Peter J. Eyre

On December 29, 2010, DoD issued a final amendment to the Defense Federal Acquisition Regulation Supplement (“DFARS”) relating to organizational conflicts of interest (“OCI”) in major defense acquisition programs. The highlights of that rule are summarized here. One of the most interesting issues is what the rule does NOT cover.

The final rule is significantly narrower than the approach that DoD had outlined in April, 2010, when it issued a proposed rule. The proposed rule set forth a comprehensive approach, which would have been applicable to virtually all DoD procurements. DoD explained that finalizing the comprehensive approach in the proposed rule would have caused delay and possible confusion, and decided to limit the final rule. The proposed rule raised some important issues that have been left open to be dealt with in a proposed OCI rule to be issued by the FAR Council that will be effective government-wide and is expected to be issued soon. Examples of these issues include:

• Definition of OCIs
• Types of OCIs
• Required timing of OCI analysis
• Disclosure of information from offerors to assist contracting officers in identifying OCIs
• Guidance about specific mitigation techniques
• Waiver