« PreviousContinue »
exists, one of the following actions shall ultimately be taken:
(1) Terminate the contract, or, in the case of a task order contract, terminate the particular task;
(ii) Insist on appropriate contract terms and conditions which avoid the OCIS, in which case no waiver is required; or
(iii) Make a finding that it is in the best interests of the Government to permit the contractor to continue to perform the contract (or task) under the waiver provisions of $1706.8, and, where reasonably possible, insist on appropriate contract terms and conditions or take other measures which mitigate the OCIS.
(c) Task order contracts. (1) Because a task order contract generally entails a broad scope of work, apparent successful offerors shall be required to identify in their certificates filed in accordance with $1706.6 any actual or potental OCIS that come within the full scope of the contract. The Board may decline to award a task order contract to an offeror based upon such information or it may decline to approve performance of a particular task by the contractor if an actual or potential OCI is subsequently identified with respect to that particular task. The Board may also take the other actions identified in $1706.7(a) to avoid or mitigate such conflicts.
(2) Contractors performing task order contracts for the Board shall disclose to the contracting officer any new work for others hey propose to undertake that may present an actual or potential OCI with regard to the performance of any work under the full scope of the Board contract. Such disclosure shall be made at least 15 days prior to the submission of a bid or proposal for the new work. The disclosure shall include the statement of work and any other information necessary to describe fully the proposed work and contemplated relationship.
(3) If the Board has issued a task order or a letter request for proposal under the contract with a contractor who has disclosed to the contracting officer that it proposes to undertake new work for persons other than the Board as described in $1706.7(c)(2), for services in the same technical area
and/or at the same defense nuclear facility that is the subject of the pro posed new work (including overlap based upon generic work performed for others by the contractor), the Board shall inform the contractor that entering into a contract for the new work may result in termination by the Board of the task order contract, if the Board determines that such work would give rise to an OCI and the Board does not grant a waiver.
(d) Decisions on OCIs. The contracting officer shall make recommendations to the General manager regarding disqualification or actions to be taken by the Board to avoid or mitigate any actual or potential OCI.
(1) The General Manager shall have the authority to approve, modify, or disapprove such recommendations regarding avoidance of an actual or potential OCI. If an offeror or contractor disagrees with the actions approved by the General Manager and requests review of the action, the Chairman shall make the decision on the actions to be taken by the Board.
(2) Any recommended action respecting the best interests of the Government and mitigation measures to be taken with respect to an actual or potential OCI must be approved by the Chairman in conjunction with the decision to grant a waiver pursuant to 81706.8, and any recommended action to terminate a contract or a particular task on account of an actual or potential OCI must be approved by the Chairman.
(3) Decisions on OCIS by the General Manager or the Chairman shall be made with the advice of the Office of the General Counsel. (57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993)
(a) Waiver of OCIS. The need for a waiver of any OCI in connection with the award or continuation of specific contracts may be identified either by the contracting officer for the Board or other Board employee or by a written request filed by an offeror or contractor with the contracting officer. The request may be combined with the certificate or disclosure required under $$ 1706.6 or 1706.7, or with additional
statements filed under $1706.7 regard- (e) Federal Register. Except as othering matters raised in the certificate or wise provided in $1706.8(c), notice of disclosure. The contracting officer each waiver granted under this section shall review all of the relevant facts shall be published in the FEDERAL REGbrought to his attention and shall ISTER with an explanation of the basis bring the matter to the General Man- for the waiver. In the discretion of the ager, who shall make a written rec- Board, notices of instances of avoidommendation to the Chairman of the ance of OCIS may also be published in Board regarding whether waiver the FEDERAL REGISTER. should be granted for a contract award or for continuation of an existing con
$ 1706.9 Examples. tract.
The examples in this section illus(b) Criteria for Waiver of OCIS. (1) The trate situations in which questions Chairman is authorized to waive any concerning OCIS may arise. The examOCI (and the corresponding provision of ples are not all inclusive, but are in$1706.5 where applicable) upon a deter- tended to provide offerors and contracmination that awarding or extending tors with guidance on how this subpart the particular contract, or not termi- will be applied. nating the particular contract, would (a) Circumstances (1) Facts. A Board be in the best interests of the Govern- contractor for technical assistance in ment. Issuance of a waiver shall ordi- the review of a safety aspect of a parnarily be limited to those situations in ticular defense nuclear facility prowhich:
poses to use the services of an expert (1) The work to be performed under who also serves on an oversight comcontract is vital to the Board program; mittee for a contractor of other defense
(11) The work cannot be satisfactorily nuclear facilities. performed except by a contractor or (2) Guidance. Assuming the work of offeror whose interests give rise to a the oversight committee has no direct question of OCI; and
or indirect relationship with the work (iii) Contractual and/or technical re- at the facility that is the subject of the view and supervision methods can be Board's contract, there would not be an employed by the Board to mitigate the OCI associated with the use of this exconflict.
pert in the performance of the Board (2) The Chairman is also authorized contract. to waive any OCI (and the correspond- (b) Circumstances (1) Facts. A Board ing provision of $1706.5 where applica- contractor studying the potential for a ble), without regard to the foregoing chemical explosion in waste tanks at a factors, if the Chairman determines, defense nuclear facility advises the notwithstanding the existence of the Board that it has been offered a conOCI, that it is in best interests of the tract with DOE to study the chemical Government to award or extend the composition of the waste in the same particular contract, or not to termi- tanks. nate it, without compliance with (2) Guidance. The contractor would be $1706.8(b)(1).
advised that accepting the DOE con(c) Waiver of Rules of Procedures. The tract would result in termination of its Chairman is also authorized to waive performance under its contract with any rules or procedures contained in the Board. this part upon a determination that ap- (c) Circumstances (1) Facts. The plication of the rules or procedures in a Board issues a task order under an exparticular situation would not be in isting contract for the evaluation of the best interests of the Government. the adequacy of fire protection systems Any request for such a waiver must be at a defense nuclear facility. The conin writing and shall describe the basis tractor then advises the Board that it for the waiver.
is considering making an offer on a 80(d) Office of General Counsel. Waivers licitation by DOE to evaluate the same of OCIS or of any rule or procedure con- matter. tained in this part shall be made after (2) Guidance. The contractor would be consultation with the Office of General advised that entering into a contract Counsel.
with DOE on that solicitation could re
sult in the contract with the Board being terminated.
(d) Circumstances(1) Facts. A firm responding to a formal Board solicitation for technical assistance provides information regarding a contract it currently has with DOE. The effort under the DOE contract is for technical assistance work at DOE facilities not subject to Board oversight and outside its jurisdiction.
(2) Guidance. The Board would analyze the work being performed for DOE to ensure no potential or actual condict of interest would be created through award of the Board contract. Should the Board determine that no potential or actual conflict of interest exists, the contractor would be eligible for award. If the Board determines that a potential or actual conflict of interest would arise through a contract award, it may disqualify the firm or, if the Board determines that such action is in the best interests of the Government, the Board may waive the conflict or the rules and procedures and proceed with the award.
(e) Circumstances (1) Facts. The Board discovers that a firm competing for a contract has a number of existing agreements with DOE in technical areas which unrelated to the Board's oversight authority. While these contracts may not represent a potential or actual conflict of interest regarding the substance of the technical effort, their total value constitutes a significant portion of the firm's gross revenues.
(2) Guidance. A conflict of interest may exist due to the firm's substantial pecuniary dependence upon DOE. Consequently, the Board may question the likelihood that the contractor would provide unbiased opinions, conclusions, and work products because of this extensive financial relationship. The Board will review and consider the extent of the firm's financial dependence on DOE, the nature of the proposed Board contract, the need by the Board for the services and expertise to be provided by the firm and the availability of such services and expertise elsewhere, and whether the likelihood of the firm's providing objective technical evaluations and opinions to the Board could be influenced in view of its DOE
relationship. Based on this analysis, the Board may either determine that there is no conflict and make the award, waive the conflict if one is identified and establish procedures to mitigate it where possible, or disqualify the offeror.
(1) Circumstances (1) Facts. The Board discovers that a firm competing for a contract has a substantial business relationship in technical areas unrelated to the Board's oversight authority with a contractor operating a defense nuclear facility under a DOE contract. Similar to the situation described in paragraph (e) of this section, the total value of the contracts with the DOE contractor constitutes more than half of the firm's gross revenues, even though those contracts do not represent a potential or actual conflict of interest regarding any of the particular matters to be covered by the contract with the Board.
(2) Guidance. The firm's substantial financial and business dependence upon the DOE contractor may give rise to a conflict of interest, in that the likelihood of the firm's rendering impartial, objective assistance or advice to the Board may be impaired by its extensive financial relationship with the DOE contractor. In this situation, the Board will review and consider the nature of the proposed Board contract, the need by the Board for the services and expertise to be provided by the firm and the availability of such services and expertise elsewhere. The Board will also review and consider the extent of the firm's financial dependence on the DOE contractor and whether the firm would be impartial and objective in providing technical evaluation and opinions to the Board, especially on matters in which the DOE contractor is involved, notwithstanding the relationship with the DOE contractor. Based on this analysis, the Board may determine that there is no actual conflict of interest and make the award. Alternatively, if the Board identifies a conflict that cannot be avoided, the Board may determine to waive the conflict in the best interests of the United States, with or without the establishment of procedures to mitigate the
conflict, or it may disqualify the offeror. (57 FR 44662, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993)
The refusal to provide the certificate, or upon request of the contracting officer the additional written statement, required by $1706.6 and 1706.7 in connection with an award shall result in disqualification of the offeror for that award. The nondisclosure or misrepresentation of any relevant information may also result in the disqualification of the offeror for that award. If such nondisclosure or misrepresentation by an offeror or contractor is discovered or occurs after award, or in the event of breach of any of the restrictions contained in this part, the Board may terminate the contract for convenience or default, and the offeror or contractor may also be disqualified by the Board from consideration for subsequent Board contracts and be subject to such other remedial actions as provided by law or the contract. (57 FR 44662, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993)
(c) The certificate must contain the following:
(1) Name of the agency and the number of the solicitation in question.
(2) The name, address, telephone number, and federal taxpayer identification number of the offeror.
(3) A description of the nature of the services rendered by or to be rendered on the instant contract.
(4) The name, address, and telephone number of the client or clients, & description of the services rendered to the previous client(s), and the name of a responsible officer or employee of the offeror who is knowledgeable about the services rendered to each client, if, in the 12* months preceding the date of the certification, services were rendered to the Government or any other client (including a foreign government or person) respecting the same subject matter as the instant solicitation, or directly relating to such subject matter. The agency and contract number under which the services were rendered must also be included, if applicable.
(5) A statement that the person who signs the certificate has made inquiry and that, to the best of his or her knowledge and belief, no actual or potential conflict of interest or unfair competitive advantage exists with respect to the advisory or assistance services to be provided in connection with the instant contract, or that any actual or potential conflict of interest or unfair competitive advantage that does or may exist with respect to the contract in question has been communicated in writing to the contracting officer or his or her representative; and
(6) The signature, name, employer's name, address, and telephone number of the person who signed the certificate.
(d) Persons required to certify but who fail to do so may be determined to be nonresponsible. Misrepresentation of any fact may result in suspension or debarment, as well as penalties associated with false certifications or such other provisions provided for by law or regulation.
[End of provision) *If approved by the head of the contracting activity, this period may be increased up to 36 months.
81706.11 Organizational conflicts of
interest certificate Advisory or as
sistance services. As prescribed in or permitted by $1706.6(a), insert the following provision in Board solicitations:
ORGANIZATIONAL AND CONSULTANT CON
FLICTS OF INTEREST CERTIFICATE-
(OCT. 1990) (a) An organizational or consultant conflict of interest means that 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, or the person's objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.
(b) In order to comply with the Office of Federal Procurement Policy Letter 89_1, Conflict of Interest Policies Applicable to Consultants, the offeror shall provide the certificate described in paragraph (c) of this provision.
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Table of CFR Titles and Chapters