Private-sector expertise can help the Department of Defense evaluate technology, but government officials must retain impartial decision authority. Safeguards should identify conflicts early, protect sensitive procurement information, separate key acquisition roles, document decisions, and provide legal and independent review—while addressing specific risks without unnecessarily shutting out qualified expertise.
What the safeguards are meant to prevent
Private-sector involvement is not inherently improper. Contractors may provide technical or acquisition support, but their advice should be objective and unbiased. For major defense acquisition programs and pre-major programs, DFARS 209.571-3 directs agencies to obtain advice from objective and unbiased sources. It also calls for conflict-resolution strategies that, to the extent feasible, preserve competition and DoD’s access to qualified contractor expertise.
The core public-trust standard is broader than avoiding proven misconduct. FAR 3.101-1 says government business must be conducted “with complete impartiality and with preferential treatment for none,” and that agencies should avoid both actual conflicts and the appearance of conflicts in government-contractor relationships.
Three distinct risks
- Personal conflict: An individual’s financial, employment, or other interests may affect—or appear to affect—their work.
- Organizational conflict of interest: A company may advise the government while competing for related work, or possess an unfair advantage from access to nonpublic information.
- Concentrated decision roles: Combining oversight, evaluation, negotiation, or award responsibilities can weaken checks on the process.
These risks call for different controls. Disclosure may help identify a personal conflict; a company-level information barrier or eligibility restriction may be needed for an organizational conflict. FAR Subpart 9.5 calls for fact-specific analysis, centered on preventing biased judgment and unfair competitive advantage. It contemplates avoiding, neutralizing, or mitigating conflicts rather than applying one automatic remedy to every case.
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Screen contractor personnel before assigning sensitive work
FAR 52.203-16 addresses covered contractor employees performing acquisition functions closely associated with inherently governmental functions. It requires a contractor process for identifying and addressing personal conflicts, including employee disclosures, screening, prevention or mitigation, and effective oversight.
- Identify covered roles and relevant interests before assignment. Determine whether the work falls within the clause and gather disclosures relevant to the proposed duties.
- Assess each conflict against the specific task. Consider whether the person’s interest could affect their work, or create an appearance problem, in that assignment.
- Record the control. Document an appropriate mitigation plan, reassignment, or other resolution so the contractor and agency can verify what was decided.
- Monitor the arrangement. Contractor oversight should check that the agreed controls remain effective as duties and circumstances change.
If a conflict cannot be satisfactorily prevented or mitigated in consultation with the agency, the clause’s approach is not to assign the conflicted employee to the work. Screening is therefore a continuing control, not just a form completed at hiring.
Address company-level conflicts without needlessly excluding expertise
A company can face a conflict even when an individual adviser has no personal financial interest. For example, a contractor that helps shape a program’s requirements may also seek work related to those requirements; a contractor supporting a source selection may have access to information that gives it an unfair advantage in a competition. FAR Subpart 9.5 directs contracting officials to analyze the facts and consider whether a conflict can be avoided, neutralized, or mitigated.
For major defense acquisition programs, DFARS 209.571-6 specifically tells contracting officers to consider corporate ownership relationships. The review includes cases where one business unit performs systems engineering, technical assistance, professional services, or management support while another unit competes or may compete for program work.
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Possible responses should match the risk: restrict access to procurement-sensitive information, separate business units, impose other mitigation measures, or limit a firm’s participation where lesser controls will not resolve the conflict. The governing objective is not to preserve every bidder’s eligibility at any cost; it is to protect objective advice and fair competition while retaining access to qualified expertise where feasible.
Separate roles and review the acquisition process
People providing advice should not silently become the government’s decision-makers. DFARS Part 203 describes role separation and review as best-practice policies for acquisition processes. It addresses keeping oversight, source selection, negotiation, and award functions distinct, and calls for documented source-selection processes reviewed and approved by the appropriate oversight organizations.
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- Document who provides technical or acquisition support and who has government authority for evaluation and decisions.
- Keep oversight and source-selection responsibilities distinct where the process calls for separation.
- Use periodic review by officials independent of the office or agency conducting the process.
- Obtain legal review of major acquisition source-selection documentation before award, as described in DFARS Part 203.
These controls create a record that can show what advice was considered, who evaluated it, and whether the required reviews took place. They also make it easier to spot role overlap before it affects a competition.
Protect information and manage employment transitions
Information controls matter when contractor personnel support acquisition work. Procurement-sensitive or nonpublic information should not become a private advantage in a related competition or a source of personal gain. Access should be limited to what a person needs for assigned duties, and conflicts involving access should be addressed as part of the organization’s conflict analysis and oversight.
Post-government employment is a related but distinct issue. DFARS Part 203 says a covered senior DoD official who expects compensation from a DoD contractor within two years after leaving DoD service must seek a written ethics opinion about post-employment restrictions before accepting that compensation. The applicable restrictions depend on the person’s circumstances, so an individual case requires current ethics guidance rather than a broad assumption that every former official faces the same restriction.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Why these controls matter—and what historical data can show
Contractor participation in acquisition support has been significant in some DoD offices. In a 2008 report, the Government Accountability Office said contractor employees made up as much as 88 percent of the workforce in certain offices it reviewed. GAO described contractor work that included studying acquisition alternatives, developing requirements, and advising or assisting on source selection and budget planning. That figure describes certain offices at that time; it is not a current department-wide estimate.
Congress directed the development of a standard policy to prevent personal conflicts among contractor employees performing acquisition functions closely associated with inherently governmental functions in Section 841 of the National Defense Authorization Act for Fiscal Year 2008. GAO later reported that the FAR was changed effective December 2, 2011, to require screening of covered employees and effective contractor oversight. Current obligations should be determined from the applicable FAR and DFARS text, not inferred from that historical timeline.
Quick Recap
A practical governance checklist
- Define which contractor-supported activities are acquisition-sensitive and identify the government officials who retain decision authority.
- Collect and assess disclosures before assigning covered individuals to sensitive work.
- Review company relationships, competing business units, and access to nonpublic information for organizational conflicts.
- Choose a proportionate response: screening, recusal, reassignment, access limits, mitigation, or exclusion when necessary.
- Separate key acquisition functions and preserve a clear record of advice, decisions, approvals, and reviews.
- Use contracting, legal, ethics, and independent oversight at the appropriate stages.
- Revisit controls when assignments, interests, corporate relationships, or procurement circumstances change.
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