicts of interest. Continue Reading New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest
Organizational conflicts of interest (OCI) are troubling for both the government and contractors. Under FAR 2.101, an OCI is a situation where “a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” In an OCI investigation, a contracting officer (CO) should assess OCI risk during the pre-award and post-award procurement processes.
Recent Court of Federal Claims (COFC) Cases
On August 2, 2021, Judge Solomson issued his decision in Oak Grove Technologies, LLC v. United States. The unsuccessful offeror, Oak Grove Technologies (OGT), filed a bid protest challenging the United States’ award to the successful offeror, F3EA. In the complaint, OGT questioned the agency’s award decision and raised numerous challenges regarding the evaluation process. OGT also provided evidence that F3EA had allegedly improperly benefited from unequal access to information and biased ground rules. Essentially, OGT argued that an OCI tarnished the award. During a hearing, the court questioned the integrity of the procurement and recognized that OGT was not treated with the fairness required under the Federal Acquisition Regulation (FAR). The court ultimately granted OGT’s motion and the agency was prevented from proceeding with the award to F3EA.Continue Reading Not Quite Good Enough: COFC Finds Agencies OCI Investigations Fall Short
A recent Government Accountability Office (GAO) decision, International Business Machines Corporation, B-410639, et al., Jan. 15, 2015, highlights the need for contractors to ensure that both they and their subcontractors are free of or can sufficiently mitigate any organizational conflicts of interest (OCIs).
On January 15, 2015, the GAO denied IBM’s bid protest over an award of an indefinite-delivery/indefinite quantity contract to upgrade a Department of Defense payroll system. IBM protested its elimination from the competition because key personnel from its proposed subcontractor, Booz Allen Hamilton, were involved in developing the statement of work, solicitation and other key acquisition documents and strategies, resulting in a “biased ground rules” OCI.Continue Reading Beware of Your Subcontractor’s Organizational Conflicts of Interest