As we previously broke down in detail here, an Organization Conflict of Interest (OCI) exists when work performed on a federal contract leads to an unfair competitive advantage or impaired objectivity. Federal contractors must establish appropriate safeguards against OCI because a finding of OCI can lead to losing a contract or, worse, suspension or debarment from future federal work.
One of the more common issues that leads to OCI is unequal access to information. Unequal access to information can arise when a contractor has access to non-public information on a federal contract that later turns out to provide an unfair competitive advantage in future procurements.
But, what if you current hold a federal contract (or multiple federal contracts) where your business and employees routinely access such confidential data? Is it realistic (or even possible) to form a firewall between your business and the nuts and bolts of your federal work?
In a recent decision, the GAO considered a contractor's access to agency information obtained during its work as a subcontractor at the agency's program office. According to GAO, a contractor may possess unique information, advantages, and capabilities due to its prior experience under a government contract without qualifying as an OCI. The key is not allowing that incumbent contractor advantage to spill over into preferential treatment by the agency.
The responsibility to avoid an OCI based on preferential treatment falls on both the agency and the contractor. For example, the GAO notes that an agency can neutralize the appearance of unequal access by releasing information to all procurement offerors. For the contractor, internal safeguards should be in place to identify the possibility of OCI and – if not appropriately mitigated by the agency – disclosed in advance.
Constant vigilance is required to stay out in front of OCI issues and avoid the potentially devastating consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
