Husch Blackwell

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Organizational Conflicts of Interest arise when a contractor’s work on one government contract gives it an unfair advantage in competing for a second contract or when it impairs the contractor’s ability to give impartial advice to the government.  Although FAR 9.5 offers general guidance on OCIs, GAO guidance on the issue is not currently reflected there.  In April 2010, the Defense Department proposed sweeping revisions to the DOD FAR Supplement to incorporate GAO caselaw addressing OCIs and to make it clear that the new OCI rules would apply to all DOD procurements. 75 Fed. Reg. 20954 (Apr. 22, 2010).  Final regulations were published December 29.  75 Fed. Reg. 81908 (Dec. 29, 2010).

On February 4, 2011, the U.S. Small Business Administration is set to launch its Women-Owned Small Business Program, which is intended to create a set-aside structure for WOSBs similar to the existing 8(a) platform.  The overall goal of the new program is to expand federal contracting opportunities for women-owned businesses within 83 different industries (identified by NAICS code) where WOSBs have traditionally been underrepresented.  Some of the eligibility requirements for participation in the WOSB program include: (1) the company must be “small” in its primary industry in accordance with SBA size standards; (2) the company must be at least 51 percent directly and unconditionally owned by one or more women; and (3) control and day-to-day management of the company must be in the hands of one or more women.

Congress recently passed legislation (Section 893 0f the National Defense Authorization Act of 2011) requiring the Secretary of Defense to develop a program ensuring that “contractor business systems” provide timely, reliable information for the management of Department of Defense programs.  “Contractor business systems” include accounting systems, estimating systems, earned value management systems, material management and accounting systems, and property management systems. 

The program required by this legislation will set requirements for contractor business systems, establish a process for reviewing contractor business systems, and provide for disapproval of any contractor business system that has a significant deficiency.  If a contractor business system is disapproved, DoD will work with the contractor to develop a corrective action plan.  Until the system is approved, DoD may withhold up to 10 percent of progress and other payments on cost type contracts with contractors that are covered by the Cost Accounting Standards.

The Percy Amendment gives American-owned bidders a ten percent price advantage when competing for State Department construction projects.  To qualify as American-owned, the statute requires evidence that the bidder has performed “similar construction work in the United States or at a United States diplomatic or consular establishment abroad.”  22 U.S.C. § 302(b)(4)(A).

The State Department regulation implementing the Percy Amendment does not allow for consideration of foreign construction experience.  It states that similar construction work must have been performed in the United States.  DOSAR 652.236-71.  This conflict was the subject of a recent bid protest decision in Perini Management Services, Inc., B-404261, et al. (December 17, 2010).