Ethics Issues in Contracting Naval Acquisition Development Program 2016 Annual Symposium March 24, 2016 Tom Frankfurt Assistant General Counsel (Research,

Slides:



Advertisements
Similar presentations
LaRC Office of Chief Counsel (OCC) Provides legal support, advice, representation to LaRC personnel on wide range of legal matters Business Law (Contracts,
Advertisements

VIRGINIA PUBLIC PROCUREMENT ACT ARTICLE 1-GENERAL PROVISIONS § Short title; purpose; declaration of intent. -- A. This chapter may be cited as.
Washington Headquarters Services Office of General Counsel Ask, But Don’t Tell (Too Much): Contacts With Industry April 2011 Andrew Bramnick, Esq. Janet.
Organizational Conflicts of Interest (OCI)
Mr. Seth Cowell Ethics Counselor ESC/JA (781)
Air Force Materiel Command
H&K Strategic Business Solutions ROBERT J. STURM SBS Consultant & Former Senior Business Development Executive with NIC and Tracor.
Procurement Integrity Act (PIA) Overview
DII Best Practices Forum: New Developments Peter J. Eyre Crowell & Moring © Crowell & Moring LLP All Rights Reserved. June 23, 2011.
April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”
Affiliation Issues in Small Business Contracting: Structure Your Proposal and Relationships for Success National 8(a) Association 2014 Summer Conference.
Dheeraj Agarwal Ethics Advisor Health Resources and Services Administration U.S. Dept. of Health and Human Services.
Affiliation Issues in Small Business Contracting FEBRUARY 3, 2015 ORLANDO, FLORIDA 1 Affiliation Issues in Small Business Contracting: Structure Your Proposal.
Overview of New Rules Keith Waye Government Contracting Small Business Administration.
Federal Advisory Committee Act (FACA)
Organization Conflict of Interest (OCI) under FAR March 2012.
© Sheppard Mullin Richter Hampton LLP 2006 Revolving Door Restrictions Keith R. Szeliga
Vendor Engagement Tips. Pre-solicitation Discussion 2  Review Federal Acquisition Regulation Subpart ” Exchanges with industry before receipt of.
Congress and Contractor Personal Conflicts of Interest May 21, 2008 Jon Etherton Etherton and Associates, Inc.
Representation Representation, for the purpose of this discussion, means knowingly making, with intent to influence, a communication (orally or in writing)
Matthew L. Harvey Office of General Counsel Illinois Commerce Commission.
BETHESDA NORTH MARRIOTT HOTEL & CONFERENCE CENTER  BETHESDA, MD.
Organizational Conflict of Interest Highlights Damien Walsh, Attorney Advisor, USJFCOM Tidewater Government Industry Council Panel Discussion 3 February.
GOVERNMENT CONTRACTING HOT TOPICS: COMPLIANCE, OCI, BID PROTESTS, AND NEW SBA RULES HOT TOPICS.
National Contract Management Association – Norfolk Chapter Contracting Ground Rules.
UARC TRAINING 24 October 2007 Review of Internal Audit and Advisory Services California Conflict of Interest Laws and Regs Organizational Conflict of Interest.
[Program Name] ORGANIZATIONAL CONFLICT OF INTEREST TRAINING
1 June Joint Venture A joint venture is an association of individuals and/or concerns with interests in any degree or proportion consorting to engage.
TIDEWATER GOVERNMENT INDUSTRY COUNCIL Contracting Ground Rules, or The 7 Habits of Highly Effective Contracting Customers in Both Government.
Five Activities Contracting Officers and Government Contractors Should Avoid Presented by: James F. Moseley, Jr. of Moseley, Prichard, Parrish, Knight,
February 2006 The Importance of Subcontract Management to Program Success.
I n t e g r i t y - S e r v i c e - E x c e l l e n c e Headquarters U.S. Air Force 1 Organizational Conflicts of Interest in Services Contracts James.
GSA Expo 2009 Ethics: Know the Rules of the Road Nicole Stein Desk Officer/Office of Government Ethics.
Office of Policy and Management State of Connecticut Presentation to the State Contracting Standards Board January 18, 2006 Office of Policy and Management.
Overview Lifting the Curtain - Debriefings FAI Acquisition Seminar.
SBA University Overview SBA Size Recertification Regulation Objective: Review Requirements of SBA Size Recertification Regulation and it’s implementation.
CURRENT STATE OF PLAY: ORGANIZATIONAL CONFLICTS OF INTEREST Alison L. Doyle McKenna Long & Aldridge LLP NCMA Cape Canaveral Chapter Workshop May 14, 2008.
Department of Energy June 16, 2015 Executive Order (EO) 13673: Fair Pay and Safe Workplaces Jean Seibert Stucky Assistant General Counsel for Labor and.
2 2 Eleanor Spector Vice President, Contracts Lockheed Martin Corporation August 5, :30-10:15AM Industry Acquisition Issues.
UARC TRAINING 23 October 2006 Introduction to Internal Audit and Advisory Services California Conflict of Interest Laws and Regs Institutional Conflict.
FAR Part 37 SERVICE CONTRACTS. Service Contracts Governed by: The Service Contracts Act OMB Circular A-76 Performance Based Acquisition.
JE-RDAP INDUSTRY DAY W911QY-16-R-0010 Kevin Parker 08 DEC 2015
1 Ethics CLARK COUNTY M-PLAN TRAINING. 2 Sources of Ethical Standards Ethics standards for management staff are derived from the following sources. They.
OGS Procurement Services Group 2009 State Purchasing Forum New York State Ethics for Public Procurement.
PAKISTAN CONFLICTS OF INTEREST Nadeem Shah, Office of Acquisition & Assistance Priya Cariappa, Resident Legal Officer.
Page No. 1 FDOC/MOD Observation Groundrules & Communication information.
Organizational Conflicts of Interest in Services Contracts Ms. Beatrice K. Foster, Esq. Air Combat Command/JAB Deputy Chief, Commercial Law 25 MAY 2010.
Regulating Ethics: The U.S. Approach to Procurement Integrity & Anti-Corruption ABA Section of International Law & Practice Brussels, Belgium September.
NAVAIR Patuxent River Services Contracting February 2008 Pam Gray.
1 Timothy Sullivan Thompson Coburn LLP 1909 K Street, N.W., Suite 600 Washington, DC (202)
Regulation Highlights Kimberly Heifetz May 15, 2012.
Update on Procurement- Related Cases Kym Nucci May 15, 2012.
US Army Corps of Engineers BUILDING STRONG ® Thumbs Off the Scales: Identifying and Addressing Organizational Conflicts of Interest in Today’s Acquisition.
Contract Formation and Source Selection Tim Sullivan.
City of Chicago Board of Ethics “The Revolving Door” 740 North Sedgwick, Suite 500 Chicago, IL
December 8–9, 2003 Sheraton Premiere, Tysons Corner, VA NCMA 22nd Annual East Coast Educational Conference Understanding Competition, Enhancing Small.
Slide 1 of 54 © Jerome Gabig Federal Bar Symposium Jerry Gabig (Moderator) Professor Ralph Nash Russ McMurry (Boeing) Jennifer Brinkley (QinetiQ)
1 Changes to Regulations Governing Personal Conflicts of Interest and Organizational Conflicts of Interest Breakout Session # C08 Name: Barbara S. Kinosky,
Making the Most of Your Debriefing
POST GOVERNMENT SERVICE EMPLOYMENT RESTRICTIONS
Post Government Service Employment Restriction Counseling (18 U. S. C
POST GOVERNMENT SERVICE EMPLOYMENT RESTRICTIONS
NEW YORK STATE ETHICS LAW
DHA Industry Exchange November 8-9, 2018
Ethics Issues in Contracting Naval Acquisition Development Program 2016 Annual Symposium March 24, 2016 Tom Frankfurt Assistant General Counsel (Research,
Post Government Service Employment Restriction Counseling
Conflict of Interest FDP TRAINING FOR [YOUR ORGANIZATION]:
Conflict of Interest FDP TRAINING: Organizational Conflict of Interest
Post-Government Service Employment Restriction Counseling
S AMCOM EXPRESS INDUSTRY DAY
Presentation transcript:

Ethics Issues in Contracting Naval Acquisition Development Program 2016 Annual Symposium March 24, 2016 Tom Frankfurt Assistant General Counsel (Research, Development, & Acquisition) 1

Topics Organizational Conflicts of Interest Communications with Industry Personal Conflict Competition 2

Organizational Conflicts of Interest What is an OCI?  Contractor has two or more contracts that have competing interests with each other.  FAR Definition — because of other activities or relationships with other persons,  a person is unable or potentially unable to render impartial assistance or advice to the Government,  the person’s objectivity in performing the contract work is or might be otherwise impaired,  a person has an unfair competitive advantage. 3

Reasons for OCIs Government’s Reliance on Contractors Consolidation of the Defense Industry Multiple Award IDIQ Contracts Broadly scoped Statements of Work 4

Three Types of OCIs Biased Ground Rules Impaired Objectivity Unequal Access to Information 5

Bias Ground Rules Contractor in performing one government contract sets the ground rules for another government contract  SSR Engineers, Inc., B , 99-2, CPD ¶27 (June 18, 1999) (SSR’s work under a 1996 A&E contract to develop a plan and cost estimate to upgrade the electrical system at Kessler AFB was used as a SOW and the government estimate for a 1999 procurement to perform the upgrade work. GAO denied the protest and held that Contracting Officer properly excluded SSR from the 1999 procurement because of an OCI) 6

Impaired Objectivity Contractor’s work under one government contract involves evaluating its own work or the work of an affiliate under another contract  Johnson Controls World Services, Inc., B , Feb. 13, 2001, 2001 CPD ¶ 20 (GAO found an OCI where a firm would be required to perform installation support services on one hand, and evaluate the efficiency of those services on the other) 7

Unequal Access to Information Contractor’s access to non-public information gives it an unfair advantage in a future competition  VRC, Inc., B , Nov. 2, 2007, 2007 CPD ¶ 202.  Protest denied; GAO found that Contracting Officer properly disqualified incumbent contractor (protester) from a personnel services procurement on grounds that incumbent contractor had “unequal access to information”  Contracting Officer reasonably found that OCI existed based on fact that individual employed by company : Had ownership ties to subcontractor on incumbent contract Was assigned to assist contracting officer with this procurement Had direct access to source selection information Was expected to assist evaluators with evaluating competing offers. 8

Contractor Mitigation Plans Purpose  Implement procedures to prevent the release of proprietary or procurement sensitive information  Preserve contractor’s right to participate in present and future competitions associated with the proprietary of procurement sensitive information  Bind the Corporation Useful for Unequal Access to Information OCIs Not useful for “biased ground rules” and “impaired objectivity” OCIs Non-disclosure agreements (NDAs)   Bind the individual contractor employees 9

Navy and Marine Corps Policy Encourages Communications with Industry DEPSECDEF Memo, Policy for Communication with Industry (June 21, 2010) OFPP, Policy Memorandum, “Myth-Busting”: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process (February 2, 2011) Under Secretary of the Navy Memo, Communication with Industry, (May 4, 2011) VCNO, Ethics Guidance: Communications with Industry (November 14, 2011) OFPP, “Myth-Busting 2”: Addressing Misconceptions and Further Improving Communication During the Acquisition Process (May 7, 2012) 10

Navy and Marine Corps Best Practices for Communicating with Industry Consult with OGC counsel to address business issues relating to acquisition integrity and unfair competitive advantage Publicize planned meetings – openness and transparency Prefer group settings to one-on-one meetings or interviews ― but one-on-one meetings are not discouraged Require read-aheads of planned discussion topics Require an Agenda: define in advance the topics that are off-limits Identify acquisition issues: industry representative notifies, in advance, all current contracts or proposals pending before DoD 11

When Should Communications with Industry End? After the Draft RFP is issued? After the RFP is issued? After receipt of proposals? 12

One-on-One Meetings Not Prohibited What about... –preferential treatment? –organizational conflict of interest? –proprietary data? 13

What Information Cannot be Communicated with Industry? Proprietary data Source Selection Information  Cost proposal  Technical proposals  Source selection plans  Technical evaluation  Cost evaluation  Competitive range determinations  Ranking of proposals  SSEB, SSAC, SSA reports  Any other information that would jeopardize the integrity of the procurement as determined by the contracting officer 14

Penalties For Government Employees Trade Secrets Act 18 U.S.C. §1905  Criminal statute that prohibits Government employees from releasing proprietary data; carries penalties of up to one year in jail or fines or both; and losing your job Procurement Integrity Act, 41 USC § 2105  Government employee that exchanges SSI for anything of value or to obtain or give a person a competitive advantage in the award of a Federal agency procurement contract carries a criminal penalty of up to 5 years in jail or fines or both 15

Post-Employment Restrictions 18 USC § 207 Applies to former Government personnel and carries a penalty of up to 5 years in jail and fines Contractors could be subject to administrative actions (e.g., suspensions and debarments) and criminal prosecution (e.g., conspiracy) 16

Post-Employment Restrictions 18 USC § 207 ― Lifetime Ban Former Government employees have a Lifetime communication and appearance ban to represent someone else to the Government on a “particular matter” that they worked on while in Government service Communication includes – –Phone call –Texting –Faxing Appearance ban may include mere physical presence 17

Post-Employment Restrictions 18 USC § 207 ― Two-Year Ban Former Government employees have a Two-Year communication and appearance ban to represent someone else to the Government on a “particular matter” in which the employee knows or reasonably should know was actually pending under his Official Responsibility within the one-year period prior to the termination of Government service 18

Post-Employment Restrictions 18 USC § 207 ― Senior Officials Former Senior Officials (Senior Executive Service, Admirals, General Officers) have a One-Year “cooling off” communication and appearance ban with former agency Includes any communication and any appearance on any matter 19

Procurement Integrity Act 41 USC § 2104 Former procurement officials have a one-year ban on compensation with a contractor who wins a contract award of more than $10M Procurement officials include: –Procuring Contracting Officer –Source Selection Authority –Member of the Source Selection Evaluation Board –Chief of Financial/Technical Evaluation Team –Program Manager/Deputy Program Manager –Administrative Contracting Officer; or –Decision-Maker Regarding (award, overhead rates, subcontracts, payments, and settlements) 20

Personal Conflict KAR Contracting, LLC, B , Dec. 19, Protests denied and VA contracting officer reasonably found protester was ineligible for award of two construction projects on the grounds that award to protester would create the appearance of an impropriety; protester’s owner had served as the COTR on both projects during design and had helped prepare the drawings while a government employee.  Where there is an apparent conflict of interest, an agency may exclude an offeror from a procurement to protect the integrity of the procurement system, even if no actual impropriety can be shown, provided that the agency’s determination is based on fact and not mere innuendo and suspicion  Post-employment restrictions of 18 U.S.C. § 207 do not set outer boundaries for a CO’s reasonable exercise of discretion about whether the award of a contract will create the appearance of impropriety. Even if there would be no violation of the post-employment restrictions, that would not mean there was no reasonable basis for concluding that offeror was ineligible for award 21

Competition 22

QUESTIONS? 23