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It is my understanding that Direct Acquisition IAAs (those in which a federal employee is performing the services) are not covered under FAR Subpart 17.5 and therefore not covered by the Contracts Disputes Act but Assisted Acquisitions are covered by FAR Subpart 17.5 and therefore covered by the Contracts Disputes Act. Is this understanding correct?

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A direct acquisition is one where Agency A places and order directly against Agency B's IDC (FAR .17.502-1(a)(2)).  The terms of Agency B's contract applies, which likely is subject to the contract disputes statutes (FAR subpart 33.2).

If Agency A is acquiring a service from Agency B and Agency B is performing with its own employees (not a contract), then the action is not subject to the FAR (FAR 17.502-2(a)).  Instead, the agreement is simply considered an interagency agreement for other than an acquisition (not a direct or assisted interagency acquisition).  See FAR 17.500(b) and 2.101 for a definition of an interagency acquisition.

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Todd Davis:

I believe we are on the same page as far as how Direct and Assisted Acquisitions are defined. However, you have not directly addressed the second half of my question regarding the application of the Contract Disputes Act to Assisted Acquisitions. Please clarify.

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What does the written agreement say?

See FAR 17.502-1(b )(1)

Quote

(1) Assisted acquisitions.

  • (i) Prior to the issuance of a solicitation, the servicing agency and the requesting agency shall both sign a written interagency agreement that establishes the general terms and conditions governing the relationship between the parties, including roles and responsibilities for acquisition planning, contract execution, and administration and management of the contract(s) or order(s). The requesting agency shall provide to the servicing agency any unique terms, conditions, and applicable agency-specific statutes, regulations, directives, and other applicable requirements for incorporation into the order or contract. In the event there are no agency unique requirements beyond the FAR, the requesting agency shall so inform the servicing agency contracting officer in writing. For acquisitions on behalf of the Department of Defense, also see subpart 17.7. For patent rights, see 27.304-2. In preparing interagency agreements to support assisted acquisitions, agencies should review the Office of Federal Procurement Policy guidance, Interagency Acquisitions, available at http://www.whitehouse.gov/omb/assets/procurement/iac_revised.pdf.

What does your agreement with the other agency say?

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MyFrogleaps,

What you are describing is an interagency agreement.  It is not an assisted acquisition and it is not a direct acquisition.  There is no acquisition involved.  Todd Davis stated that it did not fall under the FAR.  Therefore the Contract Disputes Act (FAR 33) would not apply either.

Don't worry, nobody at my Agency can understand the differentation either. 

 

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At this point, I am not seeking clarification on an existing agreement nor am I seeking for people to simply quote excerpts from the FAR without clarifying their underlying assumptions when approaching the text and their subsequent interpretation of the text itself. I am simply trying to understand what Assisted Acquisition IAAs are supposed to look like when done right.

Let me put it another way:

          The Contract Disputes Act applies to contracts made by a federal executive agency. (41 U.S. Code Sec. 7102)

          My present agency is an executive agency.

          An Assisted Acquisition is a contract according to FAR 2.101, Contract.

          Therefore, the Contract Disputes Act is applicable to Assisted Acquisition IAAs and that is what we should reference when outlining dispute resolution             processes.

Does anyone disagree or see it differently?

If no one disagrees with the above, I have a further question. Assuming the Contract Dispute Act were applicable to an Assisted Acquisition IAA, would it only be applicable in the context of the buying agency's resultant contract vehicle when disputes arise between the Contractor and the "Seller" or it is also applicable to disputes between the buying agency and the selling agency? 

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Do you, or do you not have written interagency agreement that establishes the general terms and conditions governing the relationship between your agency and the other agency?

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The Contracts Disputes Act (CDA) absolutely does not apply to inter-agency agreements (IAAs).  An IAA is not a contract.  An IAA is an agreement between two federal agencies.  Any spat between agencies concerning an IAA is resolved (or not) by the agencies.

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You are correct that an IAA is not a contract governed by the FAR, but I have seen some peculiar IAAs with unusual terms. 

In any event, it is not clear to me if we are addressing the IAA itself or the contracts issued pursuant to the IAA.

 

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If Agency A enters into and agreement with Agency B for an assisted acquisition, Agency B is the one entering into a contract with a contractor.  That contract should reference the disputes statute (CDA) for resolving disputes between Agency B and the contractor.  The disputes statute does not apply to the agreement between Agency A and B.  The interagency agreement should specify how disputes are resolved between the agencies and the obligation of Agency A to Agency B in the event of a dispute between Agency B and their contractor.

Also, an assisted acquisition is not a contract.  See FAR 2.202 for a definition of each term.  The contract is what Agency B enters into with the contractor.  The interagency agreement between Agency A and Agency B is for acquisition assistance.

The CDA is codified at 41 U.S.C. Chapter 71.  It only applies to contracts and not interagency agreements (see Section 7102).  A board of contract appeals and the Court of Federal Claims (who have jurisdiction under the statute) will not hear disputes between Agency A and B regarding their interagency agreement

 

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19 hours ago, myfrogleaps said:

It is my understanding that Direct Acquisition IAAs (those in which a federal employee is performing the services) are not covered under FAR Subpart 17.5 and therefore not covered by the Contracts Disputes Act but Assisted Acquisitions are covered by FAR Subpart 17.5 and therefore covered by the Contracts Disputes Act. Is this understanding correct?

No.

17 hours ago, myfrogleaps said:

At this point, I am not seeking clarification on an existing agreement nor am I seeking for people to simply quote excerpts from the FAR without clarifying their underlying assumptions when approaching the text and their subsequent interpretation of the text itself. I am simply trying to understand what Assisted Acquisition IAAs are supposed to look like when done right.

Let me put it another way:

          The Contract Disputes Act applies to contracts made by a federal executive agency. (41 U.S. Code Sec. 7102)

          My present agency is an executive agency.

          An Assisted Acquisition is a contract according to FAR 2.101, Contract.

          Therefore, the Contract Disputes Act is applicable to Assisted Acquisition IAAs and that is what we should reference when outlining dispute resolution processes.

Does anyone disagree or see it differently?

@Myfrogleaps:

ji20874 disagrees, and so do I.

ji20874 wrote:

Quote

The Contracts Disputes Act (CDA) absolutely does not apply to inter-agency agreements (IAAs).  An IAA is not a contract.  An IAA is an agreement between two federal agencies.  Any spat between agencies concerning an IAA is resolved (or not) by the agencies.

ji20874 is correct. The Contract Disputes Act does not apply to interagency agreements. Neither does it apply to assisted acquisitions. See the Contract Disputes Act, 41 U.S.C. Ch. 71, § 7102, "Applicability of chapter":

Quote

(a) Executive Agency Contracts.—Unless otherwise specifically provided in this chapter, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) made by an executive agency for—

(1) the procurement of property, other than real property in being;

(2) the procurement of services;

(3) the procurement of construction, alteration, repair, or maintenance of real property; or

(4) the disposal of personal property.

Now see FAR 2.101:

Quote

“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

"Assisted acquisition" means a type of interagency acquisition where a servicing agency performs acquisition activities on a requesting agency's behalf, such as awarding and administering a contract, task order, or delivery order.

"Contract" means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see part 16.

Let's think it through:

  • The Contract Disputes Act (41 U.S.C. Ch. 71) applies to contracts.
  • An assisted acquisition is not, itself, a contract, express or implied. (The servicing agency is not a seller. It is an agent, a go between, which conducts an acquisition, the goal of which is to produce a contract. 41 U.S.C. § 7101(7) defines "contractor as follows: "The term 'contractor' means a party to a Federal Government contract other than the Federal Government." 41 U.S.C. § 7103(a), "Claims, generally" refers to claims by contractors against the government or the government against contractors. It says nothing about claims by the government against the government. )
  • Therefore, the Contract Disputes Act does not apply to assisted acquisitions.

See, too, Savantage Financial Services, Inc. v. U.S., 123 Fed. Cl. 7 (2015)--aff'd by the Federal Circuit, per curiam, 2016 WL 4373858 (Mem)--wherein the COFC relied on the definition of contract in FAR 2.101 to hold that an interagency agreement is not a contract. You do not include the Disputes clause, FAR 52.233-1, in interagency agreements to govern disagreements between a requesting agency and a servicing agency.

Do you understand, Myfrogleaps?

Did I provide enough clarification?

Did I "simply quote excerpts from the FAR without clarifying [my] underlying assumptions when approaching the text and [my] subsequent interpretation of the text itself"?

Do you have any more questions?

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