Todd Davis

The FAR specifically specifies who is "the appointing authority" and there is not a list of other positions or titles that have such authority. So for a CO to have authority to designte another as a CO, they would have to be designated as an appointing authority within their agency. Now I supposed that an agency could specify that any CO is also considered an appointing authority in their policy, but that doesn't sound like a good way to control the appointment of contracting officers.

FAR Subpart 1.6 uses the term "appointing official." That is the person(s) who appoints COs in writing on an SF 1402. The appointing official may or may not be a CO. Even if he or she is a CO, they are not exercising their CO authority, but rather the appointment authority delegated to them by their agency.

Very strange. Only contracting officers can enter into and sign contracts on behalf of the Government and must be appointed in accordance with FAR 1.603 unless and HCA or above. The appointing authority must give the contracting officer clear instructions regarding the limits his or her authority and the appointment must be in writing on a SF 1402. A contracting officer cannot appoint another person as a contracting officer or delegate their authority to sign a contract, unless that CO is also the appointing authority for your office. ------------- "Contracts may be entered into and signed on behalf of the Government only by contracting officers." (FAR 1.602) "Contracting officers below the level of a head of a contracting activity shall be selected and appointed under 1.603." (FAR 1.602) "Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers’ authority shall be readily available to the public and agency personnel." (FAR 1.602-1) "Contracting officers shall be appointed in writing on an SF 1402, Certificate of Appointment, which shall state any limitations on the scope of authority to be exercised, other than limitations contained in applicable law or regulation." (FAR 1.603-3)

Very strange.

I still don't understand the concern with being antideficient and a release of claims isn't necessary. Simply have the contractor sign a bilateral deobligation modification agreeing that the funds are no longer needed and the remaining obligation amount is sufficient for all invoices paid or pending. Even if an unexpected claim is received at a later date, that alone is not a sufficient basis to leave excess funds on a contract nor would no longer having funds obligated cause an Antideficiency Act violation. Excess unliquidated obligations are also an issue of concern in the agency I work for, as it should be. If a recorded obligation is in excess of what is needed then it should be adjusted at the time it is known and not wait until closeout. Obligations are not supposed to be over or under recorded. Also, if deobligated timely, single year and multi-year funds may be reobligated for other contracts during their period of availability. The total of excess open obligations can be very significant across an entire agency, some of which could be put to good use, especially with budgets continuing to shrink.

I know what the Antideficiency Act is. I'm trying to understand your question. What violation are you concerned with in the context of a deobligation modification at closeout?

I don't understand the question.

1) Unless the contract clause requires a release of claims, which should be provided with the final invoice, the contractor is not required to sign a release. There is no requirement in the FAR for a release to be part of a modification to deobligate excess funds. I wouldn't make a practice of doing so, primarily because the contract does not require it and it is usually unnecessary. 2) Only if the contract contains a clause permitting unilateral deobligation of funds. Commercial item contracts require all changes in the terms and conditions of the contract to be "made by written agreement of the parties" (52.212-4(c)). Price is a term of the contract, so for commercial items contracts both parties would have to agree to the change unless some other term in the contract permits the CO to do so unilaterally. 3) I'm not familiar with the DD form and processes.

If FAR 22.1003-6 does not apply, the following may help you. It is not a matter of whether or not your requirement is a supply or service, but whether or not the Service Contract Labor Standards (SCLS) statutes apply. "Micropurchase threshold" is defined at FAR 2.101 and is $3,500 for services, unless the SCLS statutes apply. FAR 22.1003-1 states "This subpart 22.10 applies to all Government contracts, the principal purpose of which is to furnish services in the United States through the use of service employees, except as exempted in 22.1003-3 and 22.1003-4 of this section, or any subcontract at any tier thereunder. This subpart does not apply to individual contract requirements for services in contracts not having as their principal purpose the furnishing of services. The nomenclature, type, or particular form of contract used by contracting agencies is not determinative of coverage." Below are some excerpts from guidance that I have used in the past that may help you. --------------- The SCLS apply to all Federal contracts where, “the principal purpose of which is to furnish services in the United States through the use of service employees” (FAR 22.1003-1). The SCLS apply only when all of these criteria are met. Review statutory and administrative exemptions only if the contract first meets these coverage criteria. Principal Purpose If the principal purpose of the contract is for services, then the SCLS may apply. If the contract is mainly for construction or supplies then SCLS do not apply. Services involve time and effort performing a service, as opposed to furnishing an end product. The SCLS cover most maintenance and repair of equipment and machinery (see FAR 22.1003-6). The DOL regulations state that “The proportion of labor cost to the total cost of the contract and the necessity of furnishing or receiving tangible non-labor items in performing the contract obligations will be considered, but are not necessarily determinative.” The DOL regulations go on to state that “…no hard and fast rule can be laid down as to the precise meaning of the term ‘principal purpose’….” The regulations also cite Congressional intent to include “…those contracts which have as their principal purpose the procurement of something other than the construction activity described in the Construction Wage Rate Requirements statutes (40 U.S.C. chapter 31, subchapter IV; formerly known as the Davis-Bacon Act) (CWRR) or the materials, supplies, articles and equipment described in the Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000 statutes (41 U.S.C. chapter 65) (formerly known as the Walsh-Healey Public Contracts Act).” This language makes it clear that any contract that is not principally for construction (covered by the CWRR statutes) and/or for supplies (covered by 41 U.S.C. chapter 65) will likely be construed as being principally for services. In the United States Only services to be performed “in the United States” require SCLS coverage. For SCLS purposes, the term “United States” includes the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf Lands, American Samoa, Guam, Wake Island, the Northern Mariana Islands, and Johnston Island. On contracts performed both inside the U.S. and outside the U.S., the SCA applies only to the portion of the contract performed inside the U.S. Service Employees Contract work must be performed by “service employees” for the SCLS to apply to the contract. “Service employees” (as defined at FAR 22.1001) are persons performing service contract work as hourly-paid non-exempt workers. The term excludes bona fide executive, administrative, or professional employees who meet the exemption criteria set forth in 29 CFR 541. A DOL fact sheet providing more detail on these exceptions can be found at http://www.dol.gov/whd/overtime/fs17a_overview.pdf. These exemptions often include, but are not limited to professionals (engineers, doctors, etc.), executives (upper level managers), or administrators (personnel directors, etc.). Note that highly skilled technicians and lower level supervisors would normally not qualify for exemption. If the contract will involve significant or substantial use of service employees, or their use will constitute more than a minor factor in contract performance, SCLS should be included if no exemption is applicable. See 29 CFR 4.113(a)(3). DOL generally considers 20% of the workforce to be substantial (SCLS), and 10% or less to be a “minor factor” (no SCLS). SCLS coverage where service employees are in between 10 and 20% can hinge on the actual number of employees, and may require consultation with DOL. Even if SCLS are applied to the contract, the SCLS protections will apply to the service employees, only. If the contract services will be performed personally by the contractor, and the Contracting Officer knows when soliciting or concluding negotiations that service employees will in no event be used by the contractor in providing the contract services, it is not necessary to include SCLS clauses or a wage determination. Thus, certain contracts performed by individuals such chapel organists, financial counselors, test proctors, etc. may not be subject to the SCLS. However, the subsequent contract should be written to ensure that the work is performed personally and not by an employee or service worker. If SCLS applicability remains uncertain after reading the applicability of the Act at 29 CFR, Part 4, Subpart C, then consult the U.S. Department of Labor (DOL), Wage and Hour Division (WHD), Field Operations Handbook, Chapter 14 which relates to applicability of SCA. The handbook can be accessed at http://www.dol.gov/whd/FOH/index.htm. In addition to providing more background on applicability, it also provides interpretations of applicability for certain types of requirements such as surveying, demolition, disaster relief contracts, drilling work, and maintenance. If the SCLS does not apply then it should be determined if the CWRR apply. If not, then neither may apply.

That is the last one that I've seen distributed through the agency I work for.

Thank you both for the feedback/information.

Is it possible to transfer an existing/active contract from one agency to another? If so, is there a specific procedure that applies? The scenario is that an existing contract is managed by Agency A, but benefits both Agency A and Agency B. Agency B reimburses Agency A. Now it is desired to have Agency B manage the contract that will continue to benefit both agencies and Agency B would be reimbursed by Agency A. I have not started researching this topic yet, but wanted to see if anyone else has any knowledge or experience with this.

Statutory Goals Established by Federal Executive Agencies The Fiscal Year 2017 Agency Prime and Subcontracting Goals for 24 CFO Act Agencies are listed at the link above.

"Ratification" "means the act of approving an unauthorized commitment by an official who has the authority to do so" (FAR 1.602-3). What you are asking is whether or not it should be considered an unauthorized commitment which is "an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government" (FAR 1.602-3). To answer the question ask yourself did someone make a commitment to the contractor. If so, who was it and did they have authority to contract.

FAR 17.207(f) states "Before exercising an option, the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option, the requirements of this section, and Part 6" (emphasis added). Options must be exercised in strict accordance with their terms. When exercising this unilateral right, the clauses does not give the CO the authority to unilaterally change other terms in the contract, unless a separate clause gives the CO such a right. If you want to change other terms, do so prior to or after the option is exercised through a bilateral modification.

Agencies have different policies. Some use the approved SF-182 as the obligating document and have their FM office obligate funds and make payment from that obligation by EFT. It does not go through contracting or a purchase cardholder. If it does go through a non-warranted cardholder, the question is whether or not the SF-182 is the obligating document. If it is the obligating document, the cardholder is then only using their card as a payment method, not as a contracting method. I would recommend checking your agency policy regarding who can process payment using a purchase card. Some agencies limit this to contracting officers. Whether it is process as one payment or multiple payments should not be an issue with regarding to breaking down requirements in violation of FAR 13.003(c)(2). If the cardholder is making the purchase (obligation) and payment then breaking down the transaction would run afoul of FAR 13.003. Also, I did some research on the whole issue of using SF-182's vs contracting processes and looked into the OPM guidance, which is no longer their latest guidance last time I checked. Their latest guidance says to contact contracting and I don't think folks can rely on OPMs prior guidance in an archived handbook. See the following thread where I discussed this issue in more detail.

You've probably seen it already, but I just received a notification of recent PL issuances. It is Public Law 114-328.

1.60 is the wrong section. The section you need is 1.6049-4. Below is a link to where it can be found. http://www.ecfr.gov/cgi-bin/text-idx?SID=faa47e0e5780f17b53550ce523bd0a43&mc=true&tpl=/ecfrbrowse/Title26/26cfr1o_main_02.tpl

I also get a timeout message for the Hill Farsite. I'm looking at the DPAP website and it shows the latest version being 12/22/2016. I think the 10/15/2009 date your are seeing is the date the table of contents was last revised. Each of the subparts has it's latest date listed at the top. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/ I assume you are trying to search the entire document at once. It appears there is no such option. However, you can download the DFARS in three separate pdf files by licking on the yellow folder in the upper right hand corner. From there you can take the three separate files and should be able to combine them using Adobe Acrobat. The files are Parts 201-225, 226-251, and 252 through Appendix I. You can do a keyword search in Adobe.

This GAO decision should be helpful (CMS Information Services, Inc., B-290541, August 7, 2002). FAR 8.405-5(b) states "Ordering activities should rely on the small business representations made by schedule contractors at the contract level." However, as explained in the GAO decision, that does not prohibit the CO from requesting recertification at the order level. Also, you could check with the GSA CO and see what they have to say. I suspect the size status listed on the GSA website is based on the primary NAICS code for the contract. Regardless, I would consider having all firms quoting, recertify their business size for the appropriate NAICS code related to the supply/service being acquired. So long as the firm certifies its is a small business, the item acquired is within the scope of the contract, and the NAICS code used is appropriate, it would be okay for them to be considered for award under a set-aside. On a related note, if the GSA contract is coded as "other than small", you may have an issue getting credit towards small business goals.

Corporations are often, but not always publicly held (publicly traded). I haven't researched the matter much, but I believe other types of business entities (e.g. LLC, LLP, sole proprietorship, etc) are not generally publicly held/traded, but may sometimes be made up of multiple owners (e.g. partnerships). My interpretation of the provision is that it is referring to a shareholder or beneficial owner of 1) a publicly held corporation or 2) any other entity (not necessarily one that is publicly held). If the author meant for the term to apply to other publicly held entities (assuming such things exist), it would have been more clear to state "publicly held corporation or entity." Instead the words "or other entity" were used. So long as the lease is for the general benefit of the publicly held corporation or general benefit of the other entity, I think the exception may apply. In other words, maybe the restriction is concerned with a single person (shareholder/beneficial owner) solely benefiting, rather than they entity (whatever kind it may be) benefiting generally. If the other entity was a sole proprietorship, then I don't think the "general benefit" exception could apply.

I find Formation of Government Contracts and Administration of Government Contracts (Cibinic & Nash) very useful. While I prefer a book version, I can see the benefit from being able to do keyword searches for terms.

Someone else posted this in a different thread. Was part of the press release from GSA yesterday and I didn't see it mentioned in this thread. Not sure if this exception applies to the entity in question. https://www.gsa.gov/portal/content/153578 The full language of section 37.19 is below: No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom; provided, however, that this provision shall not be construed as extending to any Person who may be a shareholder or other beneficial owner of any publicly held corporation or other entity, if this Lease is for the general benefit of such corporation or other entity (emphasis added).

I don't believe the fact that some reps and certs are listed in SAM automatically incorporates them into a solicitation or resultant contract. Instead, it is the use of the appropriate provisions listed in the solicitation that incorporates specific provisions, which may include those completed in SAM. Solicitations for other than commercial items use provision 52.204-8, Annual Representations and Certifications. When provision 52.204-7, System for Award Management, is also used, paragraph (d) of the -8 provision applies. It states that the reps and certs in SAM "as of the date of this offer..." "are incorporated in this offer by reference." The provision allows the offerors the opportunity to submit changes in writing with the offer to what is listed in SAM at the time the offer is submitted. Commercial item solicitations use 52.212-3 Offeror Representations and Certifications—Commercial Items. Paragraph (b)(2) of that provision has the same language. The provision also allows the offerors the opportunity to submit changes in writing with the offer to what is listed in SAM at the time the offer is submitted. Also, it is the use of clause 52.204-19 Incorporation by Reference of Representations and Certifications, or 52.212-4 Contract Terms and Conditions—Commercial Items, (paragraph v) that incorporates the reps and certs into the resultant contract.

Not sure if this helps. To be a commercial item, the item need only meet the definition of "commercial item" at FAR 2.101. That definition includes items of a type "customarily used by the general public..." and having been sold... or offered for sale to the general public. Inherently, that means the item needs to be available to the public to meet the definition of a commercial item at paragraph (1), unless one of the other types of commercial items described in the other paragraphs within the definition is being acquired and doesn't require availability (e.g. paragraph (3)(ii)). The term COTS is not used in the definition. The definition of "COTS item" not only requires the supply item be a commercial item (as defined at FAR 2.101), but it also must meet two other elements of the definition. One of these elements requires it to be "sold in substantial quantities in the commercial marketplace," meaning it would need to be commercially available. The term "commercially available" is even part of the acronym "COTS."