In the face of an actual or potential organizational conflict of interest (OCI), the potential solutions are often limited. There are several options for contractors and the government that are broadly categorized as mitigation, avoidance, neutralization, limitations on future contracting, and exclusion. Although used sparingly, the FAR also provides that the government can “waive” actual or potential OCIs. Specifically, FAR 9.503 states: “The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest.”

A recent GAO decision sheds light on how contractors and agencies should think about OCI waivers. CACI, Inc.-Federal; General Dynamics One Source, LLC, B-413860.4, et al., Jan. 5, 2018.

Continue Reading GAO Lets Stand an Agency’s OCI Waivers in Face of a Multi-Prong Challenge

Contractors that use a fiscal year ending 12/31 submit their annual cost submissions in June of the following year.  For 2010 incurred cost submissions (ICS) submitted in June 2011, many contractors may receive affirmative claims from the Government seeking to disallow some or all of those incurred costs, because the Government has a 6-year statute of limitations to bring such claims (i.e., June 2017).  Due to DCAA’s audit backlog, COs may receive Audit Reports right around the SOL deadline, and issue Final Decisions in order to avoid missing that deadline.  Contractors that do receive Final Decisions disallowing costs should be aware of the 90 day limit to appeal the Final Decision, whether they intend to negotiate or litigate.