ABA Resolution Urges FAR Council to Adopt Model Contract Provisions Proposed in ACUS Recommendation 2011-3

ABA Resolution Urges FAR Council to Adopt Model Contract Provisions Proposed in ACUS Recommendation 2011-3

The American Bar Association House of Delegates recently adopted Resolution 110A at its mid-year meeting in Dallas, which urges the Federal Acquisition Regulatory Council (FAR Council) to adopt the vast majority of the proposals contained in ACUS Recommendation 2011-3 on Government Contractor Ethics.  Specifically, the ABA Resolution adopts the following proposals that overlap with recommendations promulgated by the Conference:

• The FAR Council should adopt model contract language addressing personal conflicts of interest in the case of contractors engaged in activities closely associated with inherently governmental functions or other activities that pose a particularly grave risk of such conflicts (building upon the FAR Council’s promulgation of a rule dealing with personal conflicts of interest for contractor employees performing certain acquisition functions).
• The FAR Council should similarly adopt model contract language for those contracts that pose a substantial risk of misuse of nonpublic information.
• The FAR Council should consider requiring contractor employees to undergo training in recognizing personal conflicts of interest and in protecting nonpublic information.
• Agencies not subject to the Federal Acquisition Regulation (FAR) should consider adopting similar contract language in those transactions that pose high risks of personal conflicts of interest or misuse of information.

In addition, the ABA Resolution urges the FAR Council to propose model contract provisions that would prohibit agencies from using contractors to establish scientific or technical advisory committees without requiring the contractors to treat the members of such committees as special government employees for purposes of federal ethics laws.  This proposal goes beyond Recommendation 2011-3, which does not address the question of ethics standards for members of scientific advisory committees, but it does accord with recommendations contained in a report I prepared for the Conference’s Federal Advisory Committee Act project.  In my report, I recommended that contractor-organized committees should not enjoy special exemptions and that individuals chosen to serve on advisory committees for purposes of providing objective expertise (as opposed to representing a particular interest group) should be classified as special government employees.

The Administrative Conference has promoted Recommendation 2011-3 at various events and workshops, and it has contacted the leadership of the FAR Council to urge adoption of the recommendation.  The ABA’s resolution further underscores the importance of reforms designed to ensure that government contractor employees act with a high degree of integrity while avoiding the imposition of excessively stringent standards that would deter businesses from contracting with government agencies.  In this light, the Conference welcomes ABA Resolution 110A and looks forward to working with the ABA and FAR Council to encourage the adoption of these reforms.