Writing the Rules You Later Compete Under: Biased Ground Rules OCI

Published 2026 | TIKC NewsWire

Here is a conflict that looks like a favor and lands like a trap. An agency asks you to help shape a requirement. You write, or heavily influence, the specifications, the statement of work, or the evaluation criteria. Then the solicitation drops and you want to bid on it. You have just walked into a biased-ground-rules organizational conflict of interest, and unlike unequal access, this one is rarely something you can mitigate your way out of.

What biased ground rules means

This OCI arises when a contractor, through an earlier role, sets the ground rules for a future competition. The classic examples: you drafted the specifications, you wrote the statement of work, or you shaped the evaluation factors. The concern is not that you saw information others did not (that is unequal access). The concern is that you wrote the test you are now taking, and you may have written it, even unintentionally, to favor your own solution.

Why it is so hard to fix

Firewalls do not help here. You cannot wall off the fact that the requirements themselves may be skewed. Once you have shaped what the government is buying and how it will be judged, no NDA un-shapes it. That is why biased ground rules frequently results in a firm being excluded from the very competition it helped set up. The mitigation menu that rescues unequal-access conflicts simply does not apply, because the problem is baked into the solicitation, not into who knows what.

The trade-off you are actually making

Advisory and assistance work, helping an agency define its needs, is legitimate and valuable. But it can cost you the follow-on. The strategic question every contractor should ask before taking the upstream work is simple: which do I want more, the requirements-definition contract or the eventual production contract? Trying to have both is how firms end up disqualified from the bigger prize. Sometimes the smarter move is to help scope the work and deliberately step back from bidding, or to decline the advisory role precisely so you stay eligible for the main event.

What to do now

• Decide upstream. Before you accept requirements-definition work, decide whether the downstream contract matters more. You often cannot keep both.
• Flag it early. If you take the advisory role and later want to compete, raise the potential conflict with the contracting officer immediately. Do not let a competitor raise it first.
• Do not assume a firewall saves you. Unlike unequal access, biased ground rules usually cannot be cured by screens or NDAs.
• Watch the FAR overhaul. With OCI rules moving into a proposed Subpart 3.12, agencies are being pushed to identify these conflicts earlier and more systematically.
• Document your role. Keep a clear record of exactly what you did and did not influence. If a challenge comes, precise facts are your defense.

Biased ground rules is the conflict that rewards discipline before the fact and punishes wishful thinking after it. Choose the contract you actually want, and protect your eligibility for it. Brick by brick.

FAQ

What is a biased-ground-rules OCI?

A conflict that arises when a contractor sets the ground rules for a future competition, for example by drafting the specifications, statement of work, or evaluation criteria, and then wants to compete for that work.

Why can’t I just use a firewall?

Because the problem is in the requirements themselves, not in who has access to information. A firewall cannot un-skew a specification you helped write, so this OCI usually cannot be mitigated.

Does helping define a requirement always disqualify me?

Not always, but it frequently leads to exclusion from that competition. The safest approach is to decide upfront whether you want the advisory role or the follow-on contract, because you often cannot keep both.

How is this different from unequal access?

Unequal access is about nonpublic information you obtained and can wall off. Biased ground rules is about your influence over the rules of the competition, which cannot be walled off after the fact.

Sources

Federal Acquisition Regulation. (2026). Current Subpart 9.5 and proposed Subpart 3.12, Organizational Conflicts of Interest.

U.S. Government Accountability Office. (2026). Bid protest decisions on biased ground rules and requirements definition.

This article is general information, not legal advice.