In examining the current guidance provided by FAR subpart 9.5 on how to identify and avoid, mitigate, or neutralize an organizational conflict of interest, it is clear that the current regulations alone do not provide meaningful or uniform guidance for the United States procurement system. By revealing where our regulations lack, we can reform subpart 9.5 into a set of regulations that will not only provide meaningful guidance to the acquisition community, but also create a useful template for an undeveloped or evolving procurement system. Therefore, this Article will examine whether the current guidance provided by FAR subpart 9.5 can serve as a template for an undeveloped or evolving procurement system, and how to reform subpart 9.5 through the lens of establishing a template to provide the acquisition community the substantive and uniform guidance needed to identify, and avoid, neutralize, and mitigate organizational conflicts of interest.
The current subpart 9.5 does not provide the acquisition community with the guidance necessary to avoid, neutralize, or mitigate an organizational conflict of interest. The current subpart 9.5 is a bare set of regulations. Case law provides the acquisition community with the most guidance on how to proceed when avoiding, mitigating, or neutralizing an organizational conflict of interest. Reform of subpart 9.5 should flesh out and incorporate the substantive guidance provided in Government Accountability and Court of Federal Claims decisions. The current regulation requires the acquisition community to rely heavily on case law instead of a uniform body of regulations.
For instance, the current regulation will need to address and explain various aspects of mitigation plans that are established in case law—what they are, acceptable techniques, and acceptable guidelines for contracting officers and contractors. In addition, subpart 9.5 is void of any specific guidance on when and how a contracting officer is to identify an organizational conflict of interest. The current set of regulations does not provide any guidance on what the contractor will need to disclose when examining a potential organizational conflict of interest. In addition, the current regulation does not hold a contractor accountable for failure to disclose an organizational conflict of interest. Contractors are not notified of potential consequences for failure to disclose material facts to assist the contracting officer in identifying an organizational conflict of interest. With that in mind, the regulations should broaden and define the duties of those in the acquisition community with more specificity.
|School:||The George Washington University|
|School Location:||United States -- District of Columbia|
|Source:||MAI 51/01M(E), Masters Abstracts International|
|Subjects:||Law, Organization Theory|
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