PART 1706—ORGANIZATIONAL AND CONSULTANT CONFLICTS OF INTERESTS Authority: 42 U.S.C. 2286b(c). Source: 57 FR 44652, Sept. 29, 1992, unless otherwise noted. § 1706.1 Scope; statement of policy. (a) Scope. (b) Policy. § 1706.2 Definitions. Advisory or assistance services Affiliates Board Contract Contractor Defense nuclear facility Evaluation activities Mitigating National Laboratories Offeror Organizational or consultant conflict of interest Potential organizational or consultant conflict of interest Research Subcontractor Task order contract Unfair competitive advantage In determining the meaning of any provision of this part, unless the context indicates otherwise, the singular includes the plural; the plural includes the singular; the present tense includes the future tense; and words of one gender include the other gender. § 1706.3 Applicability. (a) General applicability. (b) Subcontractors and consultants. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.4 Head of the contracting activity. The head of the contracting activity for the Board shall be the General Manager. § 1706.5 General rules. (a) Award of Contracts. (1) For any services where the award would result in the offeror evaluating products or services it has provided to the Board, is then providing to the Board, or is then offering to provide for the Board; (2) For evaluation activities or research related to the Board's oversight of defense nuclear facilities, where the award would result in the offeror evaluating products or services it has provided, is then providing, or is then offering to provide to DOE or to contractors or subcontractors for defense nuclear facilities; or (3) For any other services (the acquisition of which is otherwise covered by this part), where the Board has determined, pursuant to § 1706.7, that an actual or potential OCI exists and cannot be avoided, and the Board does not waive that OCI. Paragraphs (a) (1) and (2) of this section also apply when award would result in evaluation of products or services of another entity where the offeror has been, is, or would be substantially involved in the development of the product or performance of the service, or has other substantial involvement regarding the product or services. (b) Subsequent related contracts. (i) The expectation of receiving the subsequent contract is likely to diminish the contractor's capacity to give impartial assistance and advice, or otherwise result in a biased work product; or (ii) An offeror on the subsequent contract would have an unfair competitive advantage by virtue of having performed the first contract. (2) If a contractor under a Board contract prepares a complete or essentially complete statement of work or specifications in the performance of a contract, the contractor shall be ineligible to perform or participate in the initial contractual effort that is based on such statement of work or specifications. The contractor shall not incorporate its products or services in such statement of work or specifications. (c) National Laboratory personnel. (1) That the nature of work performed by such personnel for DOE does not pose actual or potential OCIs with respect to the particular work covered by the Board contract; or (2) That such engagement is in the Government's best interests and that a waiver should be granted pursuant to § 1706.8. In all cases involving National Laboratory personnel, notice of the circumstances of the contract, stating the rationale for use of the personnel, shall be published in the Federal Register. (d) Work for others. (e) Contractor protection of Board information that is not publicly available. (1) Use such information for any private purpose until the information has been released or is otherwise made available to the public; (2) Compete for work for the Board based on such information for a period of six months after either the contract has been completed or such information has been released or otherwise made available to the public, whichever occurs first, or submit an unsolicited proposal to the Government based on such information until one year after such information is released or otherwise made available to the public, unless a waiver permitting such action has been granted pursuant to § 1706.8; or (3) Release the information without prior written approval of the contracting officer, unless such information has previously been released or otherwise made available to the public by the Board. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.6 Solicitation provisions. (a) Advisory or assistance services. (1) Where the contracting officer has identified certain offerors who have passed an initial screening and has determined that it is appropriate to request the identified offerors to file the certificate in order to expedite the award process; or (2) In the case of modifications for additional effort under Board contracts, except those issued under the “changes” clause. If a certificate has been previously submitted with regard to the contract being modified, only an updating of such statement shall be required for a contract modification. In addition, if determined appropriate by the contracting officer for the Board, such certificates may be required in connection with any other contracts subject to this part or in which this part has been incorporated by reference. (b) Marketing consultant services. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.7 Procedures. (a) Pre-award disclosure and resolution of OCIs. (1) Disqualify the offeror; (2) Include in the contract appropriate terms and conditions which avoid the conflict, in which case no waiver is required; or (3) Make a finding that it is in the best interests of the Government to seek award of the contract under the waiver provisions of § 1706.8, and, where reasonably possible, include contract terms and conditions or take other measures which mitigate such conflicts. (b) Post-award disclosure and resolution of OCIs. (2) If a disclosure under this section indicates, or the Board otherwise learns, that actual or potential OCIs exist, the Board may afford the contractor an opportunity to provide all relevant facts bearing upon the problem. If at any time the Board determines that an actual or potential OCI exists, one of the following actions shall ultimately be taken: (i) Terminate the contract, or, in the case of a task order contract, terminate the particular task; (ii) Insist on appropriate contract terms and conditions which avoid the OCIs, in which case no waiver is required; or (iii) Make a finding that it is in the best interests of the Government to permit the contractor to continue to perform the contract (or task) under the waiver provisions of § 1706.8, and, where reasonably possible, insist on appropriate contract terms and conditions or take other measures which mitigate the OCIs. (c) Task order contracts. (2) Contractors performing task order contracts for the Board shall disclose to the contracting officer any new work for others they propose to undertake that may present an actual or potential OCI with regard to the performance of any work under the full scope of the Board contract. Such disclosure shall be made at least 15 days prior to the submission of a bid or proposal for the new work. The disclosure shall include the statement of work and any other information necessary to describe fully the proposed work and contemplated relationship. (3) If the Board has issued a task order or a letter request for proposal under the contract with a contractor who has disclosed to the contracting officer that it proposes to undertake new work for persons other than the Board as described in § 1706.7(c)(2), for services in the same technical area and/or at the same defense nuclear facility that is the subject of the proposed new work (including overlap based upon generic work performed for others by the contractor), the Board shall inform the contractor that entering into a contract for the new work may result in termination by the Board of the task order contract, if the Board determines that such work would give rise to an OCI and the Board does not grant a waiver. (d) Decisions on OCIs. (1) The General Manager shall have the authority to approve, modify, or disapprove such recommendations regarding avoidance of an actual or potential OCI. If an offeror or contractor disagrees with the actions approved by the General Manager and requests review of the action, the Chairman shall make the decision on the actions to be taken by the Board. (2) Any recommended action respecting the best interests of the Government and mitigation measures to be taken with respect to an actual or potential OCI must be approved by the Chairman in conjunction with the decision to grant a waiver pursuant to § 1706.8, and any recommended action to terminate a contract or a particular task on account of an actual or potential OCI must be approved by the Chairman. (3) Decisions on OCIs by the General Manager or the Chairman shall be made with the advice of the Office of the General Counsel. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.8 Waiver. (a) Waiver of OCIs. (b) Criteria for Waiver of OCIs. (i) The work to be performed under contract is vital to the Board program; (ii) The work cannot be satisfactorily performed except by a contractor or offeror whose interests give rise to a question of OCI; and (iii) Contractual and/or technical review and supervision methods can be employed by the Board to mitigate the conflict. (2) The Chairman is also authorized to waive any OCI (and the corresponding provision of § 1706.5 where applicable), without regard to the foregoing factors, if the Chairman determines, notwithstanding the existence of the OCI, that it is in best interests of the Government to award or extend the particular contract, or not to terminate it, without compliance with § 1706.8(b)(1). (c) Waiver of Rules or Procedures. (d) Office of General Counsel. (e) Federal Register. Federal Register Federal Register. § 1706.9 Examples. The examples in this section illustrate situations in which questions concerning OCIs may arise. The examples are not all inclusive, but are intended to provide offerors and contractors with guidance on how this subpart will be applied. (a) Circumstances Facts. (2) Guidance. (b) Circumstances Facts. (2) Guidance. (c) Circumstances Facts. (2) Guidance. (d) Circumstances Facts. (2) Guidance. (e) Circumstances Facts. (2) Guidance. (f) Circumstances Facts. (2) Guidance. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.10 Remedies. The refusal to provide the certificate, or upon request of the contracting officer the additional written statement, required by §§ 1706.6 and 1706.7 in connection with an award shall result in disqualification of the offeror for that award. The nondisclosure or misrepresentation of any relevant information may also result in the disqualification of the offeror for that award. If such nondisclosure or misrepresentation by an offeror or contractor is discovered or occurs after award, or in the event of breach of any of the restrictions contained in this part, the Board may terminate the contract for convenience or default, and the offeror or contractor may also be disqualified by the Board from consideration for subsequent Board contracts and be subject to such other remedial actions as provided by law or the contract. [57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993] § 1706.11 Organizational conflicts of interest certificate—Advisory or assistance services. As prescribed in or permitted by § 1706.6(a), insert the following provision in Board solicitations: Organizational and Consultant Conflicts of Interest Certificate—Advisory and Assistance Services (Oct. 1990) (a) An organizational or consultant conflict of interest means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person's objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage. (b) In order to comply with the Office of Federal Procurement Policy Letter 89-1, Conflict of Interest Policies Applicable to Consultants, the offeror shall provide the certificate described in paragraph (c) of this provision. (c) The certificate must contain the following: (1) Name of the agency and the number of the solicitation in question. (2) The name, address, telephone number, and federal taxpayer identification number of the offeror. (3) A description of the nature of the services rendered by or to be rendered on the instant contract. (4) The name, address, and telephone number of the client or clients, a description of the services rendered to the previous client(s), and the name of a responsible officer or employee of the offeror who is knowledgeable about the services rendered to each client, if, in the 12* * If approved by the head of the contracting activity, this period may be increased up to 36 months. (5) A statement that the person who signs the certificate has made inquiry and that, to the best of his or her knowledge and belief, no actual or potential conflict of interest or unfair competitive advantage exists with respect to the advisory or assistance services to be provided in connection with the instant contract, or that any actual or potential conflict of interest or unfair competitive advantage that does or may exist with respect to the contract in question has been communicated in writing to the contracting officer or his or her representative; and (6) The signature, name, employer's name, address, and telephone number of the person who signed the certificate. (d) Persons required to certify but who fail to do so may be determined to be nonresponsible. Misrepresentation of any fact may result in suspension or debarment, as well as penalties associated with false certifications or such other provisions provided for by law or regulation. (End of provision)