Breakout Session # 1009 Alan Dickson, Esq., Shareholder and Member of Government Contracts & Technology Practice

2. Organizational Conflicts of Interest – Practical Tactics Breakout Session # 1009 Alan Dickson, Esq., Shareholder and Member of Government Contracts & Technology Practice Epstein, Becker & Green, P.C. [ L. A. Office ] Date: 27 April 2005 Time: 1:20 PM NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

3. Recurrent Practical Issues • Sudden Exclusions at Source Selection ? • Creating / Using Mitigation Plans • Protection of Sensitive Data • Proper Roles for White Hat Contractors • Contesting OCI and Mitigation Plan Issues NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

4. Mitigation Plans • Before / after source selection • Can also be an evaluation factor • Many varieties of plans • Must be duly considered by Govt in source selections; see Informatics Corp. v. U.S., 40 Fed. Cl. 508 (1998). NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

5. Government Agency Concerns on OCI and Related Issues Breakout Session # 1009 Andre Long, Esq., Associate Counsel Navy Office of General Counsel Naval Air Warfare Center, China Lake, CA** Date: 27 April 2005 Time: 1:20 PM ** [Views are personal; not those of Navy or U.S. Government] NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

6. Safeguarding proprietary / sensitive / nonpublic information by Govt: • Contractor employees are not covered by same laws and regulations • Government personnel are subject to many restrictions NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

7. Restrictions include: • Procurement Integrity Act (41 USC 423) • Trade Secrets Act (18 USC 1905) • Use of Non-Public Information (Joint Ethics Regs 5 CFR 2635.703) • FAR subpart 9.5 NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

8. Govt / Contractor Co- Location Issues • Can blur public/private sector distinction • Can lead to inadvertent disclosures • Could be addressed by OCI mitigation plans and/or by Govt agency practices NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

9. Meetings and Gatherings • Who are attendees? • Will there be discussion of CPAR, proprietary or source selection data? • Financial disclosures necessary to determine conflicts? • Nondisclosure agreements or OCI mitigation plans necessary? • Has prior notice been provided to affected parties? NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

10. Lessening co-location risks: • Distinct badging • Marking of office spaces • Separate email address identifiers • Phone identification • Business card identification NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

11. Before giving access to non-public information, Government employees should ask: • (1) Do you have the legal right to do so? • (2) Do you need permission to do so? • (3) Is the purpose of using it within the scope of the contract? NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

12. Govt Questions, cont’d: • (4) Is there a need to know? • (5) Has contractor promised not to further disclose? • in the contract • by separate agreement • as part of mitigation plan NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

13. Organizational Conflicts of Interest Breakout Session # 1009 John H. Young Vice President, Corporate Contracts and Pricing Northrop Grumman Corporation April 27, 2005 1:20 PM NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

14. Our Changing Environment • Defense Industry Developments Have Impacted the Ability of Industry and Government to Protect Information • Industry Consolidation • Fewer Prime Contractors Competing for Major Systems • Increased Teaming Between Competitors in Order to Meet USG Requirements • Concurrent Prime & Subcontractor Roles Between Competitors • Company Business Units Acting as Merchant Suppliers • Sometimes to Sister Divisions and Competitors of Sister Divisions for the Same Acquisition NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

15. Our Changing Environment (cont.) • Recent Incidents Have Led to: • Customers Expressing Concerns Over Ability of Companies to Protect Proprietary and Competition Sensitive Information • Unintentional Disclosures • Improper Use • Increased Emphasis on Corporate Governance and Procurement Integrity Requirements • Congress Still Deliberating Some Rule Changes • Some Customers Revising and Implementing More Stringent OCI Policies NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

16. Firewalls Mitigate OCIs (Per FAR 9.5):Firewall Purpose • To Ensure Proprietary or Competition Sensitive Information Developed By Another Company or Entrusted to the Company Is Not Used to: • Realize an Unfair Competitive Advantage • Unlawfully Impair Competition • Circumvent Specific Obligations Undertaken by the Company Concept is SimpleImplementation Complexities Significant! NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

17. BU1 BU2 BU3 BU4 BU5 BU6 BU7 4 2 1 3 5 1 3 2 25 2 5 2 4 6 4 1 Consent Decrees Gov’t Requirements to Ensure Competition Internal Implemented By Business Units (BU)Voluntarily Company to Company Agreements/Contracts Contracts, Subcontracts, MOUs, MOAs, Teaming Agreements Gov’t Non-OCI Gov’t Concerns About Access To Competitive Information Gov’t OCI Mitigation Where Contractor Is Both Supplier and Evaluator Industry’s Challenge: NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

18. Management Support Services Consultant or Other Professional Services Contractor Performance of or Assistance in Technical Evaluations Systems Engineering and Technical Assistance (SETA) Work Performed by a Contractor That Does Not Have Overall Contractual Responsibility for Development or Production Where OCIs Are More Likely to Occur NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

19. Common OCI Mitigation Approaches • Non-Disclosure Agreements • Controlled access to sensitive information • Establishment of an employee OCI awareness and compliance program • Physical separation of employees working on OCI effort • Organizational separation • Limitation on personnel transfers • Separate SETA Work (Contractor) From Decision Making Responsibilities (Government) NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

20. DCMA GSA We All Have A Personal Responsibility In This Changing Environment FBI IR$ CIA DCAA NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

21. OCI Issues in the Bid Protest Context Breakout Session # 1009 Kenneth B. Weckstein, Esq. Shareholder and Chair, Government Contracts & Technology Practice, Epstein Becker & Green, P.C. [ D.C. Office ] April 27, 2005 1:20 PM NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

22. Greater Focus on OCIs in Protests • Recognizing Potential Issues • Does a competitor have an OCI? • Does your company have one? • In both cases, what can be done? • Available Remedies / Procedures at GAO and COFC / Recent Decisions NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

23. OCI – Related Protests • Mitigation Plans • Proposing Plan • Attacking Plan • Defending Plan • Developing Record of Agency Consideration or Non-Consideration of Plan NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”