LaRC Office of Chief Counsel
(OCC)
•Provides legal support, advice, representation
to LaRC personnel on wide range of legal
matters
• Business Law (Contracts, Grants, Fiscal Law, Agreements)
• Human Relations & Ethics Law (HR, Non-contract claims, Stds of
Conduct)
• Intellectual Property Law (Patents, Licensing, Copyright, Software,
IP)
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OFFICE OF CHIEF COUNSEL
CHIEF COUNSEL – MICHAEL MADRID
DEPUTY CHIEF COUNSEL – SHAWN GALLAGHER
SECRETARY – PAMELA LINK LEGAL ASSISTANTS – BRIDGETTE SINGLETON & GAIL TERRY – PARALEGAL ELAINE MCMAHON
BUSINESS LAW
HUMAN RELATIONS & ETHICS
ASSOCIATE CHIEF COUNSEL FOR
BUSINESS LAW –MIKE MARK
ASSOCIATE CHIEF COUNSEL FOR
HUMAN RELATIONS & ETHICS LAW – PETE POLEN
ATTORNEYS—TOM MCMURRY & PATRICK MCCAFFERY
ATTORNEYS—KEN GOETZKE & MONA WILLIAMS
General Business Policy & Strategy
Human Relations & Ethics Policy & Strategy
Personnel Issues Merit Issues, Grievances, Discipline/Adverse Actions, Training,
Congressional Inquiries, Classification, Staffing, Reassignments,
Promotions, RDCP, Performance, Workforce Mechanisms, Travel,
Intergovernmental Personnel Act (IPA) Agreements
Contract Formation & Administration
Contract type, Competition, Solicitation, Selection,
Negotiation, Ratification, Bonds, Insurance, Performance,
Inspection, Termination, Fee Determination, Assignment,
Novations
Procurement Integrity
Procurement Fraud, Suspension & Debarment,
Organizational Conflicts of Interest
EEO
Title VII, Sexual Harassment, Diversity, ADEA, Affirmative Action
Contract Disputes & Litigation
ADR, Protests, Claims, Appeals and other Court Actions
HR Disputes and Litigation
MSPB, EEOC, ADR, OFO, District Court
Grants & Other Assistance Agreements
Grants, Cooperative Agreements, Intergovernmental
Cooperation Act, etc.
Labor Law
ULPs, Negotiations, FLSA, CBA
Other Agreements
SAAs, IAs, CRADAs, Property Loans, Economy Act
Agreements
Claims
Tort Claims, Employee Personal Property Claims, Garnishments,
Levies
I NTELLECTUAL P ROPERTY
PATENT COUNSEL – ROBIN EDWARDS
ATTORNEY—HELEN GALUS
Intellectual Property Policy & Strategy
Patents
Prosecutions, Infringements, Patent Rights Determinations:
Domestic & PCT
Licensing of Government-Owned Inventions
Patent Licensing, Joint Ownership Agreements, Copyright
Licenses
Space Act Agreements & CRADAs
MOAs, MOUs, Intra-Agency Agreements, Inter-Agency
Agreements, JSRAs
Copyrights
Permission Grants to Assert Copyright, Assignments to NASA,
Technical Papers and Technical Societies, Library Policy,
Infringement
Trademarks
Trademark Infringement, Trademark Development/
Registration, Use of NASA Devices (Seal, Insignia, etc.)
Fiscal Law & Money
Appropriations, Improper Payments, Taxes, etc.
Property Management
Property Utilization and Disposal, Real Property, Historic
Preservation, Environment, etc.
Information Law
Intellectual Property, Technical Data Acquisition and
Protection
Access Law, FOIA and Privacy Act
Standards of Conduct
Employee Counseling & Training, Outside Activity, Post Employment,
Financial Report Reviews, Travel
Law Enforcement and Investigations
Federal Arrest Authority, Security, Access Issues, Use of Force,
Criminal Investigations, Search and Seizure, Clearance Issues
Non-Appropriated Fund Activities
Exchange Council Legal Advisor, NAFI Hiring, Employee Disputes,
Langley Exchange Activities, Exchange Shop, Child Development
Center, Insurance
Software
Software Release, Incoming Software Licenses, Templates for
SRAs
Competitive Sourcing
Legal Advisors on FAIR Inventory, MEO, Management,
and PWS Teams
Competitive Sourcing
Legal Advisors on FAIR Inventory, MEO, Management, and PWS
Teams
International Affairs
Export Control, International Agreements, Waiver of
Residency Abroad
Miscellaneous
Institutional Review Board, Occupational Health, Workplace Violence,
Non-Contract Fiscal Law, Review of CPs, LaPDs & NPDs, Safety,
Legislative Proposals, OHEC Team, and Property Survey Board
OCC Mission Statement: As an integral part of NASA LaRC,
we provide high quality legal advice, legal representation,
assistance, and counsel; thereby assisting the Center and the
Agency to pioneer in space exploration, scientific discovery,
and aeronautics research.
Miscellaneous
NIA, Review of CPs, LaPDs, & NPDs, PALS Team,
Legislative Proposals, Exchange Contract Issues
As of January 11, 2010
{1120.00 L0005702.v1 }
Proprietary Information
Non-Disclosure Agreements, Reproduction Requests
Procurement IP Issues
Patents, Data, Innovations, Inventions & Copyrights, Grants &
Cooperative Agreements, Patent Rights/New Technology
Issues, Contract Modifications to IP Clauses
OCC Vision: To be NASA’s premier team of legal
professionals, widely known for innovative, effective, and
professional representation and counsel, making valued
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contributions as essential members of the LaRC and NASA
Teams.
Organizational
Conflicts of Interest (OCI)
LaRC Office of Chief Counsel
NOTE: This presentation is for informational purposes only
and does not constitute legal advice to the recipients, who
should consult with their counsel on OCI issues.
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What is an OCI?
•
OCIs are a subset or type of a Conflict of Interest (COI)
•
The conflicted party is an organization – not an individual
•
The conflict relates to the organization’s competing interests (Corporation’s first
interest: To enhance its current and future business opportunities)
•
There are two important assumptions:
1) Organizations want to further their own interests
2) All people and bodies associated with an organization will treat the
organizations interests as their own and want to further them
•
Useful reference – Dan Gordon article, “Organizational Conflicts of Interest: A
Growing Integrity Challenge”, 35 Public Contract Law Journal 25 (Fall 2005)
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What is an OCI?
•
OCIs are distinct from personal conflicts of interest (PCIs)
•
PCIs involve personal motives (acting in the best interests of self or certain family
members and not one’s employer)
•
•
•
E.g., stock ownership, spouse’s employer
PCIs for contractors are not covered by the FAR…..yet
FAR Case 2008-025 (Nov. 2009) “Preventing Personal Conflicts of Interest” (Comments
due Jan. 12, 2010)
• New FAR Clause will require Contractors to identify and prevents PCIs of
“covered employees”
• Contractors must develop procedures to screen employees at least annually
• “Covered employees” includes employees that perform “acquisition
function[s] closely associated with inherently governmental functions”
• Waiver by HCA (non-delegable) and flow down to subs (Ks >100K)
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Why are OCIs increasing?
• Increased use of contractors
• Consolidation within industry
• Types of services increasingly entail the
exercise of judgment
• Increase in the use of umbrella (IDIQ)
contracts
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OCIs - Regulatory Guidance
• FAR Part 9.5 (Organizational and Consultant
Conflicts of Interest)
• Government Accountability Office/Court of
Federal Claims case law on OCIs
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OCI – FAR Requirements
FAR Part 9.505 (General Rules)
Multiple examples of OCIs…however, the list is not
exhaustive, and the FAR requires that each situation be
examined on the particular facts and the nature of the
proposed contract. 2 underlying principles
– Preventing conflicting roles that could bias a
contractor’s judgment; and
– Preventing an unfair competitive advantage
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OCI – FAR Requirements
FAR Part 9.504 (CO Responsibilities)
The contracting officer shall:
– Identify and evaluate potential OCIs as early as
possible…
– Avoid, neutralize or mitigate potential OCIs before
contract award
– Recommend a course of action to the HCA before
issuing a solicitation that may involve a significant
potential conflict
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Biased Ground Rules
Refers to situations where a company sets the ground rules for a
future competition
ex: Writing specifications –Nature of the conflict is setting the best
ground rules for Agency’s future requirement versus winning the future
requirement
Harm:
•Future competition may be unfair
•Future competition reflects best solution for contractor’s business
opportunities and not best solution for NASA
Potential Solutions:
•Bundle requirements development and delivery of the “end item”
•Have multiple contractors develop requirements documents
•Disqualify the contractor that prepared the specifications from the
future competition (Limitation of Future Contracting)
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Unequal Access to Information
Refers to situations where a company has access to nonpublic information
that gives it an unfair advantage relative to a future competition
ex: Program configuration management, scheduling and database
administrative support – Nature of the conflict is performing with access to
non-public information versus obtaining a competitive advantage for a future
requirement.
Harm:
•Access to information not readily available to competitors
•Use of non-public information for competitive advantage in violation of
Procurement Integrity Act, Trade Secrets Act, other laws/regulations
Potential Solutions:
•Disseminate the non-public information before the competition
•Establish a firewall so contractor cannot use data in future competitions
•Prevent contractor from using sensitive information in future related
competitions (Limitation of Future Contracting)
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Impaired Objectivity
Refers to situations where a company performs evaluations and
assessments of the work/proposals/performance of itself or its
competitors
ex: Contractor submits a proposal in a competition where it is also assisting
with evaluation of proposals
Harm:
•Evaluations and recommendations may be flawed inadvertently
reflecting contractor’s method of performance or recommending its
services over those proposed by others
Potential Solutions:
•Disqualify contractor that performs the evaluation/assessments from
performing future work (Limitation of Future Contracting)
•Establish a process for limited reviews/assessments
•Establish “firewalled” subcontractors
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Addressing OCIs in the Contract
• NFS Clauses
• Limitation of Future Contracting (NFS 1852.209-71)
• Access to Sensitive Information (NFS 1852.237-72)
• OCI Avoidance Plan
• Requirement triggered by Access to Sensitive Information clause
• Requires the contractor to explain how it will address OCIs
during performance
• Specially
Drafted OCI Clauses
• LaRC Unique Clauses (IDIQ Contracts)
•Specific OCI Issues/concerns (impaired objectivity)
• Certification of “no OCIs” by contractor (ex: NRC Contract)
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Additional Thoughts
• Contractors are increasingly used in roles
traditionally performed by civil servants- this
increased influence in agency decision-making
presents challenges
•
•
Increased access to information
Opportunities to affect agency procurements or gain a competitive edge
• Ultimately Contractors have best information as
to OCIs they may encounter – critical they do the
investigations and inform CO ASAP
•
OCI Avoidance Plan is key method to ensure a process is in place
• We risk programs and LaRC/NASA reputation if
we fail to identify and mitigate OCIs
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