(a) Using the general rules, procedures, and examples in this subpart, contracting officers shall analyze planned acquisitions in order to—
(1) Identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and
(2) Avoid, neutralize, or mitigate significant potential conflicts before contract award.
(b) Contracting officers should obtain the advice of counsel and the assistance of appropriate technical specialists in evaluating potential conflicts and in developing any necessary solicitation provisions and contract clauses (see 9.506).
(c) Before issuing a solicitation for a contract that may involve a significant potential conflict, the contracting officer shall recommend to the head of the contracting activity a course of action for resolving the conflict (see 9.506).
(d) In fulfilling their responsibilities for identifying and resolving potential conflicts, contracting officers should avoid creating unnecessary delays, burdensome information requirements, and excessive documentation. The contracting officer's judgment need be formally documented only when a substantive issue concerning potential organizational conflict of interest exists.
(e) The contracting officer shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated. Before determining to withhold award based on conflict of interest considerations, the contracting officer shall notify the contractor, provide the reasons therefor, and allow the contractor a reasonable opportunity to respond. If the contracting officer finds that it is in the best interest of the United States to award the contract notwithstanding a conflict of interest, a request for waiver shall be submitted in accordance with 9.503. The waiver request and decision shall be included in the contract file.
[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25, 1991]
Notes of Decisions
Beta Analytics Int'l, Inc. v. United States, 61 Fed. Cl. 223 (Fed. Cl. 2004).
· cites it 6× “At the April 7, 2004 hearing, BAI proffered an affidavit from one of its employees stating that BAI was not allowed to bid on another DARPA contract because it was the incumbent contractor for the predecessor to the contract at issue and, thus, had a conflict of interest.”
Axiom Resource Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009).
· cites it 2× “Under 48 C.F.R. § 9.504 (a), contracting officers (“COs”) are required to “analyze planned acquisitions in order to (1) [ijdentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) [a]void, neutralize, or…”
Beta Analytics Int'l, Inc. v. United States, 67 Fed. Cl. 384 (Fed. Cl. 2005).
· cites it 3× “The only change to the original complaint was the replacement of the sixth count, alleging improper bias against BAI in the procurement process, with a specific allegation that the Navy failed to make a conflict of interest determination in violation of 48 C.F.R. § 9.504 (e)…”
Pai Corp. v. United States, 614 F.3d 1347 (Fed. Cir. 2010).
· cites it 2× “Specifically, PAI alleges that the contracting officer’s organizational conflict of interest analysis violates 48 C.F.R. §§ 9.504 (a) and 9.506(b). PAI asserts that, in order to comply with these regulations, the contracting officer is required to (1) analyze any type of…”
Filtration Dev. Co. v. United States, 60 Fed. Cl. 371 (Fed. Cl. 2004).
· cites it 2× “48 C.F.R. § 9.504 (a). The CO is instructed to “[i]dentify and evaluate potential organizational conflict of interest as early in the acquisition process as possible ----” Id.”
Filtration Dev. Co., LLC v. United States, 63 Fed. Cl. 612 (Fed. Cl. 2005).
· cites it 3× “” 48 C.F.R. § 9.504 (a)(1). Plaintiff avers that the CO unreasonably concluded that a significant OCI did not exist.”
Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020).
“” 48 C.F.R. § 9.504 (a); id., § 9.504(e). 3 The majority argues that Inserso should have known that the government would disclose competitive pricing 3 Courts should exercise caution in applying the Blue & Gold time bar to OCI claims, if at all.”
Alabama Aircraft Indus., Inc.-Birmingham v. United States, 83 Fed. Cl. 666 (Fed. Cl. 2008).
· cites it 2× “” 48 C.F.R. § 9.504 (a). “The responsibility for determining whether a contractor has a conflict of interest and should be excluded from competition rests with the contracting officer, who must exercise ‘common sense, good judgment, and sound discretion’ in assessing whether a…”
Parcel 49C Ltd. P'ship v. United States, 130 Fed. Cl. 109 (Fed. Cl. 2016).
· cites it 2× “2010) (holding that agencies are only required to document “significant potential conflicts”); 48 C.F.R. § 9.504 (a)(2). “‘A significant potential conflict [of interest] is one which provides the bidding party a substantial and unfair com *124 petitive advantage during the…”
— 48 C.F.R. § 9.504(d) — 1 case
— 48 C.F.R. § 9.504(e) — 1 case
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