[Federal Register Volume 60, Number 186 (Tuesday, September 26, 1995)]
[Rules and Regulations]
[Pages 49720-49723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23865]
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DEPARTMENT OF DEFENSE
48 CFR Parts 1, 7, 9, 17, 37, 49, and 52
[FAC 90-33; FAR Case 94-710; Item II]
RIN 9000-AG32
Federal Acquisition Regulation; Special Contracting Methods
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994, Public Law 103-355 (the Act). The Federal
Acquisition Regulatory Council is amending the Federal Acquisition
Regulation (FAR) to implement Section 1074 on the Economy Act; Sections
1503, 1504, 1552, and 1553 on the delegation of procurement functions
and determinations and decisions; Section 2454 on advisory and
assistance services; and Section 6002 on contracting functions
performed by Federal personnel. This regulatory action was subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
EFFECTIVE DATE: October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Ed McAndrew, Special Contracting
Team Leader, at (202) 501-1474 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GSA
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-33,
FAR case 94-710.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355
(the Act), provides authorities that streamline the acquisition process
and minimize burdensome government-unique requirements.
This final rule implements sections 1074, 1503, 1504, 1552, 1553,
2454 and 6002 of the Act. Section 1074 concerns the Economy Act.
Sections 1503, 1504, 1552, and 1553 deal with the delegation of
procurement functions and determinations and decisions. Section 2454
concerns advisory and assistance services. Section 6002 concerns
contracting functions performed by Federal personnel.
While the proposed rule included coverage implementing sections
1022 and 1072 dealing with multiyear contracting, that coverage has
been removed from this final rule and will be issued separately.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. A copy of the FRFA may be obtained from the FAR
Secretariat, Room 4037, GS Building, 18th & F Streets, N.W.,
Washington, DC, 20405 (202) 501-4755.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
D. Public Comments
On March 16, 1995, a proposed rule implementing these sections of
the Act was published in the Federal Register (60 FR 14340). In
response to the notice of proposed rulemaking, 25 comments were
received. The comments of all respondents were considered in developing
this final rule.
While the proposed rule included coverage implementing sections
1022 and 1072 dealing with multiyear contracting, that coverage has
been removed from this final rule and will be issued separately.
Sections 1074, 1503, 1504, 1552, and 1553 dealt with Federal
agencies' purchasing of goods and services under contracts entered into
or administrated by other agencies. Several comments related to this
section were adopted, such as clarification of the text, ensuring that
FAR payment and cost principles clauses are included in contracts
issued by servicing agencies, and clarifying that the agency head's
approval of Economy Act Determination and Findings may be delegated.
Section 2454, Codification of Accounting Requirement for
Contracting Advisory and Assistance Services, redefined ``advisory and
assistance services''. This was the most controversial issue faced by
the team. The redefinition was so broad that the team had little
latitude in deciding how to implement it. The team attempted to clarify
the definition as much as possible; however, the definition contained
in this final rule does not revise the definition to the extent
recommended by commentors. Nonetheless, the team feels that it can go
no further in revising the definition without violating the intent of
the statute. The team has decided to adopt the recommendation to add
the definition of Contract for Advisory and Assistance Services (CAAS)
contained in OMB Circular A-11 for consistency between the procurement
and accounting systems.
Section 6002 concerns the actions Federal agencies are required to
take to determine whether expertise is readily available within the
Federal Government before contracting for advisory and technical
services to conduct acquisitions and the manner in which personnel with
expertise may be shared with agencies needing expertise.
List of Subjects in 48 CFR Parts 1, 7, 9, 17, 37, 49, and 52
Government procurement.
Dated: September 20, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, 48 CFR Parts 1, 7, 9, 17, 37, 49, and 52 are amended as
set forth below:
1. The authority citation for 48 CFR Parts 1, 7, 9, 17, 37, 49, and
52 continues to read as follows:
[[Page 49721]]
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
2. Section 1.601 is revised to read as follows:
1.601 General.
(a) Unless specifically prohibited by another provision of law,
authority and responsibility to contract for authorized supplies and
services are vested in the agency head. The agency head may establish
contracting activities and delegate broad authority to manage the
agency's contracting functions to heads of such contracting activities.
Contracts may be entered into and signed on behalf of the Government
only by contracting officers. In some agencies, a relatively small
number of high level officials are designated contracting officers
solely by virtue of their positions. Contracting officers below the
level of a head of a contracting activity shall be selected and
appointed under 1.603.
(b) Agency heads may mutually agree to--
(1) Assign contracting functions and responsibilities from one
agency to another; and
(2) Create joint or combined offices to exercise acquisition
functions and responsibilities.
PART 7--ACQUISITION PLANNING
3. Section 7.103 is amended by adding paragraph (o) to read as
follows:
7.103 Agency-head responsibilities.
* * * * *
(o) Making a determination, prior to issuance of a solicitation for
advisory and assistance services involving the analysis and evaluation
of proposals submitted in response to a solicitation, that a sufficient
number of covered personnel with the training and capability to perform
an evaluation and analysis of proposals submitted in response to a
solicitation are not readily available within the agency or from
another Federal agency in accordance with the guidelines at 37.204.
PART 9--CONTRACTOR QUALIFICATIONS
4. Section 9.507-1 is amended by revising paragraph (d)(1) to read
as follows:
9.507-1 Solicitation provisions.
* * * * *
(d) * * *
(1) Services excluded in subpart 37.2;
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
5. Subpart 17.5 is revised to read as follows:
Subpart 17.5--Interagency Acquisitions Under the Economy Act
Sec.
17.500 Scope of subpart.
17.501 Definition.
17.502 General.
17.503 Determinations and findings requirements.
17.504 Ordering procedures.
17.505 Payment.
Subpart 17.5--Interagency Acquisitions Under the Economy Act
17.500 Scope of subpart.
(a) This subpart prescribes policies and procedures applicable to
interagency acquisitions under the Economy Act (31 U.S.C. 1535). The
Economy Act also provides authority for placement of orders between
major organizational units within an agency; procedures for such intra-
agency transactions are addressed in agency regulations.
(b) The Economy Act applies when more specific statutory authority
does not exist. Examples of interagency acquisitions to which the
Economy Act does not apply include acquisitions from required sources
of supplies prescribed in part 8, which have separate statutory
authority.
17.501 Definition.
Interagency acquisition means a procedure by which an agency
needing supplies or services (the requesting agency) obtains them from
another agency (the servicing agency).
17.502 General.
(a) The Economy Act authorizes agencies to enter into mutual
agreements to obtain supplies or services by interagency acquisition.
(b) The Economy Act may not be used by an agency to circumvent
conditions and limitations imposed on the use of funds.
(c) Acquisitions under the Economy Act are not exempt from the
requirements of subpart 7.3, Contractor Versus Government Performance.
(d) The Economy Act may not be used to make acquisitions
conflicting with any other agency's authority or responsibility (for
example, that of the Administrator of General Services under the
Federal Property and Administrative Services Act).
17.503 Determinations and findings requirements.
(a) Each Economy Act order shall be supported by a Determination
and Finding (D&F). The D&F shall state that--
(1) Use of an interagency acquisition is in the best interest of
the Government; and
(2) The supplies or services cannot be obtained as conveniently or
economically by contracting directly with a private source.
(b) If the Economy Act order requires contracting action by the
servicing agency, the D&F shall also include a statement that at least
one of the following circumstances is applicable--
(1) The acquisition will appropriately be made under an existing
contract of the servicing agency, entered into before placement of the
order, to meet the requirements of the servicing agency for the same or
similar supplies or services;
(2) The servicing agency has capabilities or expertise to enter
into a contract for such supplies or services which is not available
within the requesting agency; or
(3) The servicing agency is specifically authorized by law or
regulation to purchase such supplies or services on behalf of other
agencies.
(c) The D&F shall be approved by a contracting officer of the
requesting agency with authority to contract for the supplies or
services to be ordered, or by another official designated by the agency
head, except that, if the servicing agency is not covered by the
Federal Acquisition Regulation, approval of the D&F may not be
delegated below the senior procurement executive of the requesting
agency.
17.504 Ordering procedures.
(a) Before placing an Economy Act order for supplies or services
with another Government agency, the requesting agency shall make the
D&F required in 17.503. The servicing agency may require a copy of the
D&F to be furnished with the order.
(b) The order may be placed on any form or document that is
acceptable to both agencies. The order should include--
(1) A description of the supplies or services required;
(2) Delivery requirements;
(3) A funds citation;
(4) A payment provision (see 17.505); and
(5) Acquisition authority as may be appropriate (see 17.504(d)).
(c) The requesting and servicing agencies should agree to
procedures for the resolution of disagreements that may arise under
interagency acquisitions, including, in appropriate circumstances, the
use of a third-party forum. If a third party is proposed, consent of
the third party should be obtained in writing.
[[Page 49722]]
(d) When an interagency acquisition requires the servicing agency
to award a contract, the following procedures also apply:
(1) If a justification and approval or a D&F (other than the
requesting agency's D&F required in 17.503) is required by law or
regulation, the servicing agency shall execute and issue the
justification and approval or D&F. The requesting agency shall furnish
the servicing agency any information needed to make the justification
and approval or D&F.
(2) The requesting agency shall also be responsible for furnishing
other assistance that may be necessary, such as providing information
or special contract terms needed to comply with any condition or
limitation applicable to the funds of the requesting agency.
(3) The servicing agency is responsible for compliance with all
other legal or regulatory requirements applicable to the contract,
including
(i) Having adequate statutory authority for the contractual action,
and
(ii) Complying fully with the competition requirements of part 6
(see 6.002). However, if the servicing agency is not subject to the
Federal Acquisition Regulation, the requesting agency shall verify that
contracts utilized to meet its requirements contain provisions
protecting the Government from inappropriate charges (for example,
provisions mandated for FAR agencies by part 31), and that adequate
contract administration will be provided.
(e) Nonsponsoring Federal agencies may use a Federally Funded
Research and Development Center (FFRDC) only if the terms of the
FFRDC's sponsoring agreement permit work from other than a sponsoring
agency. Work placed with the FFRDC is subject to the acceptance by the
sponsor and must fall within the purpose, mission, general scope of
effort, or special competency of the FFRDC. (See 35.017; see also 6.302
for procedures to follow where using other than full and open
competition.) The nonsponsoring agency shall provide to the sponsoring
agency necessary documentation that the requested work would not place
the FFRDC in direct competition with domestic private industry.
17.505 Payment.
(a) The servicing agency may ask the requesting agency, in writing,
for advance payment for all or part of the estimated cost of furnishing
the supplies or services. Adjustment on the basis of actual costs shall
be made as agreed to by the agencies.
(b) If approved by the servicing agency, payment for actual costs
may be made by the requesting agency after the supplies or services
have been furnished.
(c) Bills rendered or requests for advance payment shall not be
subject to audit or certification in advance of payment.
(d) If the Economy Act order requires use of a contract by the
servicing agency, then in no event shall the servicing agency require,
or the requiring agency pay, any fee or charge in excess of the actual
cost (or estimated cost if the actual cost is not known) of entering
into and administering the contract or other agreement under which the
order is filled.
PART 37--SERVICE CONTRACTING
6. Subpart 37.2 is revised to read as follows:
Subpart 37.2--Advisory and Assistance Services
Sec.
37.200 Scope of subpart.
37.201 Definitions.
37.202 Exclusions.
37.203 Policy.
37.204 Guidelines for determining availability of personnel.
37.205 Contracting officer responsibilities.
37.200 Scope of subpart.
This subpart prescribes policies and procedures for acquiring
advisory and assistance services by contract. The subpart applies to
contracts, whether made with individuals or organizations, that involve
either personal or nonpersonal services.
37.201 Definitions.
Advisory and assistance services means those services provided
under contract by nongovernmental sources to support or improve:
organizational policy development; decision-making; management and
administration; program and/or project management and administration;
or R&D activities. It can also mean the furnishing of professional
advice or assistance rendered to improve the effectiveness of Federal
management processes or procedures (including those of an engineering
and technical nature). In rendering the foregoing services, outputs may
take the form of information, advice, opinions, alternatives, analyses,
evaluations, recommendations, training and the day-to-day aid of
support personnel needed for the successful performance of ongoing
Federal operations. All advisory and assistance services are to be
classified in one of the following definitional subdivisions:
(a) Management and professional support services, i.e., contractual
services that provide assistance, advice or training for the efficient
and effective management and operation of organizations, activities
(including management and support services for R&D activities), or
systems. These services are normally closely related to the basic
responsibilities and mission of the agency originating the requirement
for the acquisition of services by contract. Included are efforts that
support or contribute to improved organization of program management,
logistics management, project monitoring and reporting, data
collection, budgeting, accounting, performance auditing, and
administrative/technical support for conferences and training programs;
(b) Studies, analyses and evaluations, i.e., contracted services
that provide organized, analytical assessments/ evaluations in support
of policy development, decision-making, management, or administration.
Included are studies in support of R&D activities. Also included are
acquisitions of models, methodologies, and related software supporting
studies, analyses or evaluations; or
(c) Engineering and technical services, i.e., contractual services
used to support the program office during the acquisition cycle by
providing such services as systems engineering and technical direction
(see 9.505-1(b)) to ensure the effective operation and maintenance of a
weapon system or major system as defined in OMB Circular No. A-109 or
to provide direct support of a weapon system that is essential to
research, development, production, operation or maintenance of the
system.
Covered personnel, as used in this subpart, means--
-(a) An officer or an individual who is appointed in the civil
service by one of the following acting in an official capacity:
(1) The President;
(2) A Member of Congress;
(3) A member of the uniformed services;
(4) An individual who is an employee under 5 U.S.C. 2105;
(5) The head of a Government-controlled corporation; or
(6) An adjutant general appointed by the Secretary concerned under
32 U.S.C. 709(c).
(b) A member of the Armed Services of the United States.
(c) A person assigned to a Federal agency who has been transferred
to another position in the competitive service in another agency.
37.202 Exclusions.
The following activities and programs are excluded or exempted from
the
[[Page 49723]]
definition of advisory or assistance services:
(a) Routine Federal information processing services unless they are
an integral part of a contract for the acquisition of advisory and
assistance services.
(b) Architectural and engineering services as defined in the Brooks
Architect-Engineers Act (Section 901 of the Federal Property and
Administrative Services Act of 1949, 40 U.S.C. 541).
(c) Research on theoretical mathematics and basic research
involving medical, biological, physical, social, psychological, or
other phenomena.
37.203 Policy.
(a) The acquisition of advisory and assistance services is a
legitimate way to improve Government services and operations.
Accordingly, advisory and assistance services may be used at all
organizational levels to help managers achieve maximum effectiveness or
economy in their operations.
(b) Subject to 37.205, agencies may contract for advisory and
assistance services, when essential to the agency's mission, to--
(1) Obtain outside points of view to avoid too limited judgment on
critical issues;
(2) Obtain advice regarding developments in industry, university,
or foundation research;
(3) Obtain the opinions, special knowledge, or skills of noted
experts;
(4) Enhance the understanding of, and develop alternative solutions
to, complex issues;
(5) Support and improve the operation of organizations; or
(6) Ensure the more efficient or effective operation of managerial
or hardware systems.
(c) Advisory and assistance services shall not be--
(1) Used in performing work of a policy, decision-making, or
managerial nature which is the direct responsibility of agency
officials;
(2) Used to bypass or undermine personnel ceilings, pay
limitations, or competitive employment procedures;
(3) Contracted for on a preferential basis to former Government
employees;
(4) Used under any circumstances specifically to aid in influencing
or enacting legislation; or
(5) Used to obtain professional or technical advice which is
readily available within the agency or another Federal agency.
(d) Limitation on payment for advisory and assistance services.
Contractors may not be paid for services to conduct evaluations or
analyses of any aspect of a proposal submitted for an initial contract
award unless--
(1) Neither covered personnel from the requesting agency, nor from
another agency, with adequate training and capabilities to perform the
required proposal evaluation, are readily available and a written
determination is made in accordance with 37.204;
(2) The contractor is a Federally-Funded Research and Development
Center (FFRDC) as authorized in Section 23 of the Office of Federal
Procurement Policy (OFPP) Act as amended (41 U.S.C. 419) and the work
placed under the FFRDCOs contract meets the criteria of 35.017-3; or
(3) Such functions are otherwise authorized by law.
37.204 Guidelines for determining availability of personnel.
(a) The head of an agency shall determine, for each evaluation or
analysis of proposals, if sufficient personnel with the requisite
training and capabilities are available within the agency to perform
the evaluation or analysis of proposals submitted for the acquisition.
(b) If, for a specific evaluation or analysis, such personnel are
not available within the agency, the head of the agency shall--
(1) Determine which Federal agencies may have personnel with the
required training and capabilities; and
(2) Consider the administrative cost and time associated with
conducting the search, the dollar value of the procurement, other
costs, such as travel costs involved in the use of such personnel, and
the needs of the Federal agencies to make management decisions on the
best use of available personnel in performing the agency's mission.
(c) If the supporting agency agrees to make the required personnel
available, the agencies shall execute an agreement for the detail of
the supporting agency's personnel to the requesting agency.
(d) If the requesting agency, after reasonable attempts to obtain
personnel with the required training and capabilities, is unable to
identify such personnel, the head of the agency may make the
determination required by 37.203.
(e) An agency may make a determination regarding the availability
of covered personnel for a class of proposals for which evaluation and
analysis would require expertise so unique or specialized that it is
not reasonable to expect such personnel to be available.
37.205 Contracting officer responsibilities.
The contracting officer shall ensure that the determination
required in accordance with the guidelines at 37.204 has been made
prior to issuing a solicitation.
PART 49--TERMINATION OF CONTRACTS
49.603-1 through 49.603-4 [Amended]
7. Sections 49.603-1(b)(7)(i), 49.603-2(b)(8)(i), 49.603-
3(b)(7)(i), and 49.603-4(b)(4)(i)) are amended by removing the phrase
``, and regulations made implementing 10 U.S.C. 2382, as amended, and
any other'' and inserting ``any'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
8. Section 52.209-7 is amended by revising the date of the clause
and paragraph (a)(1)(i) to read as follows:
52.209-7 Organizational Conflicts of Interest Certificate--Marketing
Consultants.
* * * * *
Organizational Conflicts of Interest Certificate--Marketing Consultants
(Oct 1995)
(a) * * *
(1) * * *
(i) Services excluded in subpart 37.2;
* * * * *
[FR Doc. 95-23865 Filed 9-25-95; 8:45 am]
BILLING CODE 6820-EP-P
