Public Contract Law Journal

Developing an Organizational Conflicts of Interest Framework: The U.S. System as a Starting Point

by Michael D. Pangia

Michael D. Pangia (mdpangia@gmail.com) is pursuing his Master of Laws in Government Procurement Law at The George Washington University Law School. The views in this article are those of the author and not those of any U.S. Agency. He would like to thank Christopher Yukins, Professor and Co-Director of the government procurement law program at The George Washington University Law School, and Hon. Elizabeth W. Newsom, Armed Services Board of Contract Appeals, for their guidance in preparing this work.


I. Introduction

Organizational Conflicts of Interests (OCIs) can, if not mitigated, directly affect the legitimacy of public procurement systems.

A government’s approach to handling OCIs is an often-overlooked challenge to the integrity of any procurement system, developed or developing.1 In fact, the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA), the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Public Procurement (UNCITRAL Model Law), and the European Union (EU) Directives on Public Procurement give only cursory treatment to this issue.2 The United Nations Convention against Corruption only briefly addresses the issue of OCI in its chapter on preventive measures.3 As governments increasingly rely on service contracts, requiring contractors to make subjective judgments, and on umbrella contracts (analogous to Indefinite Delivery / Indefinite Quantity contracts in the United States) with very broad scopes of work, the number of OCIs will likely increase.4

OCIs can be broadly defined in the procurement context as arising when an organization that seeks to perform or is performing contracts for a public body has conflicting roles and responsibilities such that its ability to provide unbiased advice to the government is in question, or when an organization has an unfair competitive advantage.5

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