Krimz

I realize this is an old thread, but my agency is doing exactly this. I email a DUNS number to specific email address and within 20-30 min. receive a Contractor's Responsibility Assessment that consolidates SAM Registration, FAPIIS, Reps & Certs, etc.

Thanks, Don. I’ll definitely check those out.

Thanks for taking the time to explain it to me. I believe I have a way forward that will satisfy myself & my customer.

Btw, I sent you a PM with more details.

I do want our agency to be successful, that's for sure. My final question is, what is the difference in a labor-hour contract for 2080 hours, and a FFP contract for 2080 hours, both having identical SOWs? That's what's confusing me, and I am only just realizing that. I know what FFP is, and think if we defined exactly what the contractor was expected to do with defined quantities and deliverables, I can see how FFP would be appropriate whether the contractor proposes an hourly or each (task) UOM. But our SOW is open-ended, and since the UOM is based on hours worked, I don't see how that can not be a personal service, or at the very least, a LH contract. I do not have experience with LH contracts, but I am told they are administratively burdensome on everyone involved, and that's why my agency does not do them. Because we do not have the resources to administer them. Like I said, most of these began strictly as emergency temporary hire contracts NTE 120 days, and then after that approval was received, the contract was awarded as base + 4. The contractor employee shows up to work, we give them an ID card, logical access to the building, a government computer, and the COR assigns their workload directly to them on a weekly basis. In some cases the COR reviews timesheets and almost always approves leave. We have several new employees who only learned after an entire year of working here that some of their "co-workers" area actually contractors.

FAR 37.104 Like I said before, this isn't a pass/fail test, but the contracts in question tick almost every single box in FAR 37.104.

That is exactly what is happening with these contracts. A very apparent employer-employee relationship has been established, and I do not know any other way to structure this contract so as to avoid that. There are other details that I can't share here that I am sure would make this much more clear, but I think based on what I've given so far, it's pretty clear these are LH or personal service contracts, and should not be FFP. Maybe I'm wrong. As for FAR 37.112, that's exactly how some of these contracts began, as NTEs for 120 days. These required approval at a very high level (I don't have the document in front of me, but they were Agency level approvals iirc). The problem is, once the approval for temporary hire services was approved, the CO drafted the contract for base + 4, and now that's the way they are all drafted... base + 4. If they are not temporary, they become personal services... Not only are they not temporary, but they are recurring, every five years. I'm not trying to be a stick in the mud, I am just up against a wall and I do not know where to go. For convenience: 37.112 Government use of private sector temporaries. Contracting officers may enter into contracts with temporary help service firms for the brief or intermittent use of the skills of private sector temporaries. Services furnished by temporary help firms shall not be regarded or treated as personal services. These services shall not be used in lieu of regular recruitment under civil service laws or to displace a Federal employee. Acquisition of these services shall comply with the authority, criteria, and conditions of 5 CFR Part 300, SubpartE, Use of Private Sector Temporaries, and agency procedures. Edit: I think security (or any of these services) can be contracted for so long as the authority to do so is available. My Agency does not have that authority. Some agencies do, I do know that. But we do not.

jl20874, out of curiosity, what do you consider a personal service? We can state service contracts in terms of outcomes, but the FAR is pretty clear that personal service contracts are prohibited unless authorized by statute, which they are not in my organization. I'll try to find the law referenced in the FAR and by our HR that states circumventing the hiring process is illegal. Some of these started as temporary personal service contracts NTE to 120 days, and then grew into base + 4 contracts, which was expressly prohibited. Maybe I have a different definition of personal service than most, but the positions we are talking about here are professional in nature, and impact directly the agency's mission. Using your example of receptionist, something we are expected to do is structure the contract in terms of tasks/deliverables. So, in the case of a receptionist, they would be expected to perform 100 tasks per week. We do not define what a task is and that's part of the problem, so how does the contractor know how to quote? When we administer these as task-based, and the contractor asks for a definition of task, and we can't give it to them, it causes major issues. The only other option is to run it as a personal service contract, which is prohibited. And I'm not a "loser," but I'm not comfortable contracting for prohibited services. I know support service contracts can be legal, I'm trying to figure out how to set it up, legally. Contracting for a personal service is expressly prohibited according to the FAR.

Because they are attempting to contract for a position that parallels a government employees PD. And they explained to me that they’ve tried hiring a federal employee to do the work, but they can’t get certain approvals, so that they will need to contract for this person. I’m fine with contracting for performance based acquisition and defining the need in terms of required results/deliverables, but that’s not what my customer wants. They want an employee that they can assign work to on an as-needed basis. They tick almost every box for FAR 37.104(c)(2)(d): (d) The following descriptive elements should be used as a guide in assessing whether or not a proposed contract is personal in nature: (1) Performance on site. (2) Principal tools and equipment furnished by the Government. (3) Services are applied directly to the integral effort of agencies or an organizational subpart in furtherance of assigned function or mission. (4) Comparable services, meeting comparable needs, are performed in the same or similar agencies using civil service personnel. (5) The need for the type of service provided can reasonably be expected to last beyond 1 year. (6) The inherent nature of the service, or the manner in which it is provided, reasonably requires directly or indirectly, Government direction or supervision of contractor employees in order to- (i) Adequately protect the Government’s interest; (ii) Retain control of the function involved; or (iii) Retain full personal responsibility for the function supported in a duly authorized Federal officer or employee. (e) When specific statutory authority for a personal service contract is cited, obtain the review and opinion of legal counsel. (f) Personal services contracts for the services of individual experts or consultants are limited by the Classification Act. In addition, the Office of Personnel Management has established requirements which apply in acquiring the personal services of experts or consultants in this manner (e.g., benefits, taxes, conflicts of interest). Therefore, the contracting officer shall effect necessary coordination with the cognizant civilian personnel office. While this isn’t strictly a pass/fail test, taken all together, these are, by definition personal services. In many cases, the customers are telling the contractor who to hire, and often it’s a retired employee of the agency. Many COs in my office agree, and we are trying to navigate a complex political environment while also providing our customers with the support they need. edit: COs are not an HR specialist, and so I think we shouldn’t be responsible for contract-hiring for these departments.

Asking them to provide a receptionist is exactly what I am trying to avoid. To me, that is very clearly a personal service.

I'm fine with a broad scope as long as it can be administered without much CO intervention. We've been told that labor-hour contracts will not be approved, so that we should treat them as FFP and do our best to structure them so. I'm just not sure how to do that since LH and FFP are polar opposite contract types.

I'm not saying we can't contract for these services, but I don't see how an open-ended contract for undefined services meets the definition of FFP: In the scenario at hand, these contracts are not actually FFP because they are open-ended. How can the contractor provide an FFP quote unless we define exactly what work/tasks will be required? The only way I know to structure a contract for this kind of requirement is to go the labor-hour route, which I'm told we will not receive approval for. I asked my customer to re-work their SOW so that it addressed a specific, well-defined project. They say that will be difficult, that the contractor will be expected to do work that is not explicitly stated in the contract. For example, I wouldn't issue a janitorial service contract that would allow for the COR to assign additional buildings/rooms/bathrooms over the course of the year. And if I did solicit something like that, how would the contractor provide a FFP quote? Definitely not trying to be a stick in the mud, and in the end, I have to provide my customer a solution, I'm just afraid my solution will not be seen as a viable one.

Hello Wifcon, I'm a specialist at a civilian agency, and, along with a few colleagues, I continue to come across "support service" contracts that are being administered inappropriately. I'd rather not be too specific for obvious reasons, but I'll do my best to lay this out in as helpful a manner as possible. My goal is to find a way to get my customers what they need, as difficult (or sometimes impossible) as that may be. The current scenario is this: the service contracts in question are essentially open-ended labor-hour contracts (2080 hours annually, no specific tasks or project), without the necessary approvals, and without the necessary administrative protocols/tracking of hours & work (I'm not familiar with labor-hour contract administration requirements, but I know they are more burdensome than what we are seeing on these contracts). I've found on several contracts that I've reviewed myself, the CORs are assigning workload directly to the contractor's employees on a weekly basis, and several CORs have explicitly stated that these contracts are necessary because they either cannot hire someone to do the work, or they cannot get approval for the position on their organizational chart (they are circumventing the hiring process). My assignment at this point is to structure these contracts so that the work can be completed in a way that does not violate any regulations or laws. The only way that I know of to draft a contract that satisfies my customer's need (without violating any laws and regulations) is to define exactly the work/tasks/services that is required, and to avoid language like, "services required include, but are not limited to the following..." That is actual language found in current/previous contracts. My problem is that my customer wants a base + four, but does not know exactly at this time what work is required. I'm thinking that a base + four is an impossible ask. Whether I structure this as a task-based contract or a labor-hour contract, my customer is still using this contract as a catch-all for any kind of work they need completed, essentially making it a personal services contract. Now, these kinds of support services are available through GSA, so I assume there is a correct way of setting these up. My problem is that most of us are new to our positions, and none of us have a background in services contracts. To make matters worse, the contracts that we'd typically use as examples are the exact contracts we are trying to fix.

Well, a BPA call becomes binding. A BPA never is binding.

Thanks for the suggestion. It's a good read, and it really confirms my own thoughts. That said, I've just come across a BPA against which I am authorized to place calls with a per-call limit of $1,000,000, which does not require synopsis. I do not have all the details on how it was established, but I know of no procedures that would allow me to circumvent the synopsis requirement of 5.201.

I consider a call a contract action because it triggers a CAR, and so to me, over $25k, it must be synopsized. I guess what really matters is 1) whether or not your boss is okay with forgoing the synopsis over $25k, 2) whether or not your auditors are okay with you forgoing the synopsis over $25k.

If that’s the case, then why does 5.202 except TOs against IDIQs? Wouldn’t the TOs be within the scope as synopsized?

Right, Don. I was making a point in response to the people who say, “calls above $25k placed against a BPA that was awarded under competitive procedures do not require synopsis.” That’s the line I’m hearing in my office and I think formerfed mentioned it. But, just like IDIQs, awarding a BPA competitively does not exempt $25k+ calls from synopsis.

That’s initially what I thought myself, but then why is there an exception for TOs cut from IDIQs? Because the IDIQ was synopsize and competed as well.

I think the only exceptions at FAR 5.202 are for IDIQs or contracts. So, technically, none of them.

I understand the benefit of authorized callers on BPAs, but my agency, so far, has not authorized callers on any of our BPAs. Before I arrived I think none of the COs even knew you could. If we can award calls without synopsizing, I’d say the BPA’s worth the effort. If we have to synopsize everything above $25k, why not just synopsize and forgo the BPA? I hadn’t seen the GAO’s DEA decision and haven’t had a chance to read it yet, but I will. That may answer many of my questions.

Personally, I do not understand the point of BPAs except to authorize not-warranted individuals to place calls. Calls over $25k would have to be synopsized anyway; and under $25k you need only three quotes, for which you do not need a BPA, but can solicit oral quotes. But then I see FAR 13.303-5(b) Purchase under BPAs which states, " So, how would you place a call up to the SAT without synopsizing to the GPE? I don't think you can. Does that mean you must issue a proper solicitation for a priced BPA and then evaluate vendors? And if you're contemplating orders up to the SAT (or $7 million for commercial items), what is the benefit of a BPA over an IDIQ? The above questions are not directed at anyone person, but I'll be happy to hear responses.

Thank you!

Thanks formerfed. As far as I know, our agency guidance is silent on "authorized individuals," so I assume that means I would receive pushback if I tried to authorize an individual to place calls against my BPA.

Good morning Wifcon, I read the FAR and my agency’s supplement until I was blue in the face, but I can’t find any guidance on order/dollar thresholds for Authorized Callers on de-centralized BPAs. I seem to recall in my AF days that our CE folks had $25k limits. I’m not sure if they had a special kind of warrant (Not likely as they were not 1102s), or if the CO’s authorization was enough. Maybe they had a special-use GPC increase? Any and all insights would be appreciated.