Services council wants conflict rules updated

The federal government's regulations on organizational conflicts of interest in contracting ought to be simplified, updated and restructured but should avoid a "one-size-fits-all" approach or standard clause on the subject, the Professional Services Council has recommended.

The council, a trade association representing providers of professional services to the government, submitted comments July 17 to the federal acquisition regulations councils, proposing a rewrite of Subpart 9.5 of the Federal Acquisition Regulation to better address current issues related to such conflicts.

The seven pages of comments were delivered in response to an advance notice of proposed rulemaking published by the FAR councils in March.

"The current FAR 9.5 has been in place for decades," Alan Chvotkin, executive vice president of the PSC, wrote. "These regulations should be simplified, updated, and restructured to more effectively address current issues relating to organizational conflicts of interest, update the terminology for current situations, and baseline the duties, timing and roles and responsibilities of agencies, contracting officers and contractors."

However, a single standard clause pertaining to such conflicts is neither appropriate nor necessary, Chvotkin added.

The council's recommendation is to reorganize Subpart 9.5 to deal exclusively with organizational conflicts of interest, with five sections: overview, definitions, types of OCIs, neutralization and mitigation strategies and contracting officer responsibilities.

As a general policy, contracting officers should closely examine each potential OCI, but at the same time they should encourage the acceptance of plans that neutralize or mitigate such conflicts when the government determines that its interests will not be compromised, or waive such conflicts when such actions are in the government's interest, Chvotkin wrote.

A critical component in updating the conflict of interest rules is to reformulate contracting officer responsibilities. With so many protests filed by contractors, and findings made by the GAO and by courts, it is obvious that contracting officers need more training on their role in addressing such conflicts, the PSC advised.

It is the contracting officer's responsibility to effectively plan and anticipate possible OCIs before releasing a solicitation, the PSC said. Contracting officers have a responsibility to identify and assess the nature of the services being requested, identify potential competitors, seek information related to potential OCIs before proposal submission, and seek guidance from the requiring activity to determine whether the potential for an OCI may be created, Chvotkin said.