We’ve discussed the Weapons System Acquisition Reform Act of 2009 (WSARA) several times.  (See, for example, this article or this one here.)  WSARA—aka Public Law 111-23—aimed to “improve the organization and procedures of the Department of Defense for the acquisition of major weapon systems, and for other purposes.”

Section 207 of WSARA required the DOD to “to revise the DFARS to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (OCIs) by contractors in major defense acquisition programs.”  Accordingly, on April 22, 2010, the DAR Council published a proposed revision to the Defense Federal Acquisition Regulation Supplement (DFARS) in the Federal Register.  The proposed rule can be found here.

According to the proposed rule—

The law sets out situations that must be addressed and allows DoD to establish such limited exceptions as are necessary to ensure that DoD has continued access to advice on systems architecture and systems engineering matters from highly qualified contractors, while ensuring that such advice comes from sources that are objective and unbiased.

In developing regulatory language, DoD is directed to consider the recommendation presented by the Panel on Contracting Integrity. ... DoD must also consider any findings and recommendations of the Administrator of the Office of Federal Procurement Policy (OFPP) and the Director of the Office of Government Ethics (OGE) pursuant to section 841(b) of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417). Section 841(b) of the NDAA for FY 2009 required review by OFPP, in consultation with OGE, of FAR coverage of OCIs.

So, basically, there are a lot of stakeholders with input into the rulemaking process.  But the public is also a stakeholder, as the proposed rule noted—

A public meeting was held on December 8, 2009 … to provide opportunity for dialogue on the possible impact on DoD contracting of the section 207 requirements relating to OCIs. In the formation of this proposed rule, DoD considered the comments provided at the public meeting, as well as other unsolicited comments received from the public. Various presenters at the public meeting (1) Expressed a desire for policy and regulation to emphasize the importance of using mitigation strategies to address OCIs, (2) sought a more consistent approach within the Government to resolve OCIs, and (3) voiced a strong interest in ensuring any rule is published for comment prior to taking effect.

A highlight of the proposed rule—which you should all review at the link provided above—is that it updates the acquisition regulations to reflect recent court cases.  Savvy readers will understand that the regulations are just words, and that the words are given meaning and come alive via interpretations provided by the Courts.  So it is, with respect to OCIs, that the Government Accountability Office (GAO) and the U.S. Court of Federal Claims (CoFC) have interpreted various aspects of OCI rules in their bid protest decisions.  The DAR Council asserted that the proposed DFARS language takes the recent case law into consideration.

Cases cited in the promulgating comments included—

• Aetna Government Health Plans (B-254397, July 27, 1995)
• ICF Inc., (B-241372, February 6, 1991)
• Overlook Systems Technologies, (B-298099.4, B-298099.5, November 28, 2006)

The proposed rule—including the all-important promulgating comments—was quite long and complex.  Among other things, it proposed to add a new DFARS subpart under Improper Business Practices and Personal Conflicts of Interest—Subpart 203.12 (Organizational Conflicts of Interest)—that covered such areas as:  Types of OCIs, Contracting Officer responsibilities, Identification and Resolution of OCIs, Waivers, and Solicitation Provisions/Contract Clauses to be used.

As always, the public may submit comments to www.regulations.gov by following the instructions found at the beginning of the proposed rule.

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