Both Peter Eyre and James Peyster contributed to this blog post.
At 1:00 pm (Eastern) on March 7, 2013, Crowell & Moring attorneys Peter Eyre and James Peyster will conduct a webinar on behalf of L2 Federal Resources entitled "Organizational Conflicts of Interest (OCIs) and Personal Conflicts of Interest (PCIs): New and Pending Rules." This 90-minute webinar will provide an overview of key principles of conflicts of interest old and new, including a review of the personal conflict of interest rules which took effect on December 2, 2011 and a preview of the pending changes to the rules for addressing organizational conflicts of interest. Having established the regulatory framework, the webinar will also provide best practice tips for identifying, avoiding, mitigating, and managing actual or potential conflicts of interest so that the government becomes your ally in the process, rather than your adversary.
Further details and registration information are available at http://l2federalresources.com/2013/organizational-conflicts-of-interest-ocis-and-personal-conflicts-of-interest-pcis-new-and-pending-rules/.
L2 Federal Resources requires a registration fee for its webinars.
Both Peter Eyre and James Peyster contributed to this blog post.
Government contractors will be facing a harsh budgetary and regulatory climate in 2013. With shrinking budgets and expanding compliance requirements, government contractors will have numerous developments to watch. Please join us for a special free webinar on January 16, 2013 at 2:00 EST. The Crowell & Moring team will discuss likely trends and issues in terminations, DCAA business systems reviews, Contract Disputes Act litigation, bid protests, ERISA and employee benefits, compliance matters, domestic preferences, export control, suspension and debarment, cloud computing, False Claims Act enforcement, intellectual property, and many other areas. Presenters include some of the most experienced attorneys in the field, and we hope you can join us.
On July 29, 2012, the government launched the System for Award Management, known as SAM, which consolidated the Central Contractor Registration (CCR), the Online Representations and Certifications Application (ORCA), and the Excluded Parties List System (EPLS). CCR and ORCA are no longer accepting new or updated submissions, so contractors may be particularly interested in exploring the SAM User’s Guide to learn how to submit and revise information in this new system.
Not only does SAM look very different than CCR and ORCA, but the integration of multiple systems is going to take some getting used to. Contractors should not wait until the renewal deadline to learn how to use the system. This migration from CCR and ORCA to a single system may also provide contractors with an opportunity to examine its approach to these disclosures. Key questions include: Does my company have more registrations than it needs? Can I consolidate registrations? What steps is my company taking before making certifications that, if inaccurate, can lead to suspension, violations of the civil False Claims Act, or worse? How is my company coordinating submissions on an enterprise level to ensure consistency and accuracy?
On Thursday, January 19, 2012, from 2:00 - 3:30 pm EST, please join us for this webinar, "What Will the New Year Bring for Government Contractors? Top Headlines, Headaches, and Legal Developments to Watch in 2012.” As we begin the new year, government contractors are facing significant unknowns that could have a direct impact on the bottom-line:
- How will the continuing budget pressures impact contractors? Will we see more terminations because of these budget realities? How will the shrinking procurement budget impact the number of protests? Will there be more in-sourcing?
- Will the recent uptick in investigations continue? How about suspension and debarment activity?
- Will the SBA crackdown on enforcement continue to impact teaming relationships with small businesses?
- How will the presidential election influence the climate for government contractors? What will the vacancy at OFPP mean for contractors?
- How should contractors prepare for potential revisions to OFCCP’s affirmative action and nondiscrimination obligations regarding veterans and individuals with disabilities? What can contractors expect in an audit under OFCCP’s proposed revised scheduling letter and how should they prepare?
- What do the new personal conflict of interest regulations mean for your company?
- How has the treatment of technical data for major systems changed?
Join Crowell & Moring’s team of government contracts attorneys for a special free webinar that examines the answers to these questions and many more. Our team invites you to participate in a discussion of what we believe are likely to be many of the key issues facing government contractors in 2012, including topics such as terminations, suspension & debarment, bid protests, conflicts of interest, data rights, OFCCP, grants, compliance & ethics, international, small business, cyber security, and procurement fraud. The presenters include some of the most experienced attorneys in the field, and we hope you can make it.
Please click here to register for this free event.
On January 3, 2012, the FAR Council issued a final rule to implement a congressional mandate that the public have access to all information (excluding past performance reviews) in the Federal Awardee Performance and Integrity Information System ("FAPIIS"). FAPIIS was created in 2010 as a one-stop shop for contracting officers to review information about contractors' business ethics, integrity, and performance.
In response to concerns raised about the disclosure of a contractor's proprietary and confidential information, the final rule added an immediately effective requirement that contractors be given a seven-calendar-day review period to object to the public release of information on the grounds that such information is exempt from disclosure under FOIA. If a contractor objects, the information will be removed by the Government and the issue will be resolved in accordance with agency FOIA procedures. If there is no objection, the entry will be automatically released to the public part of the FAPIIS site within 14 calendar days after the review period began.
In Case You Missed Our Webinar About Personal Conflicts Of Interest And The New FAR Clause 52.203-16
On November 16, hundreds of government contractors joined us for a webinar about the new personal conflicts of interest (“PCI”) requirements and the new implementing FAR provision, 52.203-16. It was a lively discussion and we explored some of the questions and challenges relating to this new requirement. In case you missed it, a recording of the webinar is now available in its entirety, along with a copy of the presentation. Hope you enjoy it.
On September 16, 2011, DoD issued a final rule that requires contractors to prominently display fraud hotline posters prepared by the DoD Office of the Inspector General. These posters must be displayed in common work areas within business segments performing work on DoD contracts. The current posters from the DoD IG can be found here and here.
This requirement to display posters applies, unless the contract is for the acquisition of a commercial item, will be performed entirely outside the United States, or does not exceed $5 million. In addition, this requirement must be flowed down to all subcontracts that similarly qualify.
Some government contractors are concerned that this final rule will undermine the role that company hotline posters have in internal contractor compliance and ethics programs. For many in the industry, these company programs have a proven track record of indentifying and addressing improper conduct. There is a concern that the mandatory use of the DoD IG hotline posters may usurp the company’s position as the first line of defense against waste and fraud as well as health and safety issues and, instead, place the DoD IG in that role.
On September 13, 2011, the Office of Government Ethics proposed amendments to the regulation governing the acceptance of gifts by executive branch employees. The purpose of the amendments is to (a) implement the lobbyist gift ban already applicable, by Executive Order of the President, to most political appointees; and (b) impose limits on the use of gift exceptions by all executive branch employees (not merely political appointees).
The proposed rule would render existing exceptions to the gift restrictions inapplicable when the gift giver is both a prohibited source (e.g., a person doing business with the employee’s agency) and a lobbyist or lobbying organization, thus limiting the use of exceptions such as the $20 de minimis exception, the widely attended gathering exception, the social invitation exception, and the exception for meals, refreshments, and entertainment from private entities in a foreign area. Under the proposed amendments, viable exceptions to the gift restrictions would include: gifts based on a personal relationship, discounts and similar benefits, gifts resulting from a spouse’s business or employment, customary gifts provided by prospective employers, gifts authorized by an OGE-approved supplemental regulation, gifts accepted under specific statutory authority, awards and honorary degrees, gifts resulting from an employee’s outside business or employment, and for certain benefits in connection with permissible political activities.
Written comments must be received by OGE before November 14, 2011.
On May 16, 2011, GSA published a Notice to clarify whether information contractors input into the Federal Awardee Performance and Integrity Information System (“FAPIIS”) is exempt from disclosure under the Freedom of Information Act (“FOIA”). Presumably this Notice was prompted by a recent flood of FOIA requests. In essence, the Notice provides that Information posted on or after April 15, 2011 will be available to the public and not exempt from disclosure. But any information entered before April 15, 2011, is exempt from disclosure under b(4).
On April 26, 2011, the government issued a proposed rule governing organizational conflicts of interest. This proposed rule diverges substantially from the current framework in FAR 9.5, from the DFARS rule proposed last year, and from certain aspects of decades of decisional law from GAO and the Court of Federal Claims. Please click here for our summary of the FAR proposal.
There are four differences that are particularly interesting:
- Analysis Of Risk. The proposed FAR provision asserts that there are two kinds of risk that can flow from OCIs – (i) harm to the integrity of the competitive acquisition system and (ii) harm to the government’s business interests. The proposed rule sets forth different treatment based on that distinction.
- Acceptance Of Risk Of Harm To Government Business Interests. In circumstances where the OCI harms the competitive acquisition system, the OCI must be substantially reduced, eliminated, or waived. However, in contrast, the FAR Councils’ proposal provides that the risk of harm to the government’s business interests may sometimes be assessed as an acceptable performance risk and further action may not be necessary to address the conflict.
- Recognition Of Corporate Structural Barriers And Internal Controls. The proposed FAR provision recognizes that corporate structural barriers – such as independent boards of directors – may, in some circumstances, constitute sufficient mitigation.
- Removal Of Unequal Access To Nonpublic Information From The OCI Framework. The proposed FAR provision removes the concept of unequal access to nonpublic information from the definition of OCIs, and treats it separately under FAR Part 4.
In addition, the government has asked industry to focus on specific issues in formulating comments (which are due on or before June 27, 2011), including:
- Is the definition of “organizational conflict of interest” sufficiently comprehensive to address all potential forms of such conflicts?
- Do the enumerated techniques for addressing OCIs adequately address the Government’s interests? Are any too weak or overbroad? Are there other techniques that should be addressed?
- Do the proposed solicitation provisions and contract clauses adequately implement the policy framework set forth in the proposed rule? For example, is a clause limiting future contracting an operationally feasible means of resolving a conflict? Would it be beneficial and appropriate for this information generally to be made publicly available, such as through a notice on FedBizOpps? Do the solicitation provisions and contract clauses afford sufficient flexibility to help an agency meet its individual needs regarding a prospective or actual conflict?
- Does the proposed rule strike the right balance between providing detailed guidance for contracting officers and allowing appropriate flexibility for dealing with the variety of forms that organizational conflicts of interest take and the variety of circumstances under which they arise?
- Are there certain types of contracts, or contracts for certain types of services, that warrant coverage that is more strict than that provided by the proposed rule?