Procurement Information Circular
March 25, 2010
GUIDANCE ON PROCESSING CONGRESSIONALLY DIRECTED ITEMS (EARMARKS) AWARDED AS CONTRACTS
FOR FISCAL YEAR (FY) 2010
PURPOSE: To provide guidance on processing earmarks included in the Conference Report (House Report 111-366, dated December 9, 2009) accompanying the “Consolidated Appropriations Act, 2010” (P.L. 111-117), enacted on December 16, 2009.
BACKGROUND: Public Law 111-117 provided FY 2010 appropriations for NASA identifying a total of 69 site-specific Congressionally-directed spending items for NASA, funded at a total of $63.0M within the Cross-Agency Support (CAS) appropriation account. The FY 2010 Consolidated Appropriations Act incorporates the earmarks specified in the Explanatory Statement, by reference, into the Act, as follows:
Provided further, That within the amounts appropriated $63,000,000 shall be used for the projects, and in the amounts, specified in the explanatory statement accompanying this Act.
NASA's Office of General Counsel has determined that this incorporation of the earmarks, by reference, satisfies the requirements of Presidential Executive Order 13457 and the FY 2010 earmarks are statutory, to the extent that they are specified in the Explanatory Statement. Thus, these earmarks are statutory if specified in Conference Report 111-366. Where the intended recipient of the earmark is not designated in the Conference Report, the recipient is not incorporated by reference into the Consolidated Appropriations Act, 2010.
GUIDANCE: All contractual actions arising from earmarks are subject to the competition requirements of procurement law and regulation.
If an earmark is within the scope of an existing contract (nature and size), the work may be added under the authority of the changes clause, and neither competition nor a Justification for Other Than Full and Open Competition (JOFOC) is required. Center Procurement Officers shall obtain and evaluate a modification proposal from the contractor, negotiate the modification, and notify OLIA. However, all FY 2010 House earmarks designated for a for-profit entity must be subject to full and open competition, per the FY10 Consolidated Appropriations Act, Division B (FY 2010 Commerce, Justice, Science and Related Agencies Appropriations Act), Title V, and Section 539.
If an earmark for a specified recipient is required in an Appropriations Act (or in a conference report expressly incorporated by reference into the Appropriation Act), and it expressly states the award is to be made without regard to the competition requirements of 10 U.S.C. 2304 (k), the award may be made without competition and without a JOFOC.
If the earmark is not within the scope of an existing contract, or the earmark does not contain the statutory language required under 10 U.S.C. 2304 (k), NASA must compete a new award or prepare a JOFOC to justify the basis for awarding the work to the earmark designee without competition.
a) Center Contracting Officer shall conduct market research in accordance with Part 10 of the Federal Acquisition Regulation (FAR) to determine whether there are multiple sources.
b) If there is no basis for a JOFOC, the earmark work must be awarded through a full and open competition.
c) The basis for a JOFOC must be one of the statutory exceptions authorized under 10 U.S.C. 2304 (c), as implemented in FAR Subpart 6.3 and NASA FAR Supplement (NFS) Part 1806.
d) The Center Contracting Officer always must determine whether the earmark designee is a “responsible” contractor under the guidance of FAR Subpart 9.1, having the technical and financial capability to perform the work, and is not excluded from eligibility for Government contracts under FAR Subpart 9.4.
e) Notices of proposed contract actions must be published, by the Center Contracting Officer, in accordance with FAR Part 5 and NFS Part 1805. Any required public notification must be done before approval of the JOFOC.
f) After a JOFOC is approved, obtain and evaluate a proposal from the earmark designee, and negotiate the new contract or out-of-scope modification to an existing contract.
g) Contract awards must be published in accordance with FAR Part 5 and NFS Part 1805.
h) All JOFOCs must be published within 14 days after contract award (except JOFOCs authorized on the basis of “unusual and compelling urgency” under FAR 6.302-2 must be published within 30 days), by the Center Contracting Officer.
If the earmark project does not fit any of the three aforementioned categories, then the award will be competed. OLIA must be notified, in advance, before awarding an earmark using a letter contract; use of a letter contract must adhere to the FAR and NFS.
Bona Fide Need assessment. FY 2010 funding for earmarks is only available for one year; it is thus imperative that implementation of these Congressionally-directed funds be expedited in order to award the contract before the funds expire on September 30, 2010. For each contract, the procurement, legal and finance offices at the Center must evaluate the structure of the contract to ensure that it complies with the bona fide need rules. The period of performance needs to be limited to the remainder of FY 2010, unless the tasks(s) documented in the statement of work can be shown to be non-severable.
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until cancelled or superseded.
HEADQUARTERS CONTACTS: Leigh Pomponio, Contract Management Division, (202) 358-0592, email: Leigh.Pomponio@nasa.gov; Paul Brundage, Contract Management Division, (202) 358-0481, email: email@example.com.
Director, Contract Management Division