Procurement Information Circular
DEVIATION TO NFS 1842.270, APPOINTMENT OF CONTRACTING OFFICER TECHNICAL REPRESENTATIVES
PURPOSE: This PIC is a class deviation to NFS 1842.270 to allow the appointment of Intergovernmental Personnel Act detailees as contracting officer technical representatives. It also establishes procedures for appointing an Intergovernmental Personnel Act detailee as a contracting officer technical representative (COTR).
BACKGROUND: NFS 1842.270(a) states the cognizant contracting officer (CO) may appoint a qualified Government employee to act as the CO’s representative in managing the technical aspects of a particular contract. The Government employee could be a NASA civil servant, a member of the military, or a civil servant from another Federal agency. The Intergovernmental Personnel Act (IPA), 5 U.S.C. 3374, authorizes the temporary assignment of employees of universities, state/local/tribal governments, and certain non-profit organizations to NASA. Individuals working for NASA as IPA detailees are not Government employees--they remain employees of their home institution.
NASA has restricted COTR appointments to Government employees because federal guidelines, such as those found in FAR 7.503, state some of the COTR functions are inherently governmental functions and must be performed by Government employees. However, while some COTR duties are currently included as inherently governmental functions, other functions COTRs perform are not reserved for Governmental employees. Given this mix of functions, this PIC authorizes IPA detailees to be appointed as COTRs so long as they are not delegated any inherently governmental functions to perform.
It should be noted, the Office of Federal Procurement Policy is reviewing the definition of an inherently governmental function and proposing new policy in this area. The results of their review will result in revised Governmentwide policy on determining which functions must be performed by Government employees. Should the new guidance determine all COTR functions are inherently governmental, this PIC will be rescinded.
Another issue related to appointing IPA detailees as COTRs concerns standards of conduct. The Office of Government Ethics (OGE) amended the Standards of Ethical Conduct for Executive Branch Employees (Standards) to clarify that all of the Standards’ provisions apply to individuals serving on detail to Federal agencies under the IPA. The Standards include, but are not limited to financial conflicts of interest, restrictions on representation, political activities, gifts from prohibited sources, and drug and alcohol abuse. Most IPA detailees are not familiar with the Federal ethics standards. It is crucial that they understand how the Standards apply and that they have no conflicts of interest if they are to serve as COTRs.
GUIDANCE: The cognizant contracting officer may appoint an IPA detailee as a COTR, under the following conditions:
(1) The Center counsel has verified the detailee has no conflicts of interest involving the COTR duties under the contract(s);
(2) The detailee has completed training in the Standards of Ethical Conduct for Employees of the Executive Branch; and
(3) The contracting officer has modified NASA Form 1634 to prevent the delegation of inherently governmental functions to the IPA detailee. This includes functions such as approving contractual documents, accepting deliverables, or obtaining certified funds. FAR 7.503(c) provides a list of examples of functions considered to be inherently governmental functions or which shall be treated as such.
All other requirements set forth in NFS 1842.270, e.g., COTR training and certification, apply to IPA detailees appointed as COTRs.
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until final policy is implemented in the NFS.
HEADQUARTERS CONTACT: Marilyn Chambers, Office of Procurement Contract Management Division, (202) 358-5154, email: email@example.com.
William P. McNally
Assistant Administrator for Procurement