DOE O 4220.4, Organizational Conflict of Interest Processing Procedures

5-19-86 SUBJECT: ORGANIZATIONAL CONFLICT OF INTEREST PROCESSING PROCEDURES 1. 2. 3. 4. 5. PURPOSE. To establish processing procedures for implementing the policy of the Department of Energy (DOE) as expressed in DOE Acquisition Regulation (DEAR) 909.5 to identify and avoid organizational conflicts of interest before entering into contracts, agreements, and other arrangements. SUCCESSION. HQ N 2030.1A, ORGANIZATIONAL CONFLICTS OF INTEREST PROCESSING PROCEDURES, of 8-12-81. APPLICABILITY. These procedures apply to contracts of any dollar amount. However, for contracts awarded pursuant to the source evaluation board procedures of DEAR 915.613 the source selection official, pursuant to DEAR 909.570-9(a), rather than the contracting officer, is the finder of the potential for organizational conflicts of interest. BACKGROUND. DEAR 909.5, Organizational Conflicts of Interest, establishes Departmental policy and procedures with respect to the avoidance of organizational conflicts of interest. This Order is intended to aid the Department in identifying and avoiding contractual relationships that might lead contractors to give advice and assistance that are not unbiased, impartial, objective, and technically sound, and to eliminate any unfair competitive advantage that might accrue to the contractor. The regulation requires prospective contractors to disclose pertinent information bearing upon possible organizational conflicts of interest and requires the inclusion of contract clauses designed to prevent such conflicts during and after contract performance. This Order establishes the internal implementation procedures to assure compliance with DOE’s statutory obligations. REFERENCES. a. DEAR 909.5 which establishes policy for the avoidance of organizational conflicts of interest. b. Public Law 93-275, Federal Energy Administration Act of 1974, which authorizes certain research and development efforts, subject to organizational conflicts of interest concerns. DISTRIBUTION: INITIATED BY: Procurement and Assistance All Departmental Elements Management 2 DOE 4220.4 5-19-86 c. Public Law 95-39, which establishes statutory requirements for avoiding organizational conflicts of interest for functions of the Department derived from the Energy Research and Development Administration. d. Public Law 95-70, which establishes statutory requirements for avoiding organizational conflicts of interest for functions of the Department derived from the Federal Energy Administration, 6. DEFINITIONS. a. Affiliate is a concern or individual which either directly or indirectly controls or possesses the power to control another, or a third party which controls or has the power to control both. b. Contract is, for the purposes of implementing policy on organizational conflicts of interest, any contract, agreement, or other arrangement entered into by the DOE. c. Contractor is any person, firm, unincorporated association, joint venture, partnership, corporation, or affiliate thereof, which is a party to a contract with the Department. t d. Heads of Field Organizations, for the purposes of this Order, includes he administrators of the power administrations and the managers of DOE operations offices. e. Offeror is any person, firm, unincorporated association, joint venture, partnership, corporation, or affiliate thereof, that submits a bid or proposal, solicited or unsolicited, to the Department to obtain a contract or modification thereof.

f. Organizational Conflict of Interest describes a relationship or situation in which an offeror or a contractor (including chief executives and directors, to the extent that they will or do become involved in the performance of the contract, and proposed consultants or subcontractors in which they may be performing services similar to the services provided by the prime contractor) has past, present, or currently planned interests that either directly or indirectly relate to the work to be performed under a Departmental contract and that (1) may diminish the capacity of the offeror or contractor to give impartial, technically sound, objective assistance and advice, or (2) may result in an unfair competitive advantage. The term does not include the normal flow of benefit; from the performance of the contract. DOE 4220.4 5-19-86 3 g. Secretarial Officers are the Assistant Secretarial level officials that report directly to the Office of the Secretary. These officials along with the Secretary, Deputy Secretary, and Under Secretary (Office of the Secretary) comprise “the Secretary or the Secretary’s designee” for the purposes of the determination authorized by DEAR 909.570-9(a)(3). h. Subcontractor, for the purposes of this Order, includes any subcontractor, at any tier, that performs work under a DOE contract. 7. POLICY AND OBJECTIVES. a. To identify and analyze possible organizational conflicts of interest related to the procurement or the offeror, b. To assure, in accordance with statutory and regulatory requirements, that the Department’s contractors are unbiased and receive no unfair competitive advantage. c. To coordinate the efforts of senior program staff and the Director of Procurement and Assistance Management (MA-4), in order to avoid delays in the award and execution of contracts. 8. RESPONSIBILITIES AND AUTHORITIES.— a. Secretarial Officers shall: (1) Designate a senior program official who will review and concur in each DOE F 2030.2, “organizational Conflicts of Interest Information Abstract” (See Attachment 2) originated by their respective organizations. (2) With regard to all contract actions initiated by Headquarters program offices, exercise, where appropriate, the authority set forth in DEAR 909.570-9(a)(3) to determine that award of a contract is in the best interests of the United States, notwithstanding the existence of an organizational conflict of interest, in those cases in which such conflict cannot be avoided. b. Heads of Field Organizations shall: (1) Designate a senior official(s) who will review and concur in each DOE F 2030.2 originate by their field offices. (2) Exercise, where appropriate, the authority set forth in DEAR 909.570-9(a)(3), discussed in paragraph 8a(2) above, for all contract actions not initiated by a Headquarters program office, to be awarded by their respective field offices. 4 DOE 4220.4 5-19-86 c. Contracting Officers shall: (1) Assure that all procurement requests are reviewed for potential organizational conflicts of interest and that procurement solicitations contain organizational conflicts of interest provisions, when they are needed. (2) Assist with organizational conflicts of interest matters in all phases of the procurement cycle.

(3) Assure, by the inclusion of contract provisions and other appropriate means, that all contractors, whose contracts fall within any of the categories specified at paragraph 9a below, including management and operating contractors, establish procedures to assure review and appropriate treatment of the organizational conflicts of interest aspects of their subcontracts. The ultimate decision in all subcontract cases will be made by the DOE contracting officer, after consultation with the cognizant program office. d. General Counsel or Chief Counsel, as appropriate, shall: (1) Provide legal advice on organizational conflicts of interest issues as part of the general servicing of the procurement process. (2) Review the Secretarial Officer s or Head of Field Organization’s written findings and determinations on organizational conflicts of interest prior to publication in the “Federal Register” (see page 6, paragaphs 9h(l) and (2)). e. Heads of Contracting Activities shall establish internal procedures to assure that all determinations by contracting officers pursuant to DEAR 909.570-9(a) are reviewed either by the Office of Chief Counsel (or Office of General Counsel, as appropriate) or by a specially appointed organizational conflicts of interest reviewing official within the contracting activity, 9. PROCESSING PROCEDURES. a. Requesting Official shall complete DOE F 2030.1, “Pre-procurement Organizational Conflicts of Interest Fact Sheet,” (See Attachment 1) at the time the procurement request is initiated, provided the proposed contract falls within one of the categories listed below. If the requesting official is uncertain about whether a procurement falls within one of the categories, he or she should consult with the contracting officer prior to preparing the factsheet. The categories are: 5 DOE 4220.4 5-19-86 (1) (2) (3) (4) Evaluation services or activities, Technical, consulting, management support, and professional services. Research and development authorized pursuant to Federal Energy Administration Act of 1974 (Public Law 93-275) as amended. Other proposed research and development contracts do not require the formal organizational conflicts of interest review established by this Order. Services which, by their nature, require organizational conflicts of interest coverage. Such services are more fully described in DEAR 909.570-4, b. If the requesting official is uncertain about whether a procurement falls within one of the above categories, he or she should consult with the contracting officer prior to preparing the factsheet. c. Contract Specialist shall (1) Review the completed DOE F 2030.1 in order to determine any possible organizational conflicts of interest problem areas in relation to the proposed procurement request. (2) Advise the requesting official of any changes (e.g., revision of the statement of work), if any, are needed in order to mitigate or eliminate real or potential organizational conflicts of interest. (3) Include in solicitations necessary and appropriate provisions to assure disclosure of all relevant interests by all potential offerors. d. Requesting Officials and Contract Specialists, shall, after receipt of proposals, complete DOE F 2030.2 in accordance with the instructions on the form. Use of the abstract is not required when the contracting officer has determined that the procurement does not fall within any of the four categories listed in paragraph 9a above, or when review of the factsheet has indicated that there is no potential for organizational conflicts of interest under the Procurement.

e. Contracting Officers shall : (1) Review the completed DOE F 2030.2 and supporting file, organized in accordance with Section A of the abstract, together with any other relevant information, and make the finding required by DEAR 909.570-9(a) that a potential organizational conflict of interest exists or that there is little or no likelihood that a conflict exists with respect to a part particular offeror. 6 DOE 4220.4 5-19-86 (2) Forward such finding and contract file information for review in accordance with the procedures established pursuant to paragraph 8e above. (3) Record the basis for their conclusions in cases in which they intend to proceed in the face of a differing evaluation by the designated program organizational conflicts of interest reviewing official , as stated in paragraph 9f(2) below. (4) For procurements which are to be awarded pursuant to source evaluation board procedures, forward the organizational conflicts of interest file with their recommendations to the source selection official. f. Designated Program Organizational Conflicts of Interest Reviewing Officials (see page 3, paragraph 8a(l)) shall : (1) Review the contracting officer's written determination. (2) Document the reasons for their positions where they differ from the finding by the contracting officer. g. Source Selection Officials shall, n the case of procurements which are to be awarded pursuant to source evaluation board procedures, review the recommendation(s) of the contracting officer and the designated program organizational conflicts of interest reviewing official, and make the finding required by DEAR 909.570-9(a) that a potential for organizational conflicts of interest does exist or that little or no likelihood of a conflict exists. h. Secretarial Officers and Heads of Field Organizations, as appropriate. may exercise the authority set forth in DEAR 909.570 -9(a)(3) to determine that award of the contract is in the best interests of the United States notwithstanding the likelihood of an organizational conflict of interest, in those cases in which such conflict cannot be avoided. (1) In the case of procurement actions initiated by a Headquarters program office and to be awarded either at Headquarters or by a field office, the written finding and determination required by DEAR 909.570-9(a)(3) shall be prepared and executed by the Secretarial Officer, as appropriate. The contracting officer and the General Counsel shall review the written finding and determination prior to publication in the “Federal Register.” However, their concurrence is not necessary. The executed finding and determination shall then be forwarded to the Director of Procurement and Assistance Management (MA-4), for information purposes, who shall then provide it to the Federal Register Management Team Leader (MA-213.12) for publication in the “Federal Register.” DOE 4220.4 7 (and 8) 5-19-86 (2) In the case of procurement actions to be awarded by field offices, not initiated by a Headquarters program office, the written finding and determination shall be prepared by the field office’s senior cognizant program official, reviewed by the field organization’s legal staff and the contracting officer, and signed by the Head of the Field Organization. The signed finding and determination then shall be forwarded to the Assistant Secretary, Management and Administration (MA-l), for approval. Upon execution, the finding and determination shall be forwarded to the Director of Procurement and Assistance Management (MA-4} for information purposes who shall then provide it to the Federal Register Management Team Leader (MA-213.12) for publication in the “Federal Register,” (3) In both cases the file and the originally signed copy of the determination shall be returned to the contracting officer for the official contract file. BY ORDER OF THE SECRETARY OF ENERGY HARRY L. PEEBLES Director of Administration DOE 4220.4 5-19-86 Attachment 1 Page 1 EXAMPLE OF FACTSHEET Attachment 1 Page 2 DOE 4220.4 5-19-86 DOE 4220.4 5-19-86 Attachment 2 Page 1 EXAMPLE OF INFORMATION ABSTRACT Attachment 2 Page 2 DOE 4220. 4 5-19-86 DOE 4220.4 5-19-86 Attachment 2 Page 3 (and 4)