These comments are submitted by Susan E. McClain, Contracting Officer, Sylvia
N. Small, Contracting Officer, Michael I. Mark, Counsel and Neil J. O’Connor,
Aerospace Engineer in our personal capacity and are based upon our personal
experiences at NASA Langley Research Center, Hampton, Va. These comments
represent our personal views and do not represent the views of NASA or NASA
Langley Research Center.
Like many other government agencies, NASA Langley Research Center (LaRC)
relies heavily on contractors and contractor employees to fulfill its mission.
Contractors at LaRC provide support in all areas – from designing the
Constellation Launch Abort system, performing sophisticated tests in wind
tunnels, to cutting the grass. While the federal government’s reliance on
contractors has increased, the number of available contractors continues to
decrease through acquisitions and mergers. Additionally, most agencies utilize
broad based indefinite delivery, indefinite quantity type contracts where the work is
not fully defined until the issuance of a task – making it difficult to identify
potential organizational conflicts of interest at the contract level. These three
events have directly resulted in a rise in organizational conflict of interests. We at
LaRC have recently faced numerous and wide ranging organizational conflict of
interest situations.
The Technology, Engineering & Aerospace Mission Support (TEAMS) contract is
the largest engineering services contract at the LaRC and second largest overall
contract. TEAMS is a five year contract with a maximum value of $200 million
which supports virtually all of the mission and mission support offices at LaRC, as
well as the NASA Independent Program Assessment Office and the NASA
Engineering and Safety Center. TEAMS contractors routinely participate in all
aspects of LaRC’s research, engineering, and mission support. As such, it is one
of the most important contracts at NASA LaRC.
Within several months of the contract start, Alliant Techsystems, Inc. (ATK)
announced its intentions to purchase the TEAMS Prime Contractor Swales,
closing the deal on June 8, 2007. Since ATK was already a significant prime and
sub contractor to NASA, this merger presented significant potential Organizational
Conflicts of Interest (OCIs) in the performance of tasks under the TEAMS
contract. Further, this purchase brought into question the contractor's ability to
properly provide independent engineering services. In response, the LaRC Office of
Procurement immediately convened a small tiger team to investigate the
implications of this purchase.
The team reviewed 97 active task orders and found that the OCIs between
ATK/Swales’ interests and LaRC requirements are concentrated in specific areas
based upon its efforts/position in the industry; (e.g., hypersonics, Constellation,
propulsion). These intersections between ATK/Swales and LaRC cross through
virtually all of LaRC’s organizations. These OCIs cover all 3 potential OCIs
identified by case law: Biased Ground Rules; Unequal Access to Information and
Impaired Objectivity. Many task orders presented all 3 potential OCIs. The team
took immediate mitigation action on several tasks, including moving work off of the
TEAMS contract. However, the OCIs on most tasks were mitigated through
firewalls and limitations on access to data.
Finally, the team negotiated a modification to the contract that strengthened the
OCI provisions in the contract, established a formal procedure for performing an
OCI review of each new task, and put in place a quarterly meeting between LaRC
and Swales to review upcoming actions, current contracts and subcontracts, and
current pursuits. This review gives both parties insight into planned projects and
allow for mitigation of potential OCIs. We have also provided training to our
Contracting Officer Technical Representatives and other technical staff on OCIs.
A copy of the review process (Attachment 2), revised TEAMS OCI language
(Attachment 3), and training materials (Attachment 4) are provided.
NASA LaRC is in the process of competing an alternative contract vehicle to
provide an OCI free source for work that presents an unacceptable risk of OCI. A
stringent OCI clause has been drafted to ensure the contractor’s independence
and freedom from potential OCIs. A copy of this clause is included at Attachment
5.
NASA LaRC is also in the process of negotiating an agreement to support the
NASA Independent Program Assessment Office in providing independent analysis
and assessments of current and future NASA programs and projects. Because of
the criticality of receiving true independent assessments, the agreement requires
the submission of a “Certificate of Independent Assessment” for each new effort.
A copy of this clause is included at Attachment 1.
Based upon our experiences, we strongly believe that additional coverage on OCIs
is needed in the FAR. The current guidance is extremely dated and does not
reflect new case law or the new basic classifications of OCI. The examples are
also dated and do not reflect current practices. The FAR currently does not
contain a clause for OCIs. While a one size fits all clause may not be
appropriate, a clause for use “substantially the same as” would be extremely
useful. Also, the FAR does not address contract management of an OCI. As
we’ve experienced, you may not be able to identify all potential OCIs even at
contract placement, and the FAR does not provide any guidance on continued
monitoring of, or good contract administration practices, for contracts with OCIs or
potential OCIs.
We believe that there should be a government wide database of OCI clauses that
would be available to Contracting Officers as a source of potential language as
well as a potential learning tool. Currently, there is no way of sharing OCI
experiences and successful and unsuccessful mitigation strategies.
We strongly believe that expanded FAR coverage on OCIs would enhance the
integrity of the Government’s decision making processes. The cost of an OCI can
be high as demonstrated by the NASA’s recent experience with the Mars
Discovery program which resulted in a 2 year delay in the mission and substantial
costs.
Attachment 1 – IPAO organizational conflict of interest clause
Attachment 2 – TEAMS OCI Process Review document
Attachment 3 - TEAMS OCI language
Attachment 4 - OCI Training Materials
Attachment 5 - LASER organizational conflict of interest clause
Attachments:
Comment #3, FAR Case 2007-018, Organizational Conclicts of Intrest
Title: Comment #3, FAR Case 2007-018, Organizational Conclicts of Intrest
View Attachment:
comment #4, FAR Case 2007-018, Organizational Conflicts of Interest
Title: comment #4, FAR Case 2007-018, Organizational Conflicts of Interest
View Attachment:
Comment #5, FAR Case 2007-018, Organizational Conflicts of Interest
Title: Comment #5, FAR Case 2007-018, Organizational Conflicts of Interest
View Attachment:
Comment #6, FAR Case 2007-018, Organizational Conflicts of Interest
Title: Comment #6, FAR Case 2007-018, Organizational Conflicts of Interest
View Attachment:
Comment 7, FAR Case 2007-018, Organizational Conflicts of Interest
Title: Comment 7, FAR Case 2007-018, Organizational Conflicts of Interest
Cover Letter #3
This is comment on Proposed Rule
FAR Case 2007-018; Organizational Conflicts of Interest
View Comment
Attachments:
Comment #3, FAR Case 2007-018, Organizational Conclicts of Intrest
Title:
Comment #3, FAR Case 2007-018, Organizational Conclicts of Intrest
comment #4, FAR Case 2007-018, Organizational Conflicts of Interest
Title:
comment #4, FAR Case 2007-018, Organizational Conflicts of Interest
Comment #5, FAR Case 2007-018, Organizational Conflicts of Interest
Title:
Comment #5, FAR Case 2007-018, Organizational Conflicts of Interest
Comment #6, FAR Case 2007-018, Organizational Conflicts of Interest
Title:
Comment #6, FAR Case 2007-018, Organizational Conflicts of Interest
Comment 7, FAR Case 2007-018, Organizational Conflicts of Interest
Title:
Comment 7, FAR Case 2007-018, Organizational Conflicts of Interest
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