Organizational Conflicts of Interest - Agency vs. Agency IDIQ

[FARmer]

Hello All,

First off I’m just going to say that I am really being tested as an 1102 like I have never been tested before!

To cut to the chase, if the Dept. of Interior has a MA IDIQ that contains an OCI clause that prohibits any vendor that holds a MA IDIQ contract (Prime and or Sub to the prime) from participating on any other contract supporting the Dept. of Interior, can the CO from another agency (supporting a division of the Dept. of Interior) make an OCI determination to make a contract award to a vendor that has one of these MA IDIQ contract?

Other tidbit of info – Market research previously conducted by Dept. of Interior MA IDIQ CO determined that the MA IDIQ would not be appropriate to support the requirement (scope issue). Dept. of Interior farmed out the contracting work and low and behold, a vendor that holds the MA IDIQ Contract submitted a proposal to the solicitation posted on a within scope MA IDIQ.

If the CO of the MA IDIQ believes that there is no way to mitigate any perceived Conflict of Interest, but the CO of the farmed out work believes the requirement has nothing to do with the scope of that IDIQ, and the vendor has no work on that MA IDIQ that would cause a conflict and has a firm mitigation strategy to prevent any conflict of interest, can the CO of the farmed out work make an OCI determination and make an award?

[Jacques]

FARmer, you ask, “Can the CO of the farmed out work make an OCI determination and make award?"

The CO of the farmed out work can make award, but not the determination that award is consistent with the restriction on future contracting appearing in the MA IDIQ contract. The decision to award does not protect the contractor from any adverse action WRT the MA IDIQ.

The Government contracting officer responsible for the contract that contains the restriction on future contracting (the MA IDIQ contract in your example above) has authority in the first instance (i.e., absent an appeal of a contracting officer’s final decision to a BCA or the COFC) to interpret the contract over which that CO has cognizance/responsibility/authority. If the CO finds the contractor failed to comply with the terms of that restriction (e.g., by submitting an offer that was accepted), the CO for the MA IDIQ can take whatever adverse action against the “breaching” contractor permitted under the contract (e.g., termination for default, adverse CPAR, something in-between).

The Government CO responsible for awarding (what may be) the “offending” contract has no authority to interpret the language of the MA IDIQ contract on behalf of the Government. However, that CO is responsible for insuring that award is consistent with FAR Subpart 9.5. As a restriction on future contracting may restrict more than just patently obvious organizational conflicts of interest, there is no necessary conflict between these two determinations (that is, where the CO on the MA IDIQ says the clause restricts, and the CO on the “farmed out work” finds award would not immediately result in an actual organizational conflict of interest).

While looking for even actual OCIs often involves looking at the terms of both contracts (to include any ongoing task orders under the IDIQ), it becomes more challenging for the CO on the “farmed out work” when s/he starts considering potential OCIs, which could easily require that CO to consider the scope of the MA IDIQ. When viewed in that light, hopefully the CO on the “farmed out work” would defer to the reasonable interpretations of the CO on the MA IDIQ on the meaning and scope of that IDIQ contract.