These days it often seems like both sides of the congressional aisle cannot agree on anything and bipartisan support is in short supply. However, one thing that Congress can agree on is the fact that organizational conflicts, which can lead to unfair advantages, have no place in Federal contracting. On March 23, 2022, Michigan Senator Gary Peters, with support of three other senators, introduced S. 3905, the Preventing Organizational Conflicts in Federal Acquisition Act (the Act). The bill aims to identify and prevent organizational conflicts of interest (OCI) that have been slipping through the cracks, stating that “[p]rotecting against conflicts of interest in Federal acquisition is vital to the integrity of Government operations.”
The FAR’s current OCI regulation is found at FAR 1352.209-74, but recent reports and Comptroller General bid protest decisions have uncovered failures in both identification and mitigation of OCIs. A press release issued by Senator Peters included information on some recently identified OCIs that had gone unnoticed and stressed the importance of identification from the outset of the contracting process. According to Senator Peters, the enactment of the Act would “ensure tax dollars are being used to hire contractors that are focused on working in the best interest of the American people.”
The Act would require federal contractors to disclose business relationships that conflict with the work an agency has hired them to do. Additionally, private companies currently under contract with the U.S. Government would be required to disclose new potential business that opposes the work being done for an agency. Finally, the Act would ensure federal contractors understand disclosure requirements and know how working with agencies could potentially affect other parts of their business. Federal agencies would be required to assess and update their procedures for determining whether there is an OCI.
The bill is currently in the hands of the Committee on Homeland Security and Governmental Affairs. If the bill goes all the way, the Federal Acquisition Regulatory Council will be required to identify the contracting methods, types, and services that raise concerns for potential OCIs that are not already identified in the FAR and revise the FAR to include methods to identify and mitigate OCIs.
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