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I am admining a FFP IDIQ that is classified as a non-commercial service contract that has a few hardware CLINs on it. If we execute a DO that only contains FFP hardware CLINS that is funded by a hardware 1095, does that DO require a COR? Or are we required to appoint a COR for every single DO since the base contract is a service contract? Again, the contractor is strictly delivering supplies under this DO and nothing else.

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19 hours ago, CEE said:

I am admining a FFP IDIQ that is classified as a non-commercial service contract that has a few hardware CLINs on it. If we execute a DO that only contains FFP hardware CLINS that is funded by a hardware 1095, does that DO require a COR? Or are we required to appoint a COR for every single DO since the base contract is a service contract? Again, the contractor is strictly delivering supplies under this DO and nothing else.

The FAR principle is stated in FAR 1.602-2 which states (emphasis added) - 

"Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall-

      (a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;

      (b) Ensure that contractors receive impartial, fair, and equitable treatment;

      (c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate; and

      (d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer’s representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties. See 7.104(e). "

As provided by this principle your specific agency policy and procedures might give you further guidance.   If not it would be the determination of the CO as to whether a COR is "appropriate" for the FFP Delivery Order. 

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On 5/6/2022 at 11:13 AM, CEE said:

are we required to appoint a COR for every single DO since the base contract is a service contract? Again, the contractor is strictly delivering supplies under this DO and nothing else.

The FAR itself doesn't prescribe exactly when a COR must be appointed for FFP.  Note the very large caveat in 1.602-2 "as appropriate."  So, per the FAR, the CO could reasonable determine a COR for your order wouldn't be appropriate.  So the short answer is "No."

However.. not end of story.  Other regs, policies or whatever could mean you do need a COR in your situation.  For example your department states you need a COR over a certain $ threshold, regardless of contract type. And your order is > $.  Or something about that specific contract or project.  Say, the Program Office wants all orders issued against a particular IDIQ to be assigned a particular COR, for centralized contract admin or whatever. 

So the longer answer is "No, but also maybe."

    

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You did not state, but I will assume for a moment that you are with DoD and that this is a locally issued IDIQ contract. If so, then why not be satisfied with appointment of a COR at the contract level and not appoint a COR at the order level?  See DoDI 5000.72 Section 3, specifically the pertinent parts of paragraph b and c.


"3. POLICY. It is DoD policy that:...
 b. Contracting officers will designate a COR for all service contracts, including construction, unless the contracting officer retains and executes contract oversight responsibilities..."


"c. A qualified COR is designated for all contracts or orders placed for DoD requirements, regardless of whether or not contract actions are executed by a DoD or non-DoD contracting 
officer"... Emphasis added.

 

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On 5/6/2022 at 8:13 AM, CEE said:

If we execute a DO that only contains FFP hardware CLINS that is funded by a hardware 1095, does that DO require a COR?

The professional answer to that question is an unequivocal YES!  Because it seems likely that a COR appointed for a services contract is not qualified to be a COR for an order of supplies.

For the curious, assuming there are any such, here's some deep background.

The OP's question appears to have been prompted by concern that the contract is for services and that, for some reason, the agency is issuing orders under a service contract to buy supplies. The OP wants to know if his office must appoint a special COR for the supply orders.

With respect to FAR 1.602-2(d): Why is it there? What is it about? How is it supposed to be applied? 

FAR is not a textbook. It states the What, but not the How or the Why. I'll leave the How to first-level supervisors of the clueless. I'll explain the Why for curious professionals.

When COs award contracts they must perform contract administration. One of COs' most important tasks during contract administration is to ensure that the government gets what it pays for by means of contract quality assurance (QA). (QA is distinct from quality control (QC), which is the contractor's responsibility.)

FAR 46.101 defines contract quality assurance as follows:

Quote

Government contract quality assurance means the various functions, including inspection, performed by the Government to determine whether a contractor has fulfilled the contract obligations pertaining to quality and quantity.

The purpose of contract QA is to ensure that supplies, services, and construction conform to the contract requirements. Contract QA is a technical function, not just an administrative function. It must be done by persons who understand the contract technical requirements and the things being purchased and understand how to inspect them. They must have technical know-how.

Now read FAR 42.202(a); 42.302(a)(38) and (68)(ii); 46.103(d) and 46.104, and 46.401. Historically, most of what the Government bought was supplies, and the Government, mainly DOD, employed professional inspectors to perform contract QA during manufacture or upon delivery. Most DOD inspectors worked for a large regional organization called Defense Contract Administrative Services or DCAS. Certain contract administration functions--such as inspection and acceptance and payment--were delegated to DCAS and its subordinate organizations via standing agreements. DCAS offices would appoint the inspectors, who were--guess what--CORs. They were called that long before I was born. Many civilian agencies relied on DCAS for contract QA.

When buying construction, agencies used civil engineers and experienced construction workers as CORs for contracting QA. When buying services, persons in the requiring activity checked the contractor's work. But services were a small part of Government contracting, and there was no systematic approach to performing contract QA.

In the years after the Reagan administrations, Government contracting became dominated by services, gradually at first, and then quickly as the Government awarded more and more service contracts for performance of its work. Such contracts were generally referred to as "support services," and were highly diverse. Moreover, most such services were performed at "source" (see FAR 46.402). For those reasons it was, and is, difficult to centralize contract QA as had been done through DCAS. (DCAS is gone. It has been replaced by the Defense Contract Management Agency (DCMA).

See https://www.dcma.mil/News/Article-View/Article/2100501/a-history-of-defense-contract-administration/ )

There has never been a centralized system for performing service contract QA. That makes sense, because most services are "local," i.e., performed where needed, at "source." The Government personnel at source should understand their requirements best. So it is mainly left to local contracting offices.

But as service contract obligations grew as a rapid pace after during the late 1980s and the 1990s, both the Executive Branch and Congress began to worry about whether the Government was getting its money's worth. Moreover, services required more than just QA, they required more coordination between the requiring activity and the contractor, because unlike hardware specifications, statements of work only rarely specify services in detail. Requirements often had to be clarified ad hoc, during performance.

During the late 1990s-mid-2000s, concerns about service contract management became elevated in light of a huge surge in service contracts. The surge became a tsunami after 9-11 and the start of our wars in Afghanistan and Iraq. See GAO, DEFENSE ACQUISITIONS: DOD’s Increased Reliance on Service Contractors Exacerbates Long-standing Challenges, GAO-08-621T (April, 2008). The document is the text of GAO testimony to the House of Representatives. Three quotes:

Quote

The role of the acquisition function does not end with the award of a contract. It requires continued involvement throughout contract implementation and closeout to ensure that contracted services are delivered according to the schedule, cost, quality, and quantity specified in the contract. In DOD, oversight—including ensuring that the contract performance is consistent with the description and scope of the contract is provided by both contracting officers and the contracting officers representative (COR), typically a government employee with technical knowledge of the particular program.

 

Quote

DOD’s increasing reliance on contractors exacerbates long-standing problems with its acquisition workforce. GAO has long reported that DOD’s acquisition workforce needs to have the right skills to effectively implement best practices and properly manage the acquisition of goods and services. Weaknesses in this area have been revealed in recent contingency situations, but they are present in nonemergency circumstances as well, with the potential to expose DOD to fraud, waste, and abuse. It is important to note that the role of the acquisition function does not end with the award of a contract. Continued involvement of the workforce throughout contract implementation and closeout is needed to ensure that contracted services are delivered according to the schedule, cost, quality, and quantity specified in the contract. GAO has in the past several years reported wide discrepancies in the rigor with which contracting officer’s representatives perform these duties, particularly in unstable environments such as the conflict in Iraq and the aftermath of Hurricane Katrina.

 

Quote

DOD’s Panel on Contracting Integrity raised similar concerns, noting that contracting personnel in a combat/contingent environment do not always have functional independence. Contracting personnel, including CORs, are sometimes placed in positions where their direct supervisor is not in the contracting chain of command, thus possibly injecting risk into the integrity of the contracting process. The report found that CORs are not sufficiently trained and prepared, and sometimes lack support from their operational chain of command, to perform effectively.

In the wake of the report by the DOD's Panel on Contracting Integrity and the the GAO testimony, the FAR councils issued FAC 2005-50, 74 Fed. Reg. 14545, March 16, 2011, which, by interim rule, added paragraph (d) to FAR 1.602-2. The interim rule was finalized by FAC 2005-56, 77 FR 12925, March 2, 2012. The councils expanded on the COR requirement in FAC 2005-67, 78 FR 37675, June 21, 2013, which created the current text of FAR 1.602-2(d). The FACs that created that requirement didn't tell the story that I have just told you.

Bottom line: The coverage in FAR 1.602-2(d) is really aimed at ensuring proper service contract QA, which is not effectively covered by FAR Parts 42 and 46. As is typical, FAR does not explain the Why of anything.

Thus, if the OP's office is going to use a service contract, with service contract inspection clauses, to buy supplies—which is truly, deeply stupid—it should at least appoint a special "COR" to perform supply contract QA.

And now you know why. It is not about the interpretation of FAR 1.602-2(d). It is about sound professional practice.

So, YES! The office that is buying supplies under a service contract—which is the kind of practice that has screwed up the contracting system and that, if practiced too widely, results in more regulations—should make sure that it can perform adequate contract QA before buying, accepting, and paying for those supplies. And any CO who doesn't understand that should have their certificate of appointment taken away.

P.S. Some of the responses to the OP in this thread have reflected an almost profoundly bureaucratic mentality.

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On 5/7/2022 at 4:31 AM, C Culham said:

(d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer’s representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties. See 7.104(e). "

As provided by this principle your specific agency policy and procedures might give you further guidance.   If not it would be the determination of the CO as to whether a COR is "appropriate" for the FFP Delivery Order. 

Paragraph (d) is not a principle. It is a rule. Rules are based on principles, which are basic truths or assumptions. Rules apply principles to practices.

In this case, the principle that underlies the rule at FAR 1.602-2(d) is that the Government should make sure that what it receives and pays for is what it was promised and is entitled to. Thus, the rule in FAR 1.602-2(d) that the CO should appoint someone in writing to make sure.

The same principle underlies a broader rule. FAR 46.102, Policy:

Quote

 

Agencies shall ensure that:

      (a) Contracts include inspection and other quality requirements, including warranty clauses when appropriate, that are determined necessary to protect the Government’s interest;

      (b) Supplies or services (including commercial services) tendered by contractors meet contract requirements;

      (c) Government contract quality assurance is conducted before acceptance (except as otherwise provided in this part), by or under the direction of Government personnel;

      (d) No contract precludes the Government from performing inspection;

      (e) Nonconforming supplies or services are rejected, except as otherwise provided in 46.407;

      (f) Contracts for commercial products rely on a contractor’s existing quality assurance system as a substitute for compliance with Government inspection and testing before tender for acceptance unless customary market practices for the commercial product being acquired permit in-process inspection ( 41 U.S.C. 3307). Any in-process inspection by the Government shall be conducted in a manner consistent with commercial practice; and

      (g) The quality assurance and acceptance services of other agencies are used when this will be effective, economical, or otherwise in the Government’s interest (see 42.002 and subpart  42.12.

 

FAR 1.602-2(d) focuses on contracts and orders other than FFP because it is based on a statute about cost-reimbursement contracts in the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. But bureaucratic interpretations of FAR 1.602-2(d), with its focus on other than FFP, are uninformed.

FAR 1.602-2 begins thusly:

Quote

Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. 

The broader rules at FAR 1.602-2 and 46.102, quoted above, should inform COs that if they are going to buy something they must make sure that they or someone else makes sure that the Government receives and pays for what it was promised and is entitled to. Since COs are responsible for contract administration, whoever makes sure is a COR, whether appointed by CO letter or interoffice or interagency agreement.

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19 hours ago, Vern Edwards said:

The professional answer to that question is an unequivocal YES!  Because it seems likely that a COR appointed for a services contract is not qualified to be a COR for an order of supplies.

 

18 hours ago, Vern Edwards said:

In this case, the principle that underlies the rule at FAR 1.602-2(d) is that the Government should make sure that what it receives and pays for is what it was promised and is entitled to. Thus, the rule in FAR 1.602-2(d) that the CO should appoint someone in writing to make sure.

To be clear I provided neither a Yes or No in my response.

In the context of the OP’s questions the premise of being imperative that “Yes” a COR is required would have been an ill-advised response on my part and is not in keeping with the rule of 1.602-2(d).  Rather a simplistic response of either “Yes” or “No” without additional feedback from the OP would have been the bureaucratic stance.  Rather I took the approach to provide reference to the OP to help in leading him/her to make a determination on their own based on realistic and efficient conclusions.

Why not yes or no?   There are lots of reasons more specific to the OP’s instant procurement than a historical perspective of why there are COR’s.   Not an exhaustive list but important are what is “funded by a hardware 1095”, is the hardware manufactured specifically under the contract or are the hardware CLINS commercial off the shelf (feasible even if the entirety of the IDIQ is considered non-commercial services), does the contract have inspectors or others that fulfill quality assurance functions beyond that of the CO and COR(s) and more?   

One could even pick on the mere wording of the OP’s questions.  DO’s do not require a COR.  Agency policy and procedure might but a read of various agency policy on COR’s beyond that quoted in the thread do not make assignment explicit.  Scope, complexity of the contract and the discretion and ability of the CO (is the CO in the DITAP program, retain FAC-C-DS certification) are the considerations and decision points as to when a COR is needed especially in the context of a FFP supply for hardware.

Yes - might be the appropriate answer, No might be the answer as well and I would even offer that as stated by another “maybe” could be appropriate when all pertinent facts are known as direction of the FAR allied with the varied agency policy is clear that appointment of a COR for a FFP supply contract or order is at the discretion of the CO.

I just hope that OP has reached a realistic and efficient conclusion on the need for a COR based more on the facts of the instant contract, the stated procedures of the agency, the discretion of the CO and less on the tedious details that resulted the FAR principle on CORs.

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Thank you, Vern, the history prior to DCMA is almost all news to me. 

Knowing this backstory will help when I'm  facing divergent views on a need for COR Appointment in DoD where particular facts about a requirement show it might be wise to appoint a COR, but is it's still not required by DFARS PGI 201.602-2(d)(v) (a) or (b), for example a supply contract without reimburseable line items. 

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2 hours ago, C Culham said:

Yes - might be the appropriate answer, No might be the answer as well

Nonsense. The correct answer is Yes. A CO must ensure that someone performs contract QA. That someone will either be the CO or a representative of the CO. Most COs don't perform contract QA. Anyone who thinks that FFP contracts don't need one or more CORs is ignorant.

What happened in this thread is that the very first responder to the OP, reading "COR," thought only in terms of FAR 1.602-2(d), instead of thinking of the nature of the problem and what other parts of FAR require. That first responder knew only part of the What and none of the Why. Once they mentioned FAR 1.602-2(b) everyone else focused on 1.602-2(b). I fired a shot across the bows when I posted "Criminy," but no one paid attention.

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7 minutes ago, Vern Edwards said:

Nonsense. The correct answer is Yes. A CO must ensure that someone performs contract QA. That someone will either be the CO or a representative of the CO. Most COs don't perform contract QA. Anyone who thinks that FFP contracts don't need one or more CORs is ignorant.

What happened in this thread is that the very first responder to the OP, reading "COR," thought only in terms of FAR 1.602-2(d), instead of thinking of the nature of the problem and what FAR requires. That first responder knew only part of the What and none of the Why. Once they mentioned FAR 1.602-2(b) everyone else focused on 1.602-2(b). I fired a shot across the bows when I posted "Criminy," but no one paid attention.

The answer Yes is not based on fact but based on conjecture.  Yes COs are to ensure  QA and that can be the CO or others as the CO sees fit and that person does not have to be a designated representative of the CO.  I guess Frank Kendall is ignorant (my emphasis added) -

"Contracting officers will designate a COR for all service contracts, including construction, unless the contracting officer retains and executes contract oversight responsibilities when the conditions of subpart 201.602-2 of the DFARS Procedures, Guidance, and Information (Reference (g)) exist. CORs may be required for any other contract when the need for a COR is determined by the contracting officer. The contracting officer always has the right to designate a COR when it is in the best interest of the U.S. Government."

As to Criminy I did pay attention to the detail that you did not post a response to OP for more than 48 hours and only after you saw my name response appear ( I was the first responder).   

Yes sir it was me and you are correct I did not know any of the Why as whether a COR would be needed in the eyes of the CO therefore no Yes or No.  Apparently you did know Why based on the specifics of the instant procurement and if you did not I really do question how a a discretionary decision by a CO demands a Yes all the time!  Factually not correct and in reality not demanded or practiced.

The nonsense of how this thread has progressed and a response of Yes is best supported by this sentence that says what?   

22 hours ago, Vern Edwards said:

Since COs are responsible for contract administration, whoever makes sure is a COR, whether appointed by CO letter or interoffice or interagency agreement.

 

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20 hours ago, Vern Edwards said:

Carl: I know better than to try reasoning with you. You're mad because I criticized you. Well, stay mad. I will not go back and forth with you. I will not explain further to you.

I will not waste my time.

Fine with me Vern, take your ball and go home.

I am not mad.  I am not even surprised that you continue to stalk my posts to openly attempt to discredit me, a penchant you have firmly stated and practice continually in Forum.  It just goes with the territory as they say.  Rather I am just providing a view that I firmly believe in, know is true, practicable and sensible.

There is absolutely no imperative requirement within the FAR, and I dare say the OP’s agency’s policy and the OP’s DO that is for solely hardware ordered pursuant to a firm fixed price CLIN that requires the assignment of COR to the DO.   There is not even a FAR requirement to appoint a COR on every single DO issued under a non-commercial service IDIQ.   The choice as provided by the FAR is that of the CO’s unless agency policy and procedure require otherwise. 

No sir not mad, I have just reasoned that when it comes to Carl you have inattentional blindness.

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4 hours ago, C Culham said:

I am not mad.  I am not even surprised that you continue to stalk my posts to openly attempt to discredit me, a penchant you have firmly stated and practice continually in Forum.  It just goes with the territory as they say. 

I don't stalk you, Carl. 😄 That's giving yourself way too much credit. You're just out there sometimes, and I have standards.

But I'm glad you're not mad.

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