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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.

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slide2

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”

recurrent practical issues
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”

mitigation plans
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”

government agency concerns on oci and related issues
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”

safeguarding proprietary sensitive nonpublic information by govt
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”

restrictions include
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”

govt contractor co location issues
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”

meetings and gatherings
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”

lessening co location risks
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”

before giving access to non public information government employees should ask
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”

govt questions cont d
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”

slide13

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”

slide14

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”

our changing environment cont
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”

firewalls mitigate ocis per far 9 5 firewall purpose
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”

industry s challenge

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”

where ocis are more likely to occur
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”

common oci mitigation approaches
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”

slide20

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”

slide21

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”

greater focus on ocis in protests
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”

oci related protests
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”