§ 909.570-14 - Examples.

(a) In development work it is normal to select firms which have done the most advanced work in the field. It is to be expected that these firms will design and develop around their own prior knowledge. Development contractors can frequently start production earlier and more knowledgeably than can firms which did not participate in the development, and this affects the time and quality of production, both of which are important to the Government. In many instances, the Government may have financed such development. Thus, the development contractor may have an unavoidable competitive advantage which is not considered unfair and no prohibition should be imposed.

(b) The following examples illustrate types of situations and relationships where organizational conflict of interest questions frequently arise, but they are not all-inclusive.

(1) Contractor A, in connection with the performance of a study contract, is given information by the Department regarding Department plans for future acquisitions. This information is not available to interested industrial firms. Guidance. Normally this would constitute an OCI and the contractor should not be permitted to compete with such firms for work relating to such plans.

(2) Company A, in response to a requests for proposals (RFP), proposes to undertake certain analyses of an energy savings device as called for in the RFP. The company is one of several companies considered to be technically well qualified. In response to the inquiry in the RFP, A advises that it is currently performing similar analyses for the manufacturer of the device. Guidance. Normally this would constitute an OCI and a contract for that particular work would not be awarded to Company A because it would be placed in a position in which its judgment could be biased in relationship to its work for the Department. Since there are other well qualified companies available, there would be no reason for granting a waiver of the policy.

(3) Accounting Firm A, in response to a requests for proposals (RFP), proposes to undertake an analysis of the profitability of one segment of the energy industry. The firm is one of several firms considered to be technically well qualified. In response to the inquiry in the RFP, A advises that it derives a substantial portion of its income from the industry to be studied. Guidance. Normally this would constitute an OCI and a contract would not be awarded to Firm A because it would be placed in a position in which its judgment could be biased in relationship it its work for the Department.

(4) Company A prepares updated Government specifications for a standard refrigerator to be procured competitively. Guidance. Normally this would constitute an OCI. The contract should have contained the OCI clause barring Company A from competing for supply of a refrigerator based upon the specification it prepared.

(5) Company A designs or develops new electronics equipment under a DOE contract and delivers descriptive specifications as part of the final report. DOE then issues a solicitation for procurement of that electronics equipment including a statement of work that reflects the descriptive specifications. Guidance. Normally this would not constitute an OCI. The contract should have contained the OCI clause barring the company from competing to supply the electronics equipment.

(6) A tool company and/or a machinery company representing the American Tool Institute works under the supervision and control of Government representatives to refine specifications or to clarify the requirements of a specific acquisition. Guidance. Normally this would constitute an OCI and these companies may not supply the item.

(7) Prior to acquisition of Automatic Data Processing (ADP) Equipment, Company A is awarded a contract to develop software to automate a DOE function. Guidance. This situation will turn on whether the software that was developed might have limited the potential source for the equipment. If the answer were yes, the contract should have contained the OCI clause barring competition for the equipment. However, if the software were not so limited, this would not constitute an OCI, and Company A would not be barred from at least the initial ADP hardware acquisition necessary to accommodate the software developed under its development contract.

(8) Company A receives a contract to define the detailed performance characteristics a Government agency will use in the purchase of rocket fuels. The company has not developed the particular fuels. At the time the contract is awarded, it is clear to both parties that the performance characteristics arrived at will be used by the Government agency to choose competitively a contractor to develop the fuels. Guidance. Normally this would constitute an OCI, and Company A shall not be permitted to bid on the acquisition to develop the fuels.

(9) Company A receives a contract to prepare a detailed plan for the acquisition of services aimed at the advanced scientific and engineering training of the Department's personnel. It produces a curriculum which the agency endorses and incorporates in a request for proposals to various institutions to establish and conduct such training. Guidance. Normally this would constitute an OCI and Company A shall not be permitted to bid on this acquisition.

(10) Consulting Firm A, in response to an RFP, proposes to undertake an evaluation of the environmental impacts of coal-fired powered plants as called for in the RFP. The company is one of several companies considered to be technically well qualified. In response to the inquiry in the RFP, A advices that it derives a substantial portion of its income from companies which manufacture nuclear power plants. Guidance. Normally this would constitute an OCI and a contract for that particular work would not be awarded to Firm A because it would be placed in a position in which its judgment could be biased in relationship to its work for the Department.

(11) Consulting Firm A derives a substantial portion of its income from Company B in connection with the study of natural gas production. Company B is also heavily involved with motor gasoline marketing. A discloses these facts in response to an RFP for a study of motor gasoline marketing. Guidance. Normally this would constitute an OCI, and a contract for the study of motor gasoline marketing would not be awarded to Firm A because it would be placed in a position in which its judgment could be biased in relation to its work for the Department.

(12) Firm A, because of its unique technical expertise, has been requested to assist the Department in the evaluation of proposals which will result from a competitive solicitation. Firm A also plans to submit a proposal in response to this same solicitation. Guidance. Normally this would constitute a conflict, and Firm A should be precluded from participating in the solicitation. In a particular case, it may be desirable (e.g., when the competitive field is limited) to allow a separate division or affiliate of Firm A to submit a proposal. In such a case, of course, Firm A must obtain a waiver from the Department of Energy contracting officer and would not be permitted to participate in the evaluation of this proposal. Such evaluation would be performed by DOE or another DOE contractor.