CMS Is “Not Intercepted.”

“When you know what you’re doing, you’re not intercepted.” – Johnny Unitas Johnny U. famously uttered those words in 1958, after leading the Baltimore Colts to victory in “The Greatest Game Ever Played.” Fifty-five years later the Baltimore-based Center for Medicare and Medicaid Services (CMS), demonstrating that they “knew what they’re doing,” were “not intercepted” in an OCI bid protest. [Disclaimer: on several occasions during the past two years the author has conducted OCI training for CMS contracting officers and program managers.] In September 2012, CMS awarded a task order to CGI Federal to be a Medicare Secondary Payer (MSP) Recovery Audit Contractor (RAC). The function of an MSP-RAC is to identify and recover erroneous overpayments made by Medicare where an employer-sponsored Group Health Plan … Continue reading

A Steady Drumbeat?

In every Organizational Conflict of Interest (OCI) bid protest decision, the Government Accountability Office (GAO) says that it will defer to the Contracting Officer (CO) – i.e., that it “will review the reasonableness of a contracting officer’s OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, . . . will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.” In past years, however, several GAO decisions raised doubt as to whether GAO was merely paying lip service to the deference standard.  In each of these cases, involving all three types of OCI’s, GAO reversed a CO’s determination made after what seemed to be a serious and reasonable investigation and … Continue reading

Should the Kimono be Opened? – Organizational Conflicts of Interest (OCI) Best Practices

FAR Part 9.504 requires contracting officers (CO’s) to identify and evaluate potential OCI’s early in the process, but puts no time pressure (other than the award deadline) on the need to resolve (i.e., avoid, neutralize, or mitigate) significant organizational conflicts.   Following this timeline, CO’s will often require that proposals include relevant OCI-related information, including mitigation plans, and then defer consideration and resolution of an offeror’s potential OCI until (and unless) the offeror’s proposal is found to offer the “best value.” There are understandable reasons for this procrastination.  First, the facts may not be known initially (and may evolve, especially if the statement of work is amended).  Second, a CO’s plate is always full; where will they find the time to address potential OCI’s that won’t … Continue reading