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Army customer has a requirement for software updates. In addition to the software updates, less than 200 hours of professional services may be required. The professional services are incidental to and used solely to support the software, and cannot be purchased separately. The total requirement is less than $100K. The total for the incidental professional services is approximately $47K. To me, this requirement does not appear meet the definition of Service Contract at FAR Subpart 37.1 because the Contractor's primary purpose is NOT to perform an identifiable task. Rather, the Contractor's primary purpose is to furnish the software updates. Additionally, this requirement does not appear to meet the definition of Service Contract in FAR Subpart 22.1000 because the principal purpose is NOT to furnish services through the use of service employees. FYI, last year the Army customer did not use any of the incidental professional services labor hours.

The Army Contracting Officer requires a signed Request for Services Contract Approval form prior to exercising the contract's option period. Here is an AFARS reference the Contracting Officer may have referred to when making this decision: Subpart 5107.5 -- Inherently Governmental Functions

5107.503 -- Policy.

(e) Requiring officials must provide the contracting officer with a copy of the ?Request for Services Contract Approval? form signed by an appropriate General Officer or Accountable member of the Senior Executive Service. Contracting officers shall not complete or sign the service contract approval form and shall not initiate any contract for service, or exercise an option , without an approved certification. The approval and completed worksheets shall be included in the official contract file. The accountable General Officer or Senior Executive may delegate certification authority for requirements valued less than $100,000 in accordance with Command policy. Contracting officers shall document the contract file with a copy of the Command policy before accepting a service contract approval that is signed below the General Officer/Senior Executive level.

(1) The fillable version of the ?Request for Services Contract Approval? form with worksheets can be found on the ASA (M&RA) website: http://www.asamra.army.mil/insourcing. [AFARS Revision #25, Item V, dated April 1, 2010]

Note: Command policy requires SES signature on the form. Questions for discussion: (1) Does this requirement meet the definition of Service Contract in FAR Subpart 37.1? (2) Does the preceding AFARS reference apply to the exercise of an option period for a contract supporting software updates which include incidental professional services? (3) Could the Contracting Officer simply document the file indicating he/she does not consider this requirement to be a Services Contract?

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Guest Vern Edwards
Army customer has a requirement for software updates.

What does that mean?

Does the Army want to hire a contractor to do the work of updating it's current software, or does it want to buy software updates that have already been developed and are being sold to the public?

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What does that mean?

Does the Army want to hire a contractor to do the work of updating it's current software, or does it want to buy software updates that have already been developed and are being sold to the public?

Mr. Edwards: The Army is buying software updates, and wants the contractor to provide reach-back expertise to help Army develop an Army Golden Master for the Red Hat/Linux product to be fielded in Army. The contractor provides subject matter expertise on the software product as needed. Last year, the Army bought the software updates but did not require any reach-back expertise.

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DFARS 208.7401 Definitions.

"Software maintenance" means services normally provided by a software company as standard services at established catalog or market prices, e.g., the right to receive and use upgraded versions of software, updates, and revisions. [bold added]

Software updates = software maintenance = services

Right?

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Marquette,

I think I know what the services are. Tell me if I'm correct.

You have a software product and are buying annual upgrades. The vendor also provides support services to help should you have problems with the install or experience difficulties after the upgrade occurs. These are provided on an as needed basis.

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Marquette,

I think I know what the services are. Tell me if I'm correct.

You have a software product and are buying annual upgrades. The vendor also provides support services to help should you have problems with the install or experience difficulties after the upgrade occurs. These are provided on an as needed basis.

fomerfed: Yes, that is correct.

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All -

The Army's "Service Contract Approval Request" (also known as a SCAR - and it lives up to its initials) has ABSOLUTELY NOTHING to do with the Service Contract Act. It stems from the Army Policy for Civilian Hiring and Initiation/Continuation of Contracts for Service Personnel signed by the Secretary of the Army on 23 Feb 2006. All relates to insourcing and the SCAR basically requires the requesting organization to explain why they cannot perform the services requested with the people they are authorized on their manning document. And this is an annual requirement so has to be done before each option to justify why you still need the help.

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All -

The Army's "Service Contract Approval Request" (also known as a SCAR - and it lives up to its initials) has ABSOLUTELY NOTHING to do with the Service Contract Act. It stems from the Army Policy for Civilian Hiring and Initiation/Continuation of Contracts for Service Personnel signed by the Secretary of the Army on 23 Feb 2006. All relates to insourcing and the SCAR basically requires the requesting organization to explain why they cannot perform the services requested with the people they are authorized on their manning document. And this is an annual requirement so has to be done before each option to justify why you still need the help.

woops85: I know that. I would appreciate your response to the 3 discussion items in my initial post. Thank you.

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First, software isn't a service. In fact, the OMB supplement to A-11 says most software is a capital asset like a building, a motor vehicle or an aircraft. You usually sign a license to use the software for a stated period of time for a fee. You also usually have the option to pay for upgrades and enhancements to that software, which commonly is referred to as "maintenance."

Now Marquette's situation involves paying the software developer to help when a new software release doesn?t work properly after it's installed. This usually is because the software must also work with other installed software and glitches occur when you update one. You need the developer of the software to take a look at the problem and tell you how to fix it.

Unless you need a lot of help, this service is for token amounts of support. Marquette said last year, the software vendor provided none. This year it's estimated at $47,000. This work can only be provided through someone that knows the software - the developer. It's not a question of performing an inherently governmental function or whether the government has people to do the work. Its support from the company that developed the software you are using.

As opposed to writing up a justification and obtaining an approval from a General Officer or SES, I would make a note to the file, pat myself on the back for freeing up the General Officer or SES's time to attend to important matters, and move on.

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Guest Vern Edwards

If you are buying a file containing software, then you are not buying a service. If you are hiring someone to design and write or document code on an ongoing basis, i.e., to provide "support," then you are buying a service.

If you are buying a service, the question is then whether the contractor employees who will write or document code are service employees, as defined in FAR 22.1001. In order you make the latter determination you may have to refer to 29 CFR Part 541.

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