Deviation from FAR 9.505-2 Biased Ground Rules Conflict of Interest Prohibition?

[govt2310]

FAR 1.402 Policy states, "Unless precluded by law, executive order, or regulation, deviations from the FAR may be granted . . . ."  FAR 9.505-2, which addresses the Biased Ground Rules Organizational Conflict of Interest (BGR-OCI), is not based on a law or EO.  It is not "based" on another "regulation" either.  It appears that the concept of a BGR-OCI was present in the first issuance of the FAR back in 1983, 48 FR 42142 (Sept. 19, 1983).  In drafting the FAR, the FAR Council stated that they did this pursuant to the OFPP Act, 796 Pub. L. 93-400 (Aug. 30, 1974), starting at Section 2.  That Act does not specifically address BGR-OCI.  Therefore, the FAR 9.505-2 provision on BGR-OCI is not based on a law.  This leads me to ask the question: would it be possible for an agency to issue a FAR 1.403 Individual Deviation from FAR 9.505-2 (BGR-OCI prohibition)?

[C Culham]

10 hours ago, govt2310 said:

This leads me to ask the question

Interesting question but I believe you have missed an important word - "regulation".   Doing an individual deviation might be precluded by the very FAR citation you note - the whole of FAR 9.5.

This said you most likely will, in my view, now have an uphill battle  in consideration of this statute - https://www.congress.gov/bill/117th-congress/senate-bill/3905/text

All and all I just wonder why you would want a deviation?   I realize nothing is 100% so there maybe a dang good reason for the hoped for deviation but considering that FAR 9.5, by my read, is a regulation that was for a long time steeped in case law ( I say "was" because of the noted statute) I just wonder why one would want to deviate from it.

[Vern Edwards]

11 hours ago, govt2310 said:

Therefore, the FAR 9.505-2 provision on BGR-OCI is not based on a law.

@govt2310See Pub.L. 117-324, Preventing Organizational Conflicts of Interest in Federal Acquisition Act, Dec. 27, 2022, 136 Stat. 4439, and FAR Case 2023-006, "Preventing Organizational Conflicts of Interest in Federal Acquisition."

For more information about OCI, see the NASA Handbook, which is generally considered one of the best.

https://www.nasa.gov/sites/default/files/atoms/files/nasa_organizational_conflicts_of_interest.pdf

You should put your question about a deviation to the powers that be in your agency. Of what possible value to you could any of our speculations be?

Have you read FAR 9.503, Waiver?

FYI, the GAO has issued 137 protest decisions about biased ground rules OCIs. The Court of Federal Claims has issue 28.

 

[govt2310]

@C Culham and @Vern Edwards Thanks!  Well, Public Law 117-324 (Dec. 27, 2022) just says that the FAR Council has to revise the FAR to address OCIs, including BGR-OCI, and provide illustrative examples.  It does not specifically define what a BGR-OCi is, nor does it specifically state that a BGR-OCI is to be treated or addressed in a particular way.  If this Public Law is considered "a law" that "precludes" deviation" IAW FAR 1.402, then no deviations can ever be done to the FAR.  The FAR itself was created because Congress passed a statute, the OFPP Act, directing the FAR Council to issue acquisition rules.  And yes, I am aware of the FAR 9.503 OCI Waiver tool.  However, that has to be done after the Solicitation has been released and proposals have been received.  If an agency could do a deviation and put notice of this deviation in the Solicitation, if no offerors timely protested it, then no one could raise this issue in a post-award protest.  And thank you for the link to the NASA Handbook, that is a helpful resource.

[Vern Edwards]

2 hours ago, govt2310 said:

And yes, I am aware of the FAR 9.503 OCI Waiver tool.  However, that has to be done after the Solicitation has been released and proposals have been received. 

Here is FAR 9.503, Waiver, in full:

Quote

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. Any request for waiver must be in writing shall set forth the extent of the conflict, and requires approval by the agency head or a designee. Agency heads shall  not delegate waiver authority below the level of head of a contracting activity.

Where does that say it must be done after the solicitation has been released and proposals have been received? If I recall correctly, you said elsewhere that you already know what company has a possible conflict. Perhaps my recollection is faulty.

[govt2310]

@Vern EdwardsOk, I see what you mean.  FAR 9.503 doesn't expressly state that the Waiver is to be done after release and proposals have been received.  It does say "shall set forth the extent of the conflict."  That is what makes me think the FAR Council intended for this Waiver to be done only once an offeror with an OCI had submitted a proposal.  It makes it seem like the facts of a specific offeror's situation have to be known. 

In contrast, FAR 1.403 Individual Deviation, doesn't require the CO to "set forth the extent of the conflict."  It just says the CO has to document the justification and approval.  Here is FAR 1.403 in full:

Quote

1.403 Individual deviations.

Individual deviations affect only one contract action, and, unless 1.405(e) is applicable, may be authorized by the agency head. The contracting officer must document the justification and agency approval in the contract file.

 

 

FAR 1.403 makes it sound like the Individual Deviation could be for a situation where the OCI is not an OCI regarding a particular offeror (or potential offeror).  It could be an OCI that is presented by the nature of the Contract/SOW.  The CO would not have to address "the extent of conflict" in the Justification for Deviation.  FAR 1.403 prescribes no Content Requirements for this Justification.

[Vern Edwards]

15 hours ago, govt2310 said:

That is what makes me think the FAR Council intended for this Waiver to be done only once an offeror with an OCI had submitted a proposal. 

That wasn't thinking𑁋not informed thinking, not critical thinking. It was groundless speculation.

I have no idea what "the FAR Council" intended and neither to you. All we know is what the regulation says. Use your head. You're not a newbie.

[Retreadfed]

govt2310, FAR 9.504 says in part "contracting officers shall analyze planned acquisitions in order to Identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible."  Do you interpret this to mean that the identification and evaluation is to occur after a solicitation is issued?  If not, what prohibits the CO from seeking a waiver of an OCI prior to issuance of the solicitation?

[govt2310]

@Vern Edwards and @Retreadfed Ok, I see what  both of you are saying.  Thanks!