D.C. Mun. Regs. tit. 5, r. 5-D107

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 5-D107 - ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION

107.1

The Office intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities. Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor (or to take other appropriate measures) based on a conflict of interest or another ethical consideration.

107.2

If the CCO determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the CCO may:

(a) Disqualify a contractor at any point during a procurement;

(b) Rescind or terminate a contract subsequent to contract award; or

(c) Take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement; provided, however, that prior to taking any such action, the Contracting Officer shall first obtain the approval of the CCO.

107.3

A determination by the CCO to take a corrective measure described in subsection 107.2 shall be made in writing and included in the contract file.

107.4

The ethical considerations that may authorize disqualification or another corrective measure go beyond a violation of the ethics and conflict of interest rules of the Office and the prospective contractor, if any. The CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of a procurement. For example, situations in which corrective measures might be warranted include (but are not limited to):

(a) Cases where a director or employee of the Office involved in a procurement had a relationship with a contractor that fell outside the Office's recusal rules, but nonetheless raised questions about the procurement's integrity;

(b) Cases where a prospective contractor received preferential treatment in relation to its competitors;

(c) Cases where a prospective contractor hired a former employee of the Office who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or

(d) Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.

107.5

"Organizational conflicts of interest" also may warrant disqualification or other corrective measures. Organizational conflict of interest means a situation in which a contractor:

(a) May be unable to render impartial and objective assistance or advice to the Office; or

(b) May have an unfair advantage over potential competitors.

107.6

Organizational conflicts of interests can arise in a variety of circumstances. For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement. Another example is a case where a contractor performs services for the Office that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.

107.7

A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the CCO has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist the Office in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement. A contract in which the contractor gains access to proprietary information of other companies (or non-public information on the Office's procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage.

107.8

In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent:

(a) The existence of conflicting roles that might bias a contractor's judgment; and

(b) An unfair competitive advantage.

D.C. Mun. Regs. tit. 5, r. 5-D107

Notice of Emergency and Proposed Rulemaking published at 57 DCR 8514 (September 17, 2010) [EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 11189, 11194 (November 26, 2010)

Authority: The Director of the Office of Public Education Facilities Modernization, pursuant to section 702(b) of the District of Columbia Public Education Reform Amendment Act of 2007 (Act), effective June 12, 2007 (D.C. Law 17-9; D.C. Official Code § 38-451(b)) (2007 Supp.).