OCI or Shaping?

Picture this, you submit a proposal to a Contract Officer, Mr. John Smith. A month later you are notified you lost to Smith Industries, owned by Mrs. Mary Smith. No relation? You get suspicious and find John and Mary are husband and wife. What the heck, right!?


Official Conflicts of Interest (OCI) is why that is wrong. This is probably more commonly understood as insider trading. Government and Contractors can not communicate in any way that gives an unfair advantage. Even the perception of an unfair advantage and you are at risk. Technically, OCI prevention is the responsibility of the Contracting Officer but businesses and especially Sales Teams should understand when to stop calling. FAR Subpart 9.5 spells out the details, but bottom line, here's what you need to know:


  1. Don't talk/email/text/communicate in any way with government decision makers while the "source selection" is happening.

  2. You can't develop drawings or specs for a system and then be awarded any sort of contract associated with those designs (FAR 9.505-1)

  3. Do not write/prepare your own Statement of Work (FAR 9.505-2). The only exceptions to this rule are if the award is sole source, you have a contract to participate in the design, more than one company is helping to develop the statement of work.


Broadly speaking there are two types of OCI. The first is influencing the bid. The other is sandbagging your bid. First, influencing the bid is the most commonly understood. Like in our example, the husband and wife very likely spoke about the requirements and competition for the solicitation. That can't happen on competitive bids. It's the Contract Officer's responsibility but guess what that means. If you call after a solicitation has been made public, the Contract Officer may disqualify you from competition just to protect them self. Second, sandbagging your bid. When you bid, you have to put forth a reasonable price to complete the work. You are assumed to be an expert in your field and understand what it takes to complete the work the government requires. If you provide a price that is low in order to when the work and then attempt to "nickel and dime" with change orders or modifications, you would be in violation. You are given an opportunity during the bid process to formally ask questions (via email). Ask your question then and get the detail you need to make your bid realistic. Knowingly undercutting a bid will put you in jeopardy.


Now, exceptions...sole source contracts are the primary exception. Design, Bid, Build contracts for construction are also a common exception. The Department of Defense has a whole list of Class Deviations. For example, pilot programs to accelerate production may be allowed. Generally though, keep a respectable and formal distance from the Contract Officer and government team while the bid process runs its course. Otherwise you are walking a fine line.


"Shaping" is basically another word for molding the solicitation to a company's favor. Get the government to include your brand name in the statement of work. Get a specialty certification that only your company has or convince the Contract Officer to use a contract vehicle that you are on but your competition isn't. Sure, shaping allowed. Even formally encouraged through the Sources Sought and Request for Information steps. Use that window of time as your chance to sell to the government team. Develop and foster the relationship. All of that is okay. Stop short of writing your own Statement of Work though. Send the government an Unsolicited Proposal or a White Paper. It may be splitting hairs but it matters.


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