Back in 2023, we wrote about Congress’s late-2022 mandate to update and clarify various rules surrounding organizational conflicts of interest (or OCIs). At that time, Congress, in a short piece of legislation, asked that OCI rules be updated to address a number of areas. In this post, I’ll provide some predictions about how the OCI rules will be updated, as we wait for the new proposed rule to come out. In addition, I’m discussing this topic at the Judicial Conference for the U.S. Court of Federal Claims. Once the proposed rule is released, SmallGovCon will also do a run-through of those changes.
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Apparent Conflict: Appearance of Impropriety Enough to Exclude a Contractor from Federal Contract
When a government employee moves from a federal agency to a private contractor, this sort of revolving door can lead to concerns that contractor hiring the ex-agency employee is getting special treatment. To avoid this concern, the ex-agency will sometimes bar the contractor from competing. In a recent case, the Navy did just that and a court had to review if the Navy made a reasonable decision.
Continue readingContracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity
Contracting agencies, and contractors, must always be aware of potential organizational conflicts of interest (OCIs). An OCI can result in a contractor being kicked off a federal procurement. One type of OCI is an impaired objectivity OCI, typically resulting from a contractor evaluating its own offer or its own performance. In a recent decision, the United States Court of Federal Claims (COFC) said that an agency was overly cautious in rejecting an offeror based on a perceived OCI.
Continue readingGAO Upholds Low Agency Bar to Waive OCI
The FAR requires offerors, in most situations, to disclose any actual or potential organizational conflicts of interest (OCI) that exist when submitting an offer or proposal in response to a solicitation. While it is rare that an offeror will be excluded from competition solely due to the existence or potential of an OCI, offerors who do not disclose as required will most likely be excluded, making this a situation where you generally want to disclose the existence of an OCI up front, not explain after the agency’s discovery through other means. Offerors may choose to avoid, mitigate, or neutralize an OCI by putting up a organizational barrier between the individual creating the OCI and the perceived or actual conflict. However, in some situations, avoiding, mitigating, or neutralizing the OCI may not be in the agency’s best interest. In that case, and as happened in Accenture Federal Services, LLC, agencies are given the option to waive the requirements of FAR subpart 9.5, thereby making award regardless of the existence or potential of an OCI.
Continue readingNew OCI Law Focuses on Private Sector Contracts, More Examples, More Procedures
Late 2022, the president signed a law that would increase what contractors have to reveal about potential organizational conflicts of interest. The law is called the Preventing Organizational Conflicts of Interest in Federal Acquisition Act. Below, we highlight some of the main things contractors should look out for based on this new law.
Continue readingWho You Gonna Call? Your Contracting Officer
In our line of work, we regularly litigate protests, appeals, claims, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also opportunities to communicate with your contracting officers for networking and marketing purposes that many contractors (often unnecessarily) shy away from. This article is the first of three articles that will provide you with some tips for when and how to communicate with your contracting officer at different steps of the procurement process. This article will focus on pre-solicitation and solicitation communications; the next will focus on proposal submission communications; and the third will focus on contract performance communications.
Continue readingLoose Lips Sink Ships: Award Revoked for Relying on Inside Information from Former Navy Officials
We want to make something clear: simply having a former government official as an employee does not mean your company can’t bid on federal contracts or needs to let that person go. The government, while it puts certain restrictions in place, doesn’t forbid government contractors from hiring former government employees, and it can be very beneficial to have employees with such experience and still perfectly ethical. What it does forbid is when the company is or even just appears to be getting some sort of unfair advantage in acquiring contracts as a result of having former government workers as employees. For example, what if the contractor hires someone who was with the procuring agency and had access to information on competitors for an upcoming solicitation? This is the sort of thing that will result in awards being lost, as one company learned.
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