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Gonzo

Limitation on Acquisition of Information Technology

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Hello all, 

My organization is looking at pursuing a contract opportunity with USAID. The solicitation has been released and it includes LIMITATION ON ACQUISITION OF INFORMATION TECHNOLOGY (DEVIATION NOs. M/OAA-DEV-FAR-18-2c and M/OAA-DEV-AIDAR-18-2c) (APRIL 2018) in Section H. Generally speaking, this clause does not cause concern for my org as our IT purchases tend to be incidental to the contract. In this case, we are considering purchasing a significant number of cell phones (~5,000) to use for data collection and program quality monitoring. My read of the clause is that we would be required to submit a request for approval as detailed in the clause, most likely as part of our proposal submission or at least concurrently.

I'm curious how others read this clause and/or have responded to the pre-approval requirements. Appreciate any inputs that you all have. Full clause is below. 

(a) Definitions. As used in this contract --
“Information Technology” means
(1) Any services or equipment, or interconnected system(s) or subsystem(s) of equipment, that are used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency; where
(2) such services or equipment are ' used by an agency' if used by the agency directly or if used by a contractor under a contract with the agency that requires either use of the services or equipment or requires use of the services or equipment to a significant extent in the performance of a service or the furnishing of a product.
(3) The term " information technology" includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including provisioned services such as cloud computing and support services that support any point of the lifecycle of the equipment or service), and related resources.
(4) The term "information technology" does not include any equipment that is acquired by a contractor incidental to a contract that does not require use of the equipment.
(b) The Federal Information Technology Acquisition Reform Act (FITARA) requires Agency Chief Information Officer (CIO) review and approval of contracts that include information technology or information technology services.
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(c) The Contractor must not acquire information technology as defined in this clause without the prior written approval by the contracting officer as specified in this clause.
(d) Request for Approval Requirements:
Clauses and Special Contract Requirements for Facilities Access, Security, and Information Technology (IT) (Class Deviations M/OAA-DEV-FAR-18-2c, and M/OAA-DEV-AIDAR-18-2c)8
(1) If the Contractor determines that any information technology will be necessary to meet the Government’s requirements or to facilitate activities in the Government’s statement of work, the Contractor must request prior written approval from the Contracting Officer.
(2) As part of the request, the Contractor must provide the Contracting Officer a description and an estimate of the total cost of the information technology equipment, software, or services to be procured under this contract. The Contractor must simultaneously notify the Contracting Officer’s Representative (COR) and the Office of the Chief Information Office at ITAuthorization@usaid.gov.
(e) The Contracting Officer will provide written approval to the Contractor through modification to the contract expressly specifying the information technology equipment, software, or services approved for purchase by the COR and the Agency CIO. The Contracting Officer will include the applicable clauses and special contract requirements in the modification.
(f) Except as specified in the contracting officer’s written approval, the Government is not obligated to reimburse the Contractor for any costs incurred for information technology as defined in this clause.
(g) The Contractor must insert the substance of this clause, including this paragraph (g), in all subcontracts.

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Maybe the clause doesn't apply since you are using the cell phones for your own purposes under your own contract, are not delivering the cell phones for use by the agency or by other agency contractors.  Is para. (a)(4) your out?

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@ji20874 - I think (a)(4) would depend heavily on what "incidental" means in this context, which is part of my problem. I did some additional reading in the FITARA and some OMB memos and it seems to me that the intent of this clause is to allow the CIO of the department (in this case, USAID) the opportunity to review and approve of any "major" IT purchases that are not explicitly included in a solicitation or award. The difference between a "major" IT purchase and an incidental one is not very well defined in anything that I have read. As mentioned above, my organization will sometimes budget for some laptops or a printer to be used during execution, which I would consider incidental. I think it is reasonable to consider ~$1.5M in phones that are procured to be used in data gathering that will be a significant part of the program to be a "major" IT purchase, but I would really prefer that those terms be clearly defined. I'm also just curious how others have interpreted the clause since it is relatively new. 

I discussed this with a colleague in compliance and his reading was that we should seek pre-approval (compliance in my org is not contracts focused), but he thought that pre-approval should occur at time of award. Not sure I agree with waiting until award, but I'm open to other opinions. 

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