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Limitation on payment for advisory and assistance services


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Paragraph(d) of 37.203 Policy says:

Limitation on payment for advisory and assistance services. Contractors may not be paid for services to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract award unless?

(1) Neither covered personnel from the requesting agency, nor from another agency, with adequate training and capabilities to perform the required proposal evaluation, are readily available and a written determination is made in accordance with 37.204;

(2) The contractor is a Federally-Funded Research and Development Center (FFRDC) as authorized in Section 23 of the Office of Federal Procurement Policy (OFPP) Act as amended (41 U.S.C. 419) and the work placed under the FFRDC?s contract meets the criteria of 35.017-3; or

(3) Such functions are otherwise authorized by law.

Question 1. Are sub-paragraphs (1) and (2) read together?

Question 2. Would the potential offerors be notified in the solicitation that their proposals would be evaluated by other contractors and not covered personnel?

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Paragraph(d) of 37.203 Policy says:

Limitation on payment for advisory and assistance services. Contractors may not be paid for services to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract award unless?

(1) Neither covered personnel from the requesting agency, nor from another agency, with adequate training and capabilities to perform the required proposal evaluation, are readily available and a written determination is made in accordance with 37.204;

(2) The contractor is a Federally-Funded Research and Development Center (FFRDC) as authorized in Section 23 of the Office of Federal Procurement Policy (OFPP) Act as amended (41 U.S.C. 419) and the work placed under the FFRDC?s contract meets the criteria of 35.017-3; or

(3) Such functions are otherwise authorized by law.

Question 1. Are sub-paragraphs (1) and (2) read together?

Question 2. Would the potential offerors be notified in the solicitation that their proposals would be evaluated by other contractors and not covered personnel?

No, (1) and (2) are not read together.

Companies may submit confidential and proprietary information to the government with the assumption the government is safeguarding it. If you use a contractor to evaluate or analyze it, the submitters need to be aware of that. The easiest way to do that is notify offerors in the solicitation that another company will assist the government. It's also wise to disclose the evaluators identity so offerors can consent without further questioning.

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No, (1) and (2) are not read together.

Companies may submit confidential and proprietary information to the government with the assumption the government is safeguarding it. If you use a contractor to evaluate or analyze it, the submitters need to be aware of that. The easiest way to do that is notify offerors in the solicitation that another company will assist the government. It's also wise to disclose the evaluators identity so offerors can consent without further questioning.

I have often wondered how such disclosures do not violate 18 U.S.C. 1905, even with contractor consent. Can someone provide an explanation as to how these disclosures do not expose the contractng officer to potential criminal prosecution?

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If non-governmental personnel are prohibited from receiving confidential and proprietary contract information, then the whole government might as well come to a screeching halt, as every office I have worked with in the last few years has contract employees working alongside the feds. That includes the contracting office itself, as well as the program offices, warehouses and flight lines.

I believe that the contracts for those contractor services include the same kind of non-disclosure and re-employment restrictions that feds are under, but how that is reflected by 18 USC 1905 I do not know. It would be interesting to find that out, but if it is negative, it could be a really big deal across many organizations, including my current office.

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