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@C Culham, @formerfed - thank you both for your insight/responses!

@C Culham - in relevant part, the letter states "Please note that this appointment does not authorize the COR to... approve any actions that would result in additional charges to the agency" and outlines duties to include "regularly monitoring and tracking payments, ensuring that the total dollar value of all invoices does not exceed the total contract value..." This is standard COR letter language at the agency.

Hello, WIFCON Community! Do you all consider the following scenario an unauthorized commitment and, thus, requiring a ratification to authorize payment? *A not-to-exceed (NTE) $30,000 task order is in place for labor-hour services. * The COR authorizes the Contractor to work beyond the $30,000 in obligated funds, which the Contractor performs and invoices for payment. I believe the scenario represents the COR committing an unauthorized commitment and would require a ratification in accordance with the FAR 1.602-3 process. Even if there is language in the task order noting the Contractor performs at its own risk past the NTE amount, I believe the COR still committed an unauthorized commitment since he/she directed the Contractor to perform beyond obligated funding. Once the ratification is approved (assuming all the conditions in FAR 1.602-3 are met), the Contracting Officer can modify the contract to obligate additional funding. Does this sound right?

@C Culham - thank you for the additional insight. The “effective date” point is a great one to make.

@Retreadfed - thank you for the quick response. That is what I am finding and I see that agencies have not taken it upon themselves to expressly state that COs are required to do so in their respective supplements/procedures. I would prefer to not have that written into my agency’s procedures.

Hello, WIFCON Community! Does anyone know if there is a specific regulation, law, case law, etc. that expressly prohibit a Contracting Officer signing a contract modification (or award) after the established period of performance start date? Is there any substantial consequence from this happening? From my research of the FAR and other agency supplements (as well as this website) I could not find any language that prohibits such an action or delves into the consequences, but Contracting Officers follow the inherent logic that they sign a contract action before or on the day of a performance start. We are receiving pushback from audit personnel because a Contracting Officer signed a modification after the period of performance started; they believe we should update our internal procedures to state that "Contracting Officers shall sign contract actions prior to their period of performance start," but I think that is unnecessary/overkill. I have not seen any other agency supplement that specifically states something to that effect (and the term "period of performance" itself is not a defined term in the FAR, etc.). Thank you!

@Vern Edwards @C Culham @formerfed thank you all for your insights! And Happy Thanksgiving!

Hi, C. Culham. Thank you for your perspective. My agency policy does state that an individual needs to be certified (unless if a waiver is approved and a plan is in place to eventually be certified) to be appointable as a COR. However, it is silent on any true adverse actions, consequences, etc. if a COR’s certification expires while actively serving as an appointed COR. And the OFPP guidance is silent as well.

Thank you, Vern, for the insight!

OFPP’s 2011 memo is the guiding policy document when it comes to FAC-COR requirement(s)(https://www.fai.gov/sites/default/files/pdfss/FAC-COR_20Sep2011.pdf). If a COR’s FAC-COR certification expires while serving as an appointed COR on a contract, does anyone know if there are any real ramifications (like an audit finding, etc.)? If so, what are they and what guidance/policy states them? The FAR is silent and the 2011 OFPP guidance only states that the CO “may revoke” the COR’s appointment on a contract if his/her certification expires. This is all I could find policy-wise, and this is just a discretionary action. Thank you!

@C Culham that is correct and the relevant FAR part 22 sections have been considered. I would not be including the FAR 52.222-46 provision, though, as these are commercial, professional services and there would not be a “meaningful” number of professional employees involved either way. Thank you for the insight throughout this topic!

@Vern Edwardsthank you for helping me through this. A bit Socratic method-esque! I am not applying SCA in these contractor 1102-equivalent requirements.

@Vern Edwards thank you again. I had read that reference previously, but the way I interpret, for example, “Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction” and then reading the definition of “knowledge of an advanced type” in 29 CFR 541.301 of “work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances...” could truly apply to 1102 positions and contractor 1102-equivalent positions. Those positions exercise a lot of discretion, judgment, analysis, etc. And then the “customarily acquired by a prolonged course of specialized intellectual instruction” prong seems to be met by the requirement of the 1102 education requirement of 24 hours of learning in specific disciplines/subjects. Although the degree itself can be in any subject, it is still requiring a qualifying subset of specialized education within it. I also think the language in 29 CFR 541.301(f) could be interpreted broadly to include the 1102/1102-equivalent profession as it states “…the areas in which the professional exemption may be available are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning.” Am I making a stretch with this interpretation?

@Vern Edwards thank you, Vern. So taking a look at the updated 1102 Individual Occupational Requirements, the Q&A, and the underlying 41 U.S.C. 433 guidance, there does not seem to be any definitive guidance on whether the series is considered “professional” or some other category exempt from SCA. It seems like the occupation would be “professional” based on the positive education requirement. I find it interesting that the 1102 series has its own Individual Occupational Requirements rather than being placed into any of the Group Qualification Standard categories like “Professional and Scientific,” “Administrative and Management,” etc. I am still stumped.

@ji20874 thank you for the insight. I would be talking about more so 1102-equivalent duties rather procurement technician duties. I feel there is “professional” nature to 1102-equivalent duties, so I would agree that SCA would seem to not apply, but was not sure if anyone thought differently. @Vern Edwards thanks for the reply. Are you referring to the 147 page document from December 1983 (https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/standards/1100/gs1102.pdf)? If so, I see a relevant section on pages 131 and 132 that discusses whether the 1102 series is “professional,” but we know the 1102 position has changed with the 1102 series requiring a Bachelor’s degree now (although there have been talks to rid of that requirement again). So, would the fact there is a degree requirement now make the 1102 position (and any contractor 1102-equivalent position) “professional” and, thus, exempt from SCA? @C Culham thank you for the information. Yes, I have been on that website and have reviewed the resources there, including the Fact Sheet you reference. In regards to your litmus test, do you think the duties of a contractor 1102-equivalent position (e.g., drafting pre-solicitation documents, solicitation documents, post-award contract administration, etc.) fall under a professional exemption and do not have SCA apply? Thank you all!

Hi, All! Just wondering if anyone has procured acquisition support services (i.e., contractors performing Contract Specialist-equivalent duties such as pre-award documentation, contract administration, etc.) and whether they apply the Service Contract Act (SCA)/Service Contract Labor Standards (SCLS) to those acquisitions. There are further implications of applying SCA/SCLS (like the now reinstated “right of first refusal” provisions by the E.O. issued yesterday), so I am trying to get my bearings here. This type of occupational category is not clearly listed on Wage Determinations, but I am not sure if a bona fide professional exemption (29 CFR Part 541) applies either. These positions do, however, typically meet the salary requirements and usually require a level of experience that would make it seem like a “professional” position. Any insight would be greatly appreciated. Thanks!

Hello, WifCon! To begin, I have already engaged my agency’s OGC and they have no opinion on the matter at this time; we are exploring what other agencies are doing in possible similar situations. We have a sole source contractor that is refusing to explicitly fill out the representations related to Section 889 (i.e., FAR 52.204-24 or FAR 52.204-26) and that is unwilling to include the clause 52.204-25 in the contract. Rather, the contractor just states in an email that to the best of its knowledge, it is in compliance with Section 889 (thus not explicitly filling out a provision/representation) and that it will follow all applicable laws, statutes, etc. (thus not explicitly including the clause). I did not award the original contract, but the contractor refused many standard, federal government terms and conditions at the time of contract award (not registering in SAM, etc.); the agency had to acquiesce because of the sole source nature of the procurement. The agency needs the products/services offered by this sole source contractor and cannot afford a lapse in service; the upcoming option exercise is necessary. Has ANYONE run into this situation at their agencies? Any recommendations on how to proceed? Thank you!

Hi, Ji. Thank you as always for the input. I agree it is not a huge deal/undertaking to just post the award synopsis. I am just curious what the overall intent was with that language in 5.301(a)(1)(i)...the FAR likes to complicate matters!

Hi, WIFCON! So I think I am diving down a rabbit hole here, but I have been reading into FAR 5.301(a)(1)(i) a bit more closely, which states: (a) Except for contract actions described in paragraph (b) of this section and as provided in 5.003, contracting officers must synopsize through the GPE the following: (1) Contract awards exceeding $25,000 that are- (i) Covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see subpart 25.4)... The remaining language in FAR 5.301 is clear to me, but this portion stating "Covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement" is throwing me off. As general practice at most of the agencies I have worked as an 1102, we have been instructed to post an award notice for any open market competitive acquisition over $25,000 (i.e., the solicitation was synopsized on the GPE). I do not think that is necessarily correct (I am not including the need to post award notices for JOFOCs under 6, sole source justifications under 13.5, LSJs under 8.4, JEFOs under 16.505, other exceptions under FAR 5.301(b), etc.). Should we technically be interpreting FAR 25.401(a) and (b) as if our acquisition meets one of those listed exceptions, then we are not required to post an award notice? For example, if the acquisition was a small business set-aside, we would not be required to post an award notice as the WTO-GPA does not apply to small-business set-asides (FAR 25.401(a)(1))? Conversely, if the acquisition does not fit any of the exceptions in FAR 25.401(a) and does not fit under any of the descriptions or codes listed in FAR 25.401(b), then an award notice needs to be posted? Just curious for some interpretation here. Thanks!

Hi, Ji. Thank you VERY much for that analysis/rationale! You make a very good point in regards to the structure of the text. Also, it makes sense that we would be afforded this flexibility/shorter time frame for commercial items as vendors should be able to respond quicker with items/services they can offer in the commercial marketplace, they typically have pre-written literature on their products/services, etc. Thank you opening my eyes to the synopsis "light"! Have a great weekend!

Hi, ji! Thank you for the quick response. I see you write "15 days before issuance of a solicitation," but 5.203(a)(1) actually states "Establish a shorter period for issuance of the solicitation..." So, are you stating that you interpret the phrase "period for issuance of the solicitation" to be synonymous with "synopsis period"? I take that phrase to mean the actual solicitation period (i.e., the amount of time a solicitation is posted - not the synopsis - and when a solicitation closes). Yes, I agree 5.203(c) refers to the flexibility we have to have a shorter solicitation period when acquiring commercial items (i.e., the time I post a solicitation - not a synopsis - to when the solicitation closes). I expect to only give a week or so for the sole source vendor to provide a response to the solicitation itself, as is allowable with 5.203(c). My issue is determining whether I need to post the sole source synopsis/notice of intent to sole source for exactly 15 days prior to eventually only giving like a week or so to the vendor to respond to the solicitation I will post/send after the synopsis/notice of intent period. You think for a FAR Subpart 13.5 sole source acquisition that I have flexibility to use a shorter (e.g., 7 days) synopsis/notice of intent to sole source period AND a shorter solicitation period (e.g., 7 days)? For a competitive commercial acquisition, I would simply just do the combined synopsis/solicitation and could choose any time period to post the solicitation, which also would meet synopsis requirements, but the sole source environment/notice of intent to sole source throws me for a loop on timelines.

Hi, Folks. I have a sole source under FAR Subpart 13.5 procedures. In regards to posting the synopsis/notice of intent to sole source, do I have flexibility in the amount of time I post the synopsis/notice? FAR 5.203(a) states "the notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302..." However, FAR 6.302 authorities are not applicable to FAR Part 13. I understand that the FAR 5.203(a) language continues to state "...except that, for acquisitions of commercial items, the contracting officer may - (1) Establish a shorter period for issuance of the solicitation; or (2) Use the combined synopsis and solicitation procedure (see 12.603)." The additional language in regards to commercial items, which would be applicable to my case, does not touch upon the length of time the synopsis/notice of intent to sole source can, or must, be posted; it only states that the solicitation period can be shorter. I am not using the combined synopsis/solicitation method. With all of this said, and the guidance in FAR 5.203(a), should I still proceed with a 15-day synopsis/notice of intent to sole source for my commercial acquisition under FAR Subpart 13.5? Or do I technically have latitude to do a shorter period for the synopsis/notice of intent to sole source as the FAR does not specifically prohibit or mandate that a 15-day notice is required for sole sources under FAR Subpart 13.5, which is separate from FAR 6.302 authorities? Any guidance would be greatly appreciated. Thank you!

Thank you all again for your insights. I ended up calling the Census Bureau's Dr. NAICS hotline and described the industry/purchase (data being provided via internet login and other electronic mediums like Excel spreadsheets and PDF reports). The Census Bureau representative advised that 519130 - Internet Publishing and Broadcasting and Web Search Portals - was most applicable. My search of FBO has shown that 519130 is a frequently used NAICS code to categorize the purchase of datasets (still along with 511210 and 518210), so I am proceeding with this NAICS code. This situation is definitely demonstrative of the "contracting is an art, not a science" argument. I do not see an extreme risk with me choosing the 519130 NAICS code versus the others, but the lack of consistency is just interesting.

Napolik - thank you and this is also great information. C Culham had sent over the GAO report, as well. I do not think my choice of NAICS ultimately will be scrutinized or protested in this case, but it is just a matter of principle to find what best aligns and navigating the somewhat nebulous language associated with these NAICS codes.

Hi General Z - thank you for the detailed insight. I do not agree fully with your first paragraph. I agree we can purchase data in a vast amount of subject areas, such as what you listed, but a company compiling and providing the data on a certain subject is different than the subject itself. In my case, we are looking to purchase specialized real estate data. The NAICS industry/sector related to real estate is 53 - Real Estate and Rental and Leasing - and more specifically 531. There is no NAICS code within that industry/sector that applies to vendors providing and compiling data related to that industry/sector (including NAICS code 531390 - Other Activities Related to Real Estate). The real estate data we are looking to purchase is only available on the commercial market (FAR Part 12 in conjunction with either Part 13 or Part 15). Just for reference, I reviewed GSA's FSS SIN-NAICS Crosswalk document to see how they applied the 511210 and 518210 NAICS codes. 518210 applied to SIN 132-40 (Cloud Computing Services), 132-41 (Earth Observation Solutions), and 132-52 (Electronic Commerce and Subscription Services). 511210 applied to SIN 132-32 (Term Software License), 132-33 (Perpetual Software License), 132-34 (Maintenance of Software as a Service), 132-41 (Earth Observation Solutions), and 132-56 (Health Information Technology Services). Determining the PSC as a 70 or D category is another process. PSC 7030 - IT Software - states software can be "a collection of data in a form capable of being processed and operated on a computer" and crosswalks with NAICS code 511210. That PSC definition seems pretty clear cut to me and applicable to what we want to purchase (a collection of data), but then the NAICS definition of 511210 does not seem as clear cut for this.