3.1104 Mitigation or waiver
Source: FAR 3.1104 on acquisition.gov
Contractors unable to prevent a personal conflict of interest must formally request mitigation or waiver, which only the head of the contracting activity can approve in writing.
Overview
FAR 3.1104 outlines the procedures for contractors to request mitigation or waiver of personal conflict of interest (PCI) requirements when compliance is not feasible. If a contractor cannot prevent a PCI as required by the clause at 52.203-16, they may submit a request through the contracting officer for the head of the contracting activity (HCA) to either approve a mitigation plan or waive the requirement. The HCA must determine in writing that such action is in the Government's best interest and may impose conditions to mitigate the conflict. This authority to approve mitigation or waiver cannot be redelegated below the HCA level.
Key Rules
- Request for Mitigation or Waiver
- Contractors unable to prevent a PCI must submit a request through the contracting officer for HCA consideration.
- Written Determination
- The HCA must provide a written determination that mitigation or waiver is in the Government's best interest.
- Non-Delegable Authority
- Only the HCA can approve mitigation or waiver; this authority cannot be redelegated.
Responsibilities
- Contracting Officers: Forward contractor requests to the HCA and ensure proper documentation.
- Contractors: Submit detailed requests for mitigation or waiver when unable to prevent a PCI.
- Agencies: The HCA must review, document, and decide on requests, potentially imposing mitigation conditions.
Practical Implications
This section provides a formal process for addressing unavoidable personal conflicts of interest in acquisition functions. Contractors must be proactive in identifying and reporting PCIs, and agencies must ensure high-level oversight. Failure to follow these procedures can result in noncompliance and potential contract risk.
(a) In exceptional circumstances, if the contractor cannot satisfactorily prevent a personal conflict of interest as required by paragraph (b)(2)(i) of the clause at 52.203-16, Preventing Personal Conflicts of Interest, the contractor may submit a request, through the contracting officer, for the head of the contracting activity to-
(1) Agree to a plan to mitigate the personal conflict of interest; or
(2) Waive the requirement to prevent personal conflicts of interest.
(b) If the head of the contracting activity determines in writing that such action is in the best interest of the Government, the head of the contracting activity may impose conditions that provide mitigation of a personal conflict of interest or grant a waiver.
(c) This authority shall not be redelegated.