Section 27-4707. ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION

 

4707.1The Department 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. 

 

4707.2If 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 CCO’s approval.. 

 

4707.3A determination by the CCO to take a corrective measure described in
subsection 4707.2 shall be made in writing and included in the contract file. 

 

4707.4The ethical considerations that may authorize disqualification or another corrective measure are not limited to the ethics and conflict of interest rules of the Department or 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 Department involved in a procurement had a relationship with a contractor that fell outside the Department or the District’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 District 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.

 

4707.5“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 Department; or

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

 

4707.6Organizational 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 Department 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.

 

4707.7A 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 Department 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 Department’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. 

 

4707.8In 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.

authority

The Interim Director of the Department of General Services (Department), pursuant to section 1106(a)(2) of the Procurement Practices Reform Act of 2010, effective April 8, 2011(D.C. Law 18-371; D.C. Official Code § 2-361.06(a)(2))(2011 Repl.); sections 1025(a) and 1029 of the Department of General Services Establishment Act of 2011, effective September 14, 2011(D.C. Law 19-21; 58 DCR 6226); and Mayor’s Order 2011-168, dated October 5, 2011.

source

Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 990 (February 10, 2012).