procurementethics.ppt

8/10/2019 ProcurementEthics.ppt

1/19

HEALTH AFFAIRS

TRICAREManagement

Activity

Ethics as Applied to Source

Selection


2/19

HEALTH AFFAIRS

TRICARE

Management

Activity

2

Overall Seminar Agenda

Ethics as Applied to Source Selection

Planning and Preparation

Conducting and Documenting the Evaluation


3/19

HEALTH AFFAIRS

TRICARE

Management

Activity

3

Ethics as Applied to Source

Selection

Responsibilities for Ethical Conduct

Statutory and Regulatory Framework

Procurement Integrity

Nondisclosure of Procurement Information

Post Government Employment


4/19

HEALTH AFFAIRS

TRICARE

Management

Activity

4

Ethics - Responsibility for

Ethical Conduct

Employees shall NOT:

Hold financial interests conflicting with conscientiousduty performance

Engage in financial transactions using nonpublicGovernment information

Use public office for private gain

Engage in outside employment that conflicts with

Government responsibilities

Executive Order 12674 of April 12, 1989 (as modified by E.O. 12731)


5/19

HEALTH AFFAIRS

TRICARE

Management

Activity

5

Ethics Statutory and

Regulatory Framework

Public Law 95-521, Ethics in Government Act of 1978

Code of Federal Regulations (Title 5)

United States Code (Titles 5, 18, and 41)

Joint Ethics Regulation DoD 5500.7-R Federal Acquisition Regulation (FAR) Part 3.104

Source Selection

Additional ethics guidance and resources can be found

at www.usoge.gov(U.S. Office of Government Ethics web site)
http://www.usoge.gov/http://www.usoge.gov/


6/19

HEALTH AFFAIRS

TRICARE

Management

Activity

6

Ethics - Conflict of Interest

A "conflict of interest" is a personal interest orrelationship, as defined by law or regulation, thatconflicts with the faithful performance of official duty.

Source: 18 U.S.C. Sections 201, 203, 205, 208, 209

As a Government employee, you may not participatepersonally and substantially (e.g., make a decision,give advice, make a recommendation) in anygovernment matter that would affect the financialinterests of:

You, your spouse, or your minor child, your general partner,an organization in which you are serving as an officer,director, trustee, general partner or employee, or anorganization with which you are negotiating for employment,or have an arrangement for future employment.

Source: 18 U.S.C. 208


7/19

HEALTH AFFAIRS

TRICARE

Management

Activity

7

Ethics - Procurement Integrity:Statutory and Regulatory Framework

Procurement Integrity Act41 USC 423, FAR3.104-4

Three Key Provisions:

Prohibition on disclosure or obtaining Contractor bid or

proposal information or source selection information beforecontract award (applies to government employees andContractors)

Requires agency officials to report employment contactsduring a procurement (applies to government employees

only)

Prohibits a group of employees who have participated inactions over $10 million from accepting compensation fromthe contractor for one year after participation (applies togovernment employees only)


8/19

HEALTH AFFAIRS

TRICARE

Management

Activity

8

Ban on Disclosing

Procurement Information

In any competitive award, the Procurement Integrity Actprohibits: The disclosure of Contractor Bid or Proposal Information (CBPI),

or

The disclosure of sensitive Source Selection Information (SSI)

The ban applies to: Current and former Federal employees, and

Anyone who is advising or has advised the Governmentregarding the procurement (i.e., contractor employees,consultants, etc.).

Source: 41 U.S.C. 423(a))


9/19

HEALTH AFFAIRS

TRICARE

Management

Activity

9

Contractor Bid or

Proposal Information (CBPI)

CBPI includes any of five types of information:

Cost or pricing data

Indirect costs & direct labor rates

Proprietary information about technical approach, processes,operations or techniques marked by the contractor IAWapplicable law or regulation

Information marked by the contractor as contractor bid or

proposal information

Information marked by the contractor IAW FAR clause52.215-1, entitled Restriction on Disclosure and Use of Data

Source: 41 U.S.C. 423(f) and FAR Subpart 52.215-1(e)


10/19

HEALTH AFFAIRS

TRICARE

Management

Activity

10

Ethics - Discussion

Ed is part of a team evaluating proposals for acompetitive procurement for TMA.

Violation?

At dinner, after a week ofevaluating proposals, Ed shareshis opinions and observations withhis wife, a college student, aboutthe differences between the

proposals.


11/19

HEALTH AFFAIRS

TRICARE

Management

Activity

11

Source Selection

Information (SSI)

SSI means any of ten types of information:(1) Bid prices submitted by bidders

(2) Costs or prices submitted by offerors

(3) Source selection plans (including officials names and positions

(4) Technical evaluation plans(5) Technical evaluations of proposals

(6) Cost or price evaluations of proposals

(7) Competitive range determinations

(8) Rankings of bids or proposals

(9) Reports & evaluations of source selection panels, boards oradvisory councils

(10) Other information, if marked Source Selection Information -- SeeFAR 3.104 or so designated by the Contracting Officer

Source: 41 U.S.C. 423(f)


12/19

HEALTH AFFAIRS

TRICARE

Management

Activity

12

Ethics - Discussion

LTC Smiths commanding officer asks for a brief on

how the evaluations are going. LTC Smith providesher with an overview of the strengths andweaknesses of each Offeror.

Violation?

LTC Smith is the Army representative to a teamevaluating proposals for a competitive procurementfor TMA.


13/19

HEALTH AFFAIRS

TRICARE

Management

Activity

13

Ethics - Penalty for

Disclosing Information

If an individual improperly discloses or obtains SSI for anythingof value, or in order to obtain for himself, or give to anyone else,a competitive advantage in the award of a Federal contract themaximum penalty is:

Five years in prison,

Civil penalty of $50,000 for each violation plus twice the amount ofcompensation which the individual received oroffered for the prohibited conduct, and

Adverse personnel action (i.e. termination)

If an individual knowingly discloses or obtains SSI in violation of

the Procurement Integrity Act (but not in exchange for anything ofvalue, or to give anyone a competitive advantage), maximumpenalty is:

Civil penalty of $50,000 for each violation, and

Adverse personnel action (i.e. termination)Source: 41 U.S.C. 423(e)


14/19

HEALTH AFFAIRS

TRICARE

Management

Activity

14

Ethics - Post Government

Employment Restrictions

The lifetime representation ban (18 U.S.C. 207(a)(1))If an officer or Federal employee participates personally & substantially in a contract,he/she may go to work for the contractor, but may never act as contractors representativebefore any Federal agency on that contract.

The two-year representation ban (18 U.S.C. 207(a)(2))If a Federal employee has a contract under his/her official responsibility during his/her lastyear in the government, he/she may go to work for the contractor, but may not, for 2 years,act as contractors negotiator or representative before any Federal agency on thatcontract.

The one-year no contact rule (18 U.S.C. 207(c))General/Flag officers and SES 5 & 6 employees may not, for one year, communicate with,

or appear before, any employee of their former agency, on behalf of a third party, inconnection with any matter on which the third party seeks official action by their formeragency.

The one-year compensation ban (41 U.S.C. 423(d))People who serve in one of seven positions, orwho make one of seven types ofdecisions, on a contract over $10 million, may not accept compensation from the

contractor for one year from date of last service or decision.


15/19

HEALTH AFFAIRS

TRICARE

Management

Activity

15

Procurement Integrity -

One-Year Compensation Ban

Seven Positions Affected

Procuring Contracting Officer

Source Selection Authority

Member of Source Selection Evaluation Board Chief of Financial or Technical Evaluation Team

Program Manager

Deputy Program Manager

Administrative Contracting Officer


16/19

HEALTH AFFAIRS

TRICARE

Management

Activity

16

Procurement Integrity -

One-Year Compensation Ban

Seven Types of Decisions Decision to award a contract over $10 million

Decision to award a subcontract over $10 million

Decision to award a modification that is over $10 million of a

contract or subcontract Decision to award a task order or delivery order over $10 million

Decision to establish overhead or other rates applicable to acontract or contracts valued over $10 million

Decision to approve issuance of a contract payment or

payments over $10 million Decision to pay or settle a claim over $10 million


17/19

HEALTH AFFAIRS

TRICARE

Management

Activity

17

Ethics - Post Government

Employment Restrictions

If you have any questions or concerns, seek

the advice of your ethics counselorimmediately.

Military personnel should seek Post-retirement

guidance from their Ethics Counselor


18/19

HEALTH AFFAIRS

TRICARE

Management

Activity

18

Ethics - Discussion

Suppose:

You become a member of the Source Selection Boardfor a contract in excess of $100,000

Offers have been received and evaluation is beginning One of the offerors contacts you with a job opportunity

You immediately notify your supervisor and ethicscounselor

Can your supervisor demand that you terminateemployment discussions?


19/19

HEALTH AFFAIRS

TRICARE

Management

Activity

19

Ground Rules:

Ethics Summary

Ethical behavior is your responsibility if you areinvolved with a source selection!

Rules are often complicated with many exceptions

If you are not sure, seek guidance Government employeesTMA OGC Ethics Counselor

(703) 681-6012

Contractor employeesSupervisor or firm ethics advisor

Legal opinions should be sought at the earliest

possible moment Document your efforts to obtain clarification/

approval

procurementethics.ppt

Documents