[Federal Register: March 26, 2008 (Volume 73, Number 59)]
[Proposed Rules]               
[Page 15962-15963]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]





48 CFR Parts 9 and 52

[FAR Case 2007-018; Docket 2008-0002; Sequence 1]
RIN: 9000-AK98

Federal Acquisition Regulation; FAR Case 2007-018; Organizational 
Conflicts of Interest

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Advance notice of proposed rulemaking.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) are seeking information 
that will assist in determining whether the Federal Acquisition 
Regulation System's current guidance on organizational conflicts of 
interest (OCIs) adequately addresses the current needs of the 
acquisition community or whether providing standard provisions and/or 
clauses, or a set of such standard provisions and clauses, might be 

DATES: Comment Date: Interested parties should submit written comments 
to the FAR Secretariat on or before May 27, 2008 to be considered in 
the formulation of any proposed or interim rule.

ADDRESSES: Submit comments identified by FAR case 2007-018, by any of 
the following methods:
     Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2007-018'' under the heading ``Comment or Submission''. Select the link 
``Send a Comment or Submission'' that corresponds with FAR Case 2007-
018. Follow the instructions provided to complete the ``Public Comment 
and Submission Form''. Please include your name, company name (if any), 
and ``FAR Case 2007-018'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Diedra Wingate, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2007-
018, in all correspondence related to this case. All comments received 
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. Please 
include your name and company name (if any) inside the document.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 
501-4755. Please cite FAR Case 2007-018.


A. Background

    1. The Councils are considering the need for standard OCI clauses, 
or a set of standard OCI clauses, if appropriate, for inclusion in 
solicitations and contracts. The Councils are publishing a related 
advance notice of proposed rulemaking on the subject of Service 
Contractor Employee Personal Conflicts of Interest.
    2. Organizational and Consultant Conflicts of Interest are 
addressed in Subpart 9.5, as well as in some agencies' supplements.
    3. With the recent increase in the use of contractor employees to 
perform functions previously performed by Government employees (blended 
workforce) and the increased consolidation in many sectors of the 
contractor community, the Councils are seeking to determine if the 
FAR's current guidance on OCIs adequately

[[Page 15963]]

addresses the current needs of the acquisition community or whether 
providing standard provisions and/or clauses, or a set of such standard 
provisions and clauses, might be beneficial. A review of agency-
specific guidance on OCI's may reveal useful language, tools, and/or 
training that might be beneficial if expanded Governmentwide. The 
Councils also believe a review of current available training to 
contracting officers on the identification and mitigation of OCIs is 
necessary and should be included, with a gap analysis and 
    4. The Acquisition Advisory Panel (AAP) was chartered by the 
Congress at Section 1423 of the Services Acquisition Reform Act (SARA). 
Relevant portions of the final report of the AAP are located on the Web 
at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://acquisition.gov/comp/aap/documents/Chapter6.pdf. The 
Acquisition Advisory Panel (AAP) found that ``the use of contractor 
employees to perform functions previously performed by Government 
employees combined with consolidation in many sectors of the contractor 
community has increased the potential for organizational conflicts of 
interest'' (AAP Final Report, Chapter 6, Finding 6, page 417). The 
nature of the blended or multisector workforce could potentially 
distort previously clear distinctions between Government employees and 
private-sector employees, who often are working side-by-side, and may 
add complexity to the business ethics landscape for which the 
acquisition community needs updated guidance.
    5. Two recent FAR cases, 2006-007 and 2007-006, have expanded, or 
proposed to expand, general business ethics coverage and requirements 
in the FAR with respect to contractor entities. The former case was 
published as a final rule at 72 FR 65873, November 23, 2007, with an 
effective date of December 24, 2007. It requires employers to post 
Inspector General (IG) Hotline posters in their places of business, to 
have a written code of business ethics, and, with the exception of 
small businesses, to have a formal business ethics training program and 
internal control system. The latter case was published as a proposed 
rule at 72 FR 64019, November 14, 2007, whose comment period closed on 
January 14, 2008. The Councils are now reviewing the comments received. 
FAR Case 2007-006 proposes additional mandatory requirements for the 
business ethics programs. For example, contractors that do not timely 
report violations of law in connection with a Government contract or 
subcontract may be subject to suspension or debarment.
    6. Other Government agencies' approaches are located at the 
following Web sites:
    AGENCY FOR INTERNATIONAL DEVELOPMENT -- Organizational conflicts of 
interest discovered after award: Section 752.209-71 located at http://
    DEPARTMENT OF EDUCATION -- Organizational conflicts of interest: 
Section 3452.209-70 located at http://www.access.gpo.gov/nara/cfr/
    DEPARTMENT OF ENERGY -- Organizational conflicts of interest: 
Subpart 909.5 located at http://www.access.gpo.gov/nara/cfr/waisidx_
07/48cfr909_07.html; and sections 952.209-8 and 952.209-72 located at 
    DEPARTMENT OF HOMELAND SECURITY -- Organizational conflicts of 
interest: Sections 3052.209-72 and 3052.209-73 located at http://
conflicts of interest: Sections 2452.209-70 thru 2452.209-72 located at 
    DEPARTMENT OF VETERANS AFFAIRS -- Organizational conflict of 
interest: Subpart 809.5 located at http://www.access.gpo.gov/nara/cfr/
waisidx_07/48cfr809_07.html; and section 852.209-70 located at http:/
    ENVIRONMENTAL PROTECTION AGENCY -- Organizational conflicts of 
interest: Subpart 1509.5 located at http://www.access.gpo.gov/nara/cfr/
waisidx_07/48cfr1509_07.html; and sections 1552.209-70 thru 1552.209-
75 located at http://www.access.gpo.gov/nara/cfr/waisidx_07/
conflict of interest -- Limitation on future contracting: Section 
1852.209-71 located at http://www.access.gpo.gov/nara/cfr/waisidx_07/
    NUCLEAR REGULATORY COMMISSION -- Organizational conflicts of 
interest: Subpart 2009.5 located at http://www.access.gpo.gov/nara/cfr/
waisidx_07/48cfr2009_07.html; and sections 2052.209-71 and 2052.209-
72 located at http://www.access.gpo.gov/nara/cfr/waisidx_07/

B. Solicitation of Public Comment

    The Councils are seeking comments on whether additional coverage in 
this area is needed, the suitability of expanding Governmentwide one or 
a combination of the agencies' approaches, and whether expanded 
coverage would enhance the integrity of the Government's decision-
making processes.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

    Dated: March 19, 2008.
Al Matera,
Director, Acquisition Policy Division.
[FR Doc. E8-6096 Filed 3-25-08; 8:45 am]