The Incumbent That Wrote the Solicitation
An agency is preparing a follow-on competition for an $18 million, five-year SETA support contract. The incumbent contractor prepared the statement of work, the independent government cost estimate, and the evaluation criteria, and its staff sat on the source selection board that reviewed the draft. The incumbent's proposed program manager also helped draft the evaluation criteria. The incumbent derives 60% of its annual revenue from this contract and intends to bid. The contracting officer learns of this involvement two weeks before the solicitation is scheduled for release. The agency has not yet issued a solicitation, and no bidders' conference has been held. The CO must decide whether the incumbent can compete, what FAR subpart governs, and what mitigation or exclusion is appropriate.
1. Identify the type of conflict and the FAR subpart. Is exclusion mandatory?
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This is an organizational conflict of interest (OCI) under FAR Subpart 9.5. The incumbent's preparation of the statement of work, the independent government cost estimate, and the evaluation criteria implicates FAR 9.505-2, which addresses contractors preparing specifications or work statements, and potentially FAR 9.505-4 if the contractor had access to proprietary or source-selection information.
Exclusion is not automatic. The CO must determine whether the contractor's participation would create an unfair competitive advantage and whether mitigation is sufficient. The fact that the incumbent drafted the evaluation criteria is especially serious because it could have shaped the criteria to favor its own strengths. The CO should document a written OCI analysis, consider the Government's interest in competition and continuity, and decide whether the incumbent can compete with a mitigation plan or must be excluded. The determination must be made before the solicitation is issued.
2. What actions should the CO take before issuing the solicitation?
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The CO should first obtain a detailed written description of the incumbent's role, including who prepared each document and whether the incumbent had access to proposal information or evaluation deliberations. The CO should then require the incumbent to submit a mitigation plan: a firewall between the incumbent's contract performance team and its proposal team, nondisclosure agreements, recusal of personnel who drafted the SOW or criteria, and a commitment not to use non-public information.
The CO should independently review and revise the evaluation criteria and the IGCE so they are not solely the incumbent's product. If the incumbent's personnel sat on the source selection board, the CO should remove them from any role in the follow-on competition. If mitigation cannot eliminate the unfair advantage, the CO should exclude the incumbent and document the basis. The CO should also decide whether to disclose the OCI to other offerors and require all offerors to disclose their own OCIs.
3. If the incumbent is allowed to compete, what solicitation provisions or contract clauses should be used?
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The CO should include a solicitation provision requiring each offeror to disclose any actual or potential OCI and to describe its mitigation plan, as contemplated by FAR 9.507-1. The resulting contract should include a clause requiring the contractor to avoid, neutralize, or mitigate the OCI, to report any changed circumstances, and to cooperate with the CO's review, as contemplated by FAR 9.507-2.
The CO should also include a nondisclosure requirement for any non-public information and a clause allowing the Government to terminate or disqualify the contractor if the mitigation fails. If the incumbent will perform work that requires access to competitor information, the CO should require a firewall and separate facilities. The clauses must be tailored to the specific risk, not boilerplate. The CO should document why the selected mitigation is adequate and how it will be monitored.