Can an agency contract out the COR/COTR job?

[govt2310]

Can an agency contract out the COR/COTR job?  Or is that considered inherently governmental?

[Guest Vern Edwards]

The answer depends on job content, not job title. See FAR 7.503.

[prodigalko]

This ought to be fun.  FAR 1.602-2(d) is below.  (1) says shall unless otherwise authorized.  There are lots of issues with this and reports that you can find generally and specifically regarding when contractor's were appointed as COR's in overseas environments.  Short answer - check your agency supplement.  I am sure that others will chime in with the long answer soon. 

"(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). A COR—

(1) Shall be a Government employee, unless otherwise authorized in agency regulations;

(2) Shall be certified and maintain certification in accordance with the current Office of Management and Budget memorandum on the Federal Acquisition Certification for Contracting Officer Representatives (FAC-COR) guidance, or for DoD, in accordance with the current applicable DoD policy guidance;

(3) Shall be qualified by training and experience commensurate with the responsibilities to be delegated in accordance with agency procedures;

(4) May not be delegated responsibility to perform functions that have been delegated under 42.202 to a contract administration office, but may be assigned some duties at 42.302 by the contracting officer;

(5) Has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions;

(6) Shall be nominated either by the requiring activity or in accordance with agency procedures; and

(7) Shall be designated in writing, with copies furnished to the contractor and the contract administration office—

• (i) Specifying the extent of the COR’s authority to act on behalf of the contracting officer;

  (ii) Identifying the limitations on the COR’s authority;

  (iii) Specifying the period covered by the designation;

  (iv) Stating the authority is not redelegable; and

  (v) Stating that the COR may be personally liable for unauthorized acts."

[prodigalko]

A better (easier, possibly more productive) question might be how would you contract out the COR function while complying with " all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals . . . "(FAR 1.602-1(b))?  

[BowtechDan]

Some of the tasks CORs are appointed to do are inherently governmental.

Another question to ask is: where will the work be performed?  In some parts of Afghanistan, we don't have civilians, or we don't risk military convoys outside the fence to do contract oversight.

 

DFARS 207.503 states:

(S-70) Contracts for acquisition functions.

(1) In accordance with 10 U.S.C. 2383, the head of an agency may enter into a contract for performance of the acquisition functions closely associated with inherently governmental functions that are listed at FAR 7.503(d) only if—

• (i) The contracting officer determines that appropriate military or civilian DoD personnel—

  • (A) Cannot reasonably be made available to perform the functions;

    (B) Will oversee contractor performance of the contract; and

    (C) Will perform all inherently governmental functions associated with the functions to be performed under the contract; and.

[jonmjohnson]

Govt2310 - This is actually an excellent question, and one that I never thought to pose.  Thank you for raising it.

~ JJ

[C Culham]

This is just a quick response to the original question as it could in fact lead to very significant discussion as implied in part by the responses already provided.   In the period when Government jobs were competed against that of the private sector (outsourcing aka competitive sourcing) the very same question got lots of attention.   Such things as the FAIR Act, then OMB Circular A-76, FAR as it existed, the FAR definition of a Contracting Officer (was concluded as inherently governmental position) and much more was considered.   In the end it was a general consensus among agencies that yes COR/COTR were inherently governmental (IG) duties/positions.   The hand wringing regarding positions and functions continued with direction under NDAA passed in 2009 to clarify.  There is now a OMB Policy Letter (see below) that discusses the issues connected to inherently governmental and closely associated to inherently governmental.

My suggestion is if your question is based on a specific action being contemplated that you engage your agency legal counsel and human resource office with regard to the question.   The following references may be of an assist.

https://www.whitehouse.gov/omb/procurement_index_work_performance/

Additional research would include doing a search of WIFCON in total on the term "inherently governmental" and reviewing this long list of references found on the OMB Circular Website....

OMB Circular A-76, Performance of Commercial Activities (05/29/2003) including changes made by OMB Memorandum M-07-02 (10/31/2006) (4 pages, 51 kb) and a technical correction made by OMB Memorandum M-03-20 (08/15/2003) HTML or PDF (63 pages, 518 kb)

Note: Please see OMB Memoranda M-04-12 (1 page, 36 kb), Performance Periods in Public-Private Competitions (April 30, 2004), M-06-13 (5 pages, 42 kb), Competitive Sourcing under Section 842(a) of P.L. 109-115 (April 24, 2006), and M-08-11 (8 pages, 60 kb), Competitive Sourcing Requirements in Division D of Public Law 110-161 (February 20, 2008) when applying the following provisions of OMB Circular A-76: Paragraphs 4.c and 5.d; Attachment B, Paragraphs A.5, C.1.a, C.1.c, D.3.a(7), and D.5.b(3); Attachment C, Paragraphs A.5, A.12, C.3 and Section D.

-- Preamble to the revision to OMB Circular No. A-76, "Performance of Commercial Activities" (05/29/03) (9 pages, 116 kb)

Implementing the FAIR Act:
-- Transmittal Memorandum #20 (06/14/1999) in HTML or PDF (23 pages, 85 kb)
-- Transmittal Memorandum #21 (04/27/2000) in HTML
-- Transmittal Memorandum #22 (08/31/2000) in PDF (2 pages, 8 kb)
-- Transmittal Memorandum #23 (03/14/2001) in PDF (3 pages, 8 kb)
-- Transmittal Memorandum #24 (02/27/2002) in PDF (4 pages, 8 kb)
-- Transmittal Memorandum #25 (03/14/2003) in HTML

-- Proposed Revised OMB Circular A-76 (November 14, 2002) (62 pages, 926 kb) (for agency and public comment)

-- Preamble to the proposed revision to OMB Circular No. A-76, "Performance of Commercial Activities" (11/19/02) (6 pages, 106 kb)

Docket of Comments to Proposed Revised OMB Circular A-76
-- List of Emails received from Agency and Public
-- List of faxes received from Agency and Public

Historical Circular A-76, Performance of Commercial Activities, (08/04/1983) (Revised 06/14/1999) in HTML or PDF (8 pages, 29 kb)

Supplemental Handbook in HTML or PDF (77 pages, 968 kb) (04/01/1996) (Revised 06/14/1999)

[Guest Vern Edwards]

Look at the original question.

Carl has provided invaluable reference material, but keep in mind that there is no universal rule regarding what a COR/COTR does in any particular agency or in connection with any particular contract. Some CORs/COTRs are nothing but inspectors who do not have authority to accept. Others serve as liaison. Others are just observers. Others do much, much more.

Job titles encompass diverse functions. Not all contracting officers perform the same functions. There are rules about inherently governmental functions, but I don't of any rules about inherently governmental job titles. govt2310 has to think in terms of functions, not job titles.

In short, asking whether COR/COTR is an inherently governmental function is asking the wrong question.

[C Culham]

As Vern points out what is delegated to the COR/COTR counts and a close read of the policy letter I referenced will be found to be a very useful tool for guidance.  Thinking this through further and acknowledging per the policy memo I have referenced that you can "contract of a COR/COTR" if the functions delegated to contracted effort are not inherently governmental, yet you must remain vigilant regarding functions that are "closely associated", I suspect there are many issues that may be connected to such a contract effort.  Such as -

Is the CO ready to "delegate" to a contractor the title of COR, or are there just functions that  the contractor is suppose to perform?

If in fact a contracted COR/COTR is delegated  is such an individual subject to the matters of unauthorized commitment/ratification?

Does the legal doctrine of "constructive change" apply when a contracted for COR/COTR is the one that is the lynch pin to the "order"?

As Vern's most recent post points out, but phrased another way, what are the functions that the OP is really looking to contract for as in reality it may not be for all those that some agency CO's do in fact delegate to a COR/COTR?

As I noted the two question posed by the OP are not simply Yes or No questions.

[Guest Vern Edwards]

Carl's last post suggests a thought:

Why appoint a contractor employee "COR" or "COTR"? Hire a contractor to perform inspections. Notify the contractor that an inspector will be coming and send the contractor employee. Have the contractor employee report their findings to the CO. Government inspection is for Government and not for the contractor, so there is no need for the contractor employee to tell the contractor anything other than to contact the CO for the results of the inspection.

In short, I see no need to call a contractor employee a COR or a COTR. Call them an inspector or a coordinator. They need not exercise any CO authority or even represent the CO.

In short, work around the issue.

[Boof]

We have "verification and validation" contractors out in the field who present thier findings to a Government Employee COR who may be in country or in Washington.  They can go where our CORs can not.    

[TippHill]

If you contracted it out, wouldn't you then need a COR/COTR for the COR/COTR?