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CSIS’ David Berteau: How you can join the OCI conversation

CSIS' David Berteau: How you can join the OCI conversation - top government contractors - best government contracting event

berteau-davidFor anyone who cares about organizational conflict of interest, take note: Today, the Defense Department will hold an open public comment session. The forum is an opportunity for industry and other interested parties to provide input on new rules spurred by the Weapon System Acquisition Reform Act of 2009. But there's a catch. “Unfortunately DOD hasn't yet provided [the opportunity] to review their proposed rules,“ says David Berteau, senior adviser and director of the CSIS Defense-Industrial Initiatives Group. That means any comments will be abstract rather than on any proposed change the DoD might be considering. “That puts everybody at a disadvantage,“ adds Berteau. Here Berteau shares more details of the Dec. 8 event, and how industry can carry on the OCI conversation with government.

ExecutiveBiz: Why are people not being allowed the opportunity to review in advance?

David Berteau: Good question. As a result of a number of compromises in legislation between February and May, the law leaves it to the Defense Department to decide how to implement stronger organization conflict of interest controls. The law is in the Department's hands; it makes it much more difficult for companies and interested parties to comment without knowing what DOD's real thinking is here.

ExecutiveBiz: How is OCI currently defined across DoD?

David Berteau: Inside DOD, the individual defense agencies have been incorporating their own changes to OCI in their solicitations. In some cases they have actually documented this in guidance memos. There was one put out by NRO that lays out a pretty strong discriminator in favor of firms that are not playing on both sides of the perceived organizational conflict of interest line. Other agencies have made it more subtle than that, e.g., through language in a solicitation.  So what you have is kind of an amalgam of approaches evolving across DOD but no consistency.  Commenters will be able to provide input based upon what they are seeing happening in solicitations, but the absence of any centralized DOD guidance creates a real problem.

ExecutiveBiz: How can companies forge ahead in the midst of a hazy OCI definition?

David Berteau: The situation as it exists today with a host of different implementation strategies by parts of DOD cannot sustain itself over time. Companies are going to have to request, and DOD is going to have to provide, some constancy and guidance here.

ExecutiveBiz: Where do you think OCI is headed, overall?

David Berteau: The overall policy direction over the past few years has been more and more one of trying to get companies to decide which side of the corporate equation they can play on.  They can either help the government with the government's own work or they are going to bid to perform services.  It is going to be harder and harder to play both sides of that equation.  I think that there is a lot of room for companies to make a decision that says, “˜You know what? We are going to pick our side and that's what we are going to focus on.'  I think that is partly what Northrop Grumman did with respect to selling TASC.

ExecutiveBiz: What can government contractors do to push DoD toward a singular definition?

David Berteau: Those on the docket already need to come prepared with specific examples of implementation being done across DoD that is inconsistent both internally and across the board. That way, the government can have a better idea of the situation companies face today.  I think that is the greatest value that can be provided to DoD at this time.

ExecutiveBiz: And those that aren't on the docket?

David Berteau: One of the questions that will come up is whether DoD intends to issue its proposed regulations as just that ““ proposed regulations “” or whether they are issued as interim regulations that can take effect even while a comment period is underway.  I don't know which one DoD plans to do. Some commenters may urge DoD to issue the regulations as proposed rules available for comment.  There will be another round of specific comments after DoD drafts it. That is what I think companies should push for “” and if you are not on the docket you ought to find a way to push for that in direct communications to DoD.

ExecutiveBiz: When companies do have an opportunity to speak, what should their comments be focused on?

David Berteau: I think they've got to look at it from their own best interest perspective, what makes the most sense to them. Ultimately the government proposes rules, but they don't have a good sense of how much trouble it is to implement and execute those rules. I think  that's where companies can provide the best insight to the government ““ how hard is it going to be to manifest what you want as you put your proposed rules out there.

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