Jacques

SDVOSB "B" admits it is not capable. Your current market research SUGGESTS SDVOSB "A" is not capable, considering Limitations on Subcontracting: So it all seems to hinge on the strength of your analysis. You haven't described your rationale on WHY you can conclude one vendor's lack of capability from another's. I don't know how much stock to put in your statement, "[A]ll these small businesses state they will have to partner with a large business in order to meet this requirement." This obviously isn't the same thing as not complying with the Limitations on Subcontracting clause.

Renting equipment shares elements of both a service and a supply, so it ends up being treated differently in different contexts or for different purposes. On one hand, from a Product Service Code perspective, it falls under Category W, which suggests a service. In the context of a delivery schedule, rentals more closely resemble a service than a supply, as the item must be furnished across a range of dates, much like a severable service, and generally unlike a simple supply contract, which typically would have only a delivery date. On the other hand, you have the examples in this thread and the following. 2 Federal Contract Management ¶ 12.09. @Lionel Hutz's reference to Part 8 seems consistent with Blue Ridge. Another fun decision is Anchorage Telephone Utility, GSBCA No. 7030, 84-1 BCA ¶ 17,020, where the Board seems almost frustrated by the whole issue: "We are not persuaded that this contract can fairly be characterized as either a supply contract or a service contract for the purposes of this appeal. Sometimes we have no choice but to pick one of two almost equally unappealing alternatives."

C Culham, At the risk of beating a dead horse, paragraph 2 of OFPP Policy Letter 11-01 begins, "Authority. This policy letter is issued pursuant to section 6(a) of the Office of Federal Procurement Policy Act, 41 U.S.C. 405(a)..." Section 405(a) is now 41 U.S.C. 1121(b). The Policy Letter does not cite to former 41 U.S.C. 405(b) or present-day 41 U.S.C. 1121(d). Paragraph 6 of the Policy Letter notes, "It is intended only to provide policy guidance to agencies in the exercise of their discretion concerning Federal contracting." See, e.g., Systems & Programming Resources Inc., B-192190, Aug. 16, 1978, 78-2 CPD ¶ 124 (stating that OFPP Policy Letters represent "expression of executive branch policy rather than requirements established by law or regulation"), followed by Johnson Controls World Servs., Inc.; Meridian Mgmt. Corp., B-281287.5 et seq., June 21, 1999, 2001 CPD ¶ 3 at 5 n.2. I don't understand why you put so much stock in an unimplemented OFPP Policy Letter, seemingly elevating it as somehow superior to a properly issued section of the FAR.

FAR 7.503(c)(20) remains authority because it remains in the FAR. Even if it conflicted with OFPP Policy Letter 11-01, it would remain authority until it was either removed from the FAR or a deviation was issued. By its own words, Policy Letter 11-01 anticipated it would be implemented in the FAR. Near as I can tell, it has not. That the Policy Letter anticipated it would be implemented in the FAR is entirely consistent with 41 U.S.C. 1121(b), which provides:

Not correct. In my post to which you took issue I argued 92-1 versus 11-01 and that was it. You on the other hand then extended your premise that 92-1 is good reference because it is what created the language of the FAR at 7.503(c)(20). I am not saying, and I have never said, that OFPP Policy Letter 92-1 represents authority in and of itself. The language that we are attempting to understand is FAR 7.503(c)(20). As that language has its origin in Policy Letter 92-1, Policy Letter 92-1 essentially represents the "legislative history" of FAR 7.503(c)(20), The history of FAR 7.503(c)(2) represents persuasive authority as to what FAR 7.503(c)(20) means. Oddly enough, OFPP Policy Letter 92-1 also represents part of the "legislative history" of the document you have been referencing, OFPP Policy Letter 11-01, so I am completely confused as to the point you are attempting to make.

I think we're talking past each other. I apparently have mischaracterized your argument, but I'm no closer to understanding it than I was yesterday.

C Culham, So, for the benefit of the OP, and with an eye to understanding the significance of our disagreement so far as it relates to the original question, let me attempt to summarize our disagreement as I understand it. I argue, to better appreciate or understand FAR 7.503(c)(20), there may be some benefit to looking to the history of the language it uses. You argue it is inappropriate to look to the history of the language that FAR 7.503(c)(20) uses, because of the mere existence of OFPP Policy Letter 11-01. Ours seems to be an entirely academic discussion. You have not explained how looking to the history leads to an improper result. That said, I am concerned your latest post is potentially misleading. You write, "No it [FAR 7.503(c)(20)] is not based on 92-1. It is based on 11-01..." Literally and chronologically, FAR 7.503(c)(20) is based on OFPP Policy Letter 92-1. As I noted earlier, FAR Case 92-051 was intended "to implement of Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, Inherently Governmental Functions." 61 Fed. Reg. 2627 (Jan. 26, 1996). While the language of FAR 7.503(c)(20) was updated to reflect GAO's name change, it has otherwise remained unchanged since FAC 90-37. Near as I can tell, FAR Subpart 7.5 has not been changed at all as a result of OFPP Policy Letter 11-01, despite the language that I quoted in an earlier post stating OFPP's expectation that Policy Letter 11-01 would be implemented in the FAR. FAR 1.108(d)(1) states, "Unless otherwise specified, ... FAR changes apply to solicitations issued on or after the effective date of the change." FAR 1.108(d)(2) continues, "Contracting officers MAY, at their discretion, include FAR changes in solicitations issued before the effective date, PROVIDED award of the resulting contract(s) occurs on or after the effective date." (emphasis added). Near as I can tell, FAR Case 2012-001 has fallen off the face of the earth without ever becoming a final rule. We obviously don't have an effective date for a FAR change, as we don't even have a FAR change. We could speculate on why that is: Maybe the powers that be decided no change in the FAR was necessary. You may have your own theory. In any case, if there was something about OFPP Policy Letter 11-01 that CONFLICTED with FAR 7.503(c)(20), the PCO would need a DEVIATION from the FAR to implement OFPP Policy Letter 11-01. Fortunately, there isn't anything that conflicts, because the Policy Letter does NOTHING to change the original meaning of the specific inherently governmental function we have been discussing. This strongly suggests the history remains relevant. Now, you might not be a fan of legislative history or its regulatory equivalent. If so, you are in good company. I personally find it instructive, and I thought others might as well, so I shared it.

To each their own. You write Policy Letter 11-01 "now stands as inherently governmental guidance." I didn't find anything that made Policy Letter 11-01 mandatory for contracting officers. In fact, your link states: 76 Fed. Reg. 56227, 56228 (Sept. 12, 2011). I thought this was going to be FAR Case 2012-001, but I don't recall it ever becoming a final rule. It seems to me Policy Letter 92-1 has a stronger connection to FAR 7.503(c)(20) than Policy Letter 11-01 does, as the language in the FAR is actually based on 92-1. In any case, I didn't find Policy Letter 11-01 particularly instructive as to the drafting question, and, as I suggested in my earlier post, I didn't see anything, either in the FAR or elsewhere, that suggests the REASON this particular inherently governmental function at FAR 7.503(c)(20) reads the way it does has changed since Policy Letter 92-1 or FAC 90-37. If you don't find the trip down memory lane to be persuasive authority, though, I certainly understand. That said, your suggestion it is "not appropriate" to use "anything other than 11-01 to draw conclusions on what is allowed" seems inconsistent with the very document you cite, when it points out it intends to "preserve a long-standing list of examples set out in the FAR of the most common inherently governmental functions." 76 Fed. Reg. at 56228 (emphasis added).

FAR Subpart 7.5 was added with FAR Case 92-051, which became a final rule with FAC 90-37. The rule was intended "to implement the Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, Inherently Governmental Functions." 61 Fed. Reg. 2627 (Jan. 26, 1996). Appendix A to OFFP Policy Letter 92-1 begins by pointing out, "With respect to the actual drafting of Congressional testimony, of responses to Congressional correspondence, and of agency responses to audit reports from the Inspector General, the General Accounting Office [now Government Accountability Office], or other Federal audit entity, see special provisions in subsection 6(c) of the text of the policy letter." In other words, the letter recognizes the normal analysis you would go through in determining whether something is inherently governmental does not necessarily apply here. Subsection 6(c) begins by describing the normal analysis but then ends by pointing out why drafting these responses are treated differently: (emphasis added). While OFPP Policy Letter 92-1 has been superseded, I didn't find anything in what followed that rejected the above quote. As the language treating this function as inherently governmental has remained, the above language seems persuasive authority. If nothing else, it is a trip down memory lane. When the final version of Office of Federal Procurement Policy (OFPP) Policy Letter 92-1 was published in on 30 September 1992 at 57 Fed. Reg. 45096, it was accompanied by comments and responses. One read as follows: 57 Fed. Reg. at 45099.

This statement is certainly true. Not knowing how sophisticated Sunlight10 is, remember that lots of requirements are incorporated by reference. So look for clauses like DFARS 252.204-7000.

Within DoD, DFARS 207.503(e) calls for using DoD Instruction 1100.22 in determining whether any of the functions to be performed by a contract are inherently governmental. DoD Instruction 1100.22, "Policy and Procedures for Determining Workforce Mix," April 12, 2010, Encl. 4, para 4b(2), lumps "manpower that has been delegated authority to" draft agency responses to audit reports as properly coded "E" (DoD Civilian Authority, Direction, and Control). However--and here is the important part--it also states, "However, contractors may provide background information to assist governmental personnel with these activities." I get that contracting has to have some basic familiarity with all kinds of different functional areas, but (at least within the DoD) "inherently governmental functions" is first and foremost in the Manpower swim lane. See FAR 7.503(e) & DoDI 1100.22, Encl. 2, para 4c.

Don, Here was the point I was trying to make: We should be suspicious of any interpretation of the DFARS that ASSUMES the DFARS language is a deviation from a requirement in the FAR. These sorts of interpretations resemble those "revocation by implication" interpretations that are disfavored when interpreting a statute. Rather, the normal rules on interpretation should be used, which includes harmonizing the language of the two regulations when they can be. FAR 1.304(b)(2) provides, “Agency acquisition regulations shall not…except as required by law or provided in subpart 1.4, conflict or be inconsistent with FAR content.” This seems to me as close as you can get to prescribing by rule the presumption against revocation by implication. Here is where that good advice gets undermined by a lazy DFARS Council and where I am forced to eat crow: DFARS 215.371-3(b)(2)(ii), in the context of "only one offer," states, "The negotiated price should not exceed the offered price." Someone submitted a comment to DFARS Case 2011-D013 that was reported in the final rule at 77 Fed. Reg. 39126 (June 29, 2012) asking whether a deviation had been processed, as, in the opinion of that commenter, the DFARS was inconsistent with FAR 15.306(d). Much to my chagrin, the response reads as follows: 77 Fed. Reg. at 39131. This is an unfortunate policy, as it seems to invite "revocation by implementation" interpretations despite the plain language of FAR 1.304(b)(2). Hopefully readers of this post don't throw the baby out with the bath water and decide they can ignore the FAR when it is possible to comply with both the FAR and the DFARS. As you might expect, the above quote from the Federal Register takes the wind out of my sails, so I really don't care about my earlier interpretation of DFARS 201.301(a)(1)(iv).

Do you really want to use this example? "Customary"? Where FAR 32.501-1(b)(2) permits "advance agency approval" to use a higher rate? I just want to make sure this is the example you want to use before I start researching.

FAR 5.303(a), while providing a default threshold of $4 million, specifically acknowledges an agency can specify “another dollar amount” in its agency acquisition regulations. DFARS 205.303 takes advantage of this flexibility, listing a $7 million threshold. Because of the language in the FAR, the DFARS Council did not need to do anything special to use a value different from the default value. FAR 1.304(b)(2) provides, “Agency acquisition regulations shall not…except as required by law or provided in subpart 1.4, conflict or be inconsistent with FAR content.” Here, when the DFARS Council promulgated DFARS 205.303(a), it did not need a statute or an approved deviation request, because the $7 million threshold is not inconsistent with FAR 5.303(a), because the FAR itself notes that the $4 million threshold is merely a default in the absence of the agency regulations saying something different. Likewise, because the value at FAR 5.303(a) is a default, a DoD contracting officer would not need an approved deviation request from FAR 5.303(a) to forego announcing a contract award valued over $4 million but under $7 million.

This has been fun. Can you stick to the OP please?

I'm sorry if I'm missing something with your question, "What do you mean, 'no deviation is required'?" Sorry if the below isn't responsive to your question. When FAR 7.103(e) is read in its full context, to include FAR Subpart 16.1 & 16.3, it does not require an acquisition plan be prepared for all cost-reimbursement contracts. Therefore, when DFARS 207.103(d) & (e) says what it says, that language does not conflict with the language in FAR 7.103(e). Therefore, the DFARS Council would not need to comply with FAR Subpart 1.4 and DFARS Subpart 201.4 to promulgate DFARS 207.103(d) & (e), and a contracting officer would not need to prepare a deviation to award, without an written acquisition plan, a cost-reimbursement contract supported by a determination signed one level above the contracting officer, merely because of the language you emphasize from FAR 7.103(e).

So the DFARS represents reasonable implementation of FAR 7.103(e), and no deviation is required.

You are reading it in isolation. FAR 7.103 gives direction to agency heads.

I guess I'll stop dancing around. There is no written deviation because there is no need for a deviation because the FAR doesn't require what you seem to assume it does. In the interim rule for FAR Case 2008-030, FAR 16.301-2(b) read, “The contracting officer shall document the rationale for selecting the contract type in the written acquisition plan and ensure that the plan is approved and signed at least one level above the contracting officer (see 7.103(j) and 7.105). If a written acquisition plan is not required, the contracting officer shall document the rationale in the contract file. See also 16.103(d).” 76 Fed. Reg. 14543, 14547 (Mar. 16, 2011). Note the context: FAR 16.301-2(b) appears in FAR 16.3, which relates to cost-reimbursement contracts. FAR 16.103(d)(1) provided, “Each contract file shall include documentation to show why the particular contract type was selected. This shall be documented in the acquisition plan, or if a written acquisition plan is not required, in the contract file.” The final version of the rule removed the highlighted language from FAR 16.301-2(b), not to represent a change, but because “the need to document the contract file with regard to selection of contract type is already adequately addressed in FAR 16.103(d)(1).” 77 Fed. Reg. 12925, 12926 (Mar. 2, 2012). A response to a comment notes, “There are circumstances, such as low dollar thresholds or non-complex contracts, when a formal acquisition plan is not required. However, if a written acquisition plan is not required, the contract type selection must still be documented in the contract file.” 77 Fed. Reg. at 12925. The disjunctive "OR" suggests agency procedures could implement the requirement for an acquisition plan in such a way that even a "complex contract," if it was a low-dollar one, need not be supported by an acquisition plan. The FAR does not require a written acquisition plan for every cost reimbursement contract. The DFARS implementation is reasonable and consistent with the FAR.

I still must be missing something. All this says is that the DFARS can contain deviations from FAR requirements. I don't think it was intended to invite folks, whenever there is a way to read an inconsistency into the two regulations, to do so. I don't think DFARS 201.301(a)(1)(iv) calls on us to ignore normal rules on harmonizing and just declare any apparent inconsistency a conflict where the reader's interpretation of the DFARS governs. When the DFARS was modified to add this language, I took it to mean that deviations would appear in the DFARS proper rather than the newly-created DFARS PGI. To invite this "repeal by implication" interpretation of FAR 201.301 also seems inconsistent with practice. In DFARS Case 2010-D018, 76 Fed. Reg. 71824 (Nov. 18, 2011), a couple commenters seem to complain the new rule deviated from the FAR. Rather than just citing to DFARS 201.301(a)(1)(iv), the response stated, "DoD has complied with the requirements of FAR subparts 1.3 and 1.4 and DFARS subparts 201.3 and 201.4." In fact, you can go back to DPAP's website and find Class Deviation 2010-O0003, Responsibility and Liability for Government Property, dated 12 Feb 2010.

Don, sorry to get semantic on you, but I'm not sure I know what you mean by this. Do you have a specific express deviation in mind?

Don't forget about Class Deviation 2019-O0001.

The "something like it" would be an interim personnel security clearance. Sorry for using the wrong vocabulary--I'm not a security person.

I think you are right to be concerned about the company's potential liability as the employment decision is with the company. Are you going to be asking for a pre-appointment waiver or something like it? If so, when you do, and you submit the questionnaire, it seems to me you could bring your concerns to the Government security folks' attention. If the Government doesn't grant the pre-appointment waiver, and having the clearance is a condition of employment, it seems you could reasonably rely on the Government's refusal to provide the waiver as a basis for the employment decision.

Is it a personal services contract?