SBIRS Low

H.26 AVOIDANCE OF ORGANIZATIONAL CONFLICT OF INTEREST (OCI) REGARDING THE SBIRS LOW COMPONENT PROGRAM COMPETITION

a. Purpose: The purpose of this clause is to aid in ensuring that:

(1) in providing advice to the Government under this contract, the Contractor’s objectivity and judgment are not biased because of its present, or future financial, contractual, organizational, or other interests in the SBIRS Low Component Program;

(2) the Contractor does not obtain an unfair competitive advantage by virtue of its access to non-public Government information regarding the Government’s program plans and actual or anticipated resources;

(3) the Contractor does not obtain any unfair competitive advantage by virtue of its access to proprietary or competition sensitive information belonging to others; and

(4) all SBIRS Low Component Pre-EMD and EMD phase competitors have equal access to data, and analytical software and models in the Contractor’s possession in which the Government has or, upon delivery, will have, Unlimited Rights or Government Purpose Rights under this contract ("Government Data").

b. Scope: The restrictions described herein shall apply to performance or participation by the Contractor and any of its affiliates or their successors in interest (hereinafter collectively referred to as "Contractor") in the SBIRS High contract as Prime Contractor, subcontractor, co-sponsor, joint venturer, consultant, or in any similar capacity, and shall be implemented in a Government-approved OCI Avoidance Plan. The terms of this clause shall only apply until the SBIRS Low Component EMD contract award date or SBIRS Low program cancellation by the Government. The term "Proprietary Information" for purposes of this clause means all information designated as proprietary in accordance with law and regulation, and held in confidence or disclosed under restriction to prevent uncontrolled distribution. Examples include limited rights data, restricted rights computer software, trade secrets, and sensitive financial information. Proprietary information may appear in cost and pricing data or involve classified information. Information furnished voluntarily by the owner without restrictions on its use, or which is available without restrictions from other sources, is not considered to be proprietary. Competition Sensitive Information is information relating to the SBIRS Low Component Program, the disclosure of which to a competing contractor would inform them of the disclosing contractor’s plans, approaches, designs, specifications, intent, etc. to their detriment and the detriment of the integrity of the Government’s procurement. This may include Government Information as defined in b.(3). Competition Sensitive Information refers to information which is to be protected only for the duration of the SBIRS Low Component competition. All Proprietary or Competition Sensitive Information shall be in written or other tangible, retainable format and must be clearly marked "Confidential," "Proprietary," or "Competition Sensitive", as the case may be, when disclosed to Contractor in its System-of-Systems role. If first orally or visually disclosed, information must be identified at the time of disclosure as requiring

protection and must be reduced to writing, appropriately marked, and transmitted to Contractor within ten (10) days or such longer period as specified in an applicable agreement between the disclosing party and Contractor.

(1) Providing Systems Engineering and Technical Direction - FAR 9.505-1: The Government and Contractor agree that this contract does not involve substantially all of either set of activities (systems engineering and technical direction) as defined in the cited FAR provision. The Government shall not knowingly issue direction or add scope that would change this situation. In the event that the Contractor considers a Government action to result in such a change, the Contractor shall not proceed with such direction or scope and shall immediately notify the Contracting Officer in accordance with Paragraph e. of this clause.

(2) Technical Evaluation and/or Advisory Assistance Services - FAR 9.505-3: To the extent that the Contractor performs any service covered under this FAR provision, which for the present is limited to a sufficiency review of SBIRS Low competitors' approaches to meet the SBIRS ORD requirements using the SBIRS Testbed, the parties agree that proper safeguards are in place as required by FAR 9.505-3 and are fully implemented in the OCI Avoidance Plan. The Government shall not knowingly issue direction or add scope that would change this situation. If subsequent direction or addition of scope changes this situation, the Contractor shall not proceed with such direction or scope and shall immediately notify the Contracting Officer in accordance with Paragraph e. of this clause.

(3) Access To and Use of Government Information: If the Contractor, in the performance of this contract, obtains access to Government information such as plans, policies, reports, studies, financial plans, or data which has not been released or otherwise made available to the public, the Contractor agrees that without prior written approval of the Contracting officer, it shall not, until such information is released or otherwise made available to the public:) (a) use such information for any private purpose, (b) compete for work based on such information , (c) submit an unsolicited proposal to the Government which is based on such information, or, (d) otherwise release such information.

(4) Access To and Protection of Proprietary Information or Competition Sensitive Information

(i) The Contractor agrees that to the extent it receives or is given access to Proprietary or Competition Sensitive Information under this contract, it shall treat such information in accordance with any restrictions imposed on such information by law or specific agreement with the disclosing party. The Contractor further agrees to enter into written agreements, as necessary, for the protection of the Proprietary or Competition Sensitive Information of others and to exercise diligent effort to protect such Proprietary or Competition Sensitive Information from unauthorized use or disclosure. For information purposes, the contractor has furnished copies of these agreements to the contracting officer and will provide any relevant future agreements or modifications. These agreements are not intended to protect information which is lawfully available to the Government or to the

Contractor from other sources, has been furnished voluntarily without restriction, or is already known to the Contractor.

(ii) In addition, the Contractor shall obtain from each employee who has access under this contract to Proprietary or Competition Sensitive Information relating to the SBIRS Low competition a written statement which shall in substance provide that such employee shall not, during his/her employment by the Contractor or thereafter, until the SBIRS Low Component EMD contract award date, program cancellation by the Government, or such later date as may be required by specific agreement disclose to others except in accordance with the Government-approved plan or use for their benefit, Proprietary or Competition Sensitive Information relating to the SBIRS Low competition received in connection with work under this contract.

(5) Access To and Protection of System-of-Systems Information: The Contractor shall limit access to and protect information relating to the flow-down of ORD requirements to the High and Low components, relating to High-Low mix decisions, the Requirements Allocation Document (RAD), verification of system-of-systems performance, planning for combined DT/OT, support for IOT&E and certification of the Low Component or combined systems as specified in the Government-approved OCI Avoidance Plan. The intent of this provision is that all SBIRS Low competitors, including the Contractor's SBIRS Low team, shall have the same access in all respects.

c. Employee Training: The Contractor will educate its employees regarding the philosophy of Part 9.5 of the Federal Acquisition Regulation and the requirements of the Government-approved OCI Avoidance Plan so that they will not use or disclose Proprietary, Competition Sensitive, system-of-systems, or Government Information or data generated or acquired in the performance of this contract except as provided therein.

d. Subcontracts: The Contractor shall include this or substantially the same clause, including this paragraph, in consulting agreements and subcontracts of all tiers where the work includes or may include System-of-Systems tasks. The terms "Contract", "Contractor", and "Contracting Officer", will be appropriately modified to reflect the change in parties and to preserve the Government’s rights.

e. Disclosures: If the Contractor discovers an actual or potential organizational conflict of interest not previously considered and adequately mitigated under this clause and the Government-approved OCI Avoidance Plan, the Contractor shall make a prompt and full disclosure in writing to the Contracting Officer. This disclosure shall include a description of the action the Contractor has taken or proposes to take, or actions recommended to be taken by the Government, in order to avoid or mitigate the conflict.

f. Waiver: Requests for waiver under this clause shall be directed in writing to the Contracting Officer and shall include a full description of the requested waiver and the reasons in support thereof. If it is determined to be in the best interests of the Government,

the Contracting Officer shall, upon receiving authority to do so, grant such waiver in writing.

g. Implementation Plan: The contractor has provided and the Government has approved an OCI Avoidance Plan fully implementing the provisions of this clause. That plan and its mutual obligations are incorporated herein by reference.

h. Violation of Plan: The Contractor shall report any violation of this clause or the Government-approved OCI Avoidance plan, whether by its own personnel or those of the Government or other contractors, to the contracting officer. This report shall include a description of the violation and the actions the Contractor has taken or proposes to take to mitigate and avoid repetition of the violation. After conducting such further inquiries and discussions as may be necessary, the contracting officer and the Contractor shall agree on appropriate corrective action, if any, or the Contracting Officer shall direct such action, subject to the terms of this contract.

i. Changes: Either the Contractor or the Government may propose changes to this clause or the Government-approved Plan Such changes are subject to the mutual agreement of the parties and will become effective only upon (i) incorporation of the changed clause by contract amendment or (ii) written approval of a revised plan.

j. Responsibilities of Low Component Competitors: The Government shall notify all Low Component competitors of the applicable restrictions and obligations delineated in this clause and its implementation plan specifically with regard to:

(1) Their obligation to mark appropriately any data or software provided to the SBIRS High Contractor;

(2) Their obligation not to seek or accept system-of-systems data from any source other than as permitted by this clause and its implementation plan.

Further, the Government shall modify the LADS and FDS contracts to include these two requirements and shall include appropriate, similar language in the SBIRS Low solicitation(s).