07-02

Procurement Information Circular


February 28, 2007

ACQUISITION OF SERVICES

PURPOSE:  To remind contracting personnel to comply with existing requirements when awarding service contracts, especially for advisory and assistance services, and to provide guidance on identifying appropriate advisory and assistance services, inappropriate personal services, and competitive sourcing requirements.

BACKGROUND:  Multiple NASA centers have inconsistently implemented the services acquisition policy in various parts of the FAR (e.g. 7.3, 7.5, 37.1) and OMB Circular A-76 on issues such as personal services, service contracting (especially advisory and assistance services), and commercial activities.
 

GUIDANCE: 

1.  For services acquisitions, the requiring office is required to submit the following for CO review as early as possible in the acquisition planning process, but no later than initiation of PR processing:

a.       A written determination, as required by FAR 7.503(e), that none of the Statement of Work (SOW) tasks are inherently governmental activities.  Specific examples of inherently governmental functions include binding the United States to take or not to take some action, selecting program priorities, and providing direction to Federal employees. (See the definition at FAR 2.1, and the policy at FAR 7.503 and OMB Circular A-76);

b.      Confirmation that the services to be contracted are not presently being performed, nor were most recently performed, by government employees.  Contracting out for activities performed by civil servants requires a public-private competition.  (See OMB Circular A-76);

c.       Confirmation that the requirement, even if the services requested are not inherently governmental, is consistent with OMB Circular A-76 guidance.  For example, services which NASA often needs to retain for performance by government employees include the following:

                                 i.            Services which directly impact NASA's assignment and accountability for risk/liability decisions (e.g., loss of life, loss of high dollar value assets, credibility exposure);

                               ii.            Activities needed to provide employees with the experiences needed to qualify them to exercise an inherently governmental function; and

                              iii.            Services that represent critical competencies which must be available long term and accessible by NASA, and are at risk of being unavailable if not performed by government employees.

d.      Assessment as to whether or not the services meet the definition of advisory and assistance services at FAR 2.1;

e.       Confirmation that the services required are not personal services.  (Personal services contracts must be specifically authorized by statute.  See also FAR 37.104 and NFS 1837.104.)  A personal services contract is characterized by an employer-employee relationship between the Government and the contractor.  Such a relationship occurs under a service contract when, as a result of the contract's terms or the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government officer or employee; and

f.        A SOW which clearly structures services so as not to lead to contractor personnel performing inherently governmental functions, or contractor personnel providing personal services.

 

   2.  When acquiring advisory and assistance services, contracting officers must:

a.       Include in the contract file the determination required by FAR 37.204 when the advisory and assistance services requires contractors to perform proposal evaluation (see also 7.103(p));

b.      Ensure compliance with the limitations on the use of indefinite-quantity contracts and requirements contracts at FAR 16.504(c)(2) and 16.503(d), respectively;

c.       Ensure that the SOW does not require contractor advice and assistance so thoroughly detailed and conclusive that it precludes exercise of government evaluation discretion.  That is, government officials must personally and independently evaluate alternatives and make their own decision.  See OMB Circular A-76; and

d.            Enter a “Y” into the advisory and assistance field in both the Contract Management Module/Prism (the field is designated “ADV/Assist Service”) and FPDS-NG (the field is designated “Advisory/Assistance Services Contract”).  However, contracting officers should not code the contract as “Y” if advisory and assistance services are incident to, and not a significant component of, the contract.  If the contract acquires a variety of services, and some of those do not meet the advisory and assistance services definition, then a “Y” coding is appropriate if more than 50 percent of the contract value is for services which do meet the definition.

 

   3.  During the performance of all service contracts, contracting officers must:

a.   Ensure that contracts for services are managed so as not to result in the performance of personal services;

b.   Remind the requiring office that contractor employees must never identify themselves as representing NASA (as opposed to being under contract to NASA), nor participate in any deliberations or meetings intended to exercise an inherently governmental function (e.g. Source Evaluation Board meetings); and

c.   Report any suspected violations of the above policies to the Procurement Officer (PO).

 

   4. Upon receiving a report pursuant to 3.c above, the PO must promptly determine whether or not there is an actual violation and, if so, correct the violation.

 

   5.  Be aware that employees of Federally Funded Research and Development Centers, which are under contract to NASA, have a special working relationship with the Government.  Contracting officials should consult FAR 35.017 for advice on service contracting with Federally Funded Research and Development Centers.

 

EFFECTIVE DATE:  This PIC is effective as dated and shall remain in effect until canceled or superseded.

 

HEADQUARTERS CONTACTS:  For issues pertaining to OMB Circular A-76, contact Diane Frazier, Office of Procurement, Program Operations Division, (202) 358-0419, e-mail: Diane.Frazier@nasa.gov.  For other issues contact Ken Sateriale, Office of Procurement, Contract Management Division, (202) 358-0491, e-mail: Ken.Sateriale@nasa.gov. 

 

 

James A. Balinskas

Director, Contract Management Division

 

Enclosure

 

 DISTRIBUTION:

  PIC List