Buy Lines: Keep your eyes open for conflicts of interest

Bob Dickson

Enterprisewide solutions can optimize results and leverage available funding for federal agencies. But sometimes they also create potential for organizational conflicts of interest or related appearance issues. To most effectively deal with this, government and industry need to share a common understanding of the ground rules.

A conflict of interest usually occurs when a contractor cannot render impartial advice or assistance to an agency, or is potentially unable to do so. In some cases, conflicts simply involve an unfair competitive advantage for a contract award.

Requirements found in the Federal Acquisition Regulation 9.5 subpart titled "Organizational and Consultant Conflicts of Interest," embody two underlying concerns. One involves a competition-related self-interest or bias, and the other relates to an unfair advantage through access to proprietary information about a competitor or source-selection information not available to all competitors.

The regulation is designed to help contracting officers and potential offerers recognize and avoid such conflicts by focusing on four circumstances that tend to give rise to conflicts of interest:

  • Providing systems engineering and technical direction. When a contractor offers such services but does not have contractual responsibility for related development, integration, assembly or production for that system, that contractor is prohibited from competing either as a prime or subcontractor for a deal to supply that system.

  • Preparing specifications and work statements. With certain exceptions, a contractor who prepares or assists with a statement for a government requirement cannot also compete for the subsequent award.

  • Providing evaluation services. Contractors cannot evaluate their own proposals or those of their market competitors without proper safeguards to ensure objectivity and protect the government's interest.

  • Obtaining access to proprietary information. When a contractor needs proprietary information from other contractors for a government contract and can use the leverage of the contract to obtain it, the contractor may gain an unfair competitive advantage unless restrictions are imposed. These restrictions protect the information and encourage companies to provide it when necessary.

So what can contractors expect of government officials seeking to avoid a conflict of interest? First of all, contracting officials should be aware of the potential for conflicts and work to structure the acquisition to mitigate or avoid them.

Secondly, contracting officials can use advisory and assistance contractors that have no commercial interest in the outcome or no commercial clients in the arena of the agency requirement.

Thirdly, when conducting a competitive sourcing acquisition using A-76 or alternative procedures, they can use separate contractors for assistance with development of the performance work statement and the agency's management plan.

Finally, they should develop a pre-procurement checklist or fact sheet to insure all potential conflict of interest aspects have been properly considered.

Potential conflicts of interest normally are resolved by imposing some appropriate restraint upon the contractor's eligibility for future work. However, in rare cases properly justified waivers may be granted by agency management.

The contracting officer is responsible for identifying and resolving potential conflicts in federal acquisitions. In the face of conflicts, the officer, in accordance with federal acquisition regulations, must "avoid, neutralize or mitigate" that conflict before the award.

Experienced professional contracting officers usually obtain the advice of counsel. Given the nature of the impact on agency programs, senior leadership and program managers should be involved and know the rules as well.

Avoiding conflicts of interest is a serious concern of government and industry personnel. Dealing with conflicts at the beginning of an acquisition can avoid uncertainty and allow all involved to focus on delivering results.

Bob Dickson is vice president of Acquisition Solutions Inc., Chantilly, Va. His e-mail address is bdickson@acqsolinc.com.

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