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Use of FAR Subpart 37.2 with Interagency Agreements


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Scenario:  I work at a federal agency, e.g., EPA, and am interested in having an "external" Government person, e.g., a H&HS employee, be an evaluator on a competitive procurement being conducted for R&D work.  I'm being advised in order to do this, an interagency agreement (IAA) would need to be accomplished and adhere to the terms in FAR Subpart 37.2 Advisory and Assistance Services - specific emphasis on the determination of 37.204.  This Subpart (37.2) states it prescribes "policies and procedures for acquiring advisory and assistance services by contract".  Further, FAR Part 2 definitions states, in part, "advisory and assistance services means those services provided under contract by nongovernmental sources".  Does FAR Subpart 37.2 apply to IAAs for something like this (use of a Government employee from 1 federal agency to perform as an evaluator on a competitive procurement for another federal agency)?

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I believe that 37.204 requires the agency to determine if qualified personnel are available at reasonable costs from other agencies through an Interagency agreement to evaluate proposals before contracting for advisory and assistance services…

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FAR 37.204's call for an agreement between agencies for one agency's federal employees to assist another agency in an evaluation is for a simple agreement.  It most certainly IS NOT an "interagency agreement for advisory and assistance services" -- it IS NOT related at all anything in FAR 37.203 -- it IS NOT related to anything else anywhere else in the FAR -- it IS NOT an IAA in the sense that acquisition people think about IAAs -- the assistance being provided IS NOT advisory and assistance services as that term is used in the FAR.

Your agency's HR office will know how to do any needed agreement -- if an agreement on paper is needed, it will be an HR agreement, not a procurement agreement. 

This is EASY.  

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@CldGrl22 ji20874 has sent you in the right direction.  Just a couple more thoughts on what you might want to prepare yourself for what you may encounter.  Based on experience.

HR may want to send you in the direction of a temporary detail depending on the anticipated length of effort or they may just say do it.  Either way the CO should consider the possibility of a non-disclosure/conflict of interest agreement or certification with the individual.   If you or your agency has never the encountered the need for such an agreemetn search the internet you will find examples.   I do know that the General Services Administration suggests one.   See GSA's FAR Supplerment GSAM 515-305.

Easy with usual government bureacracy attached especially if plowing ground never plowed before.

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HHS does this all the time.  Whoever at your agency (program office side) that’s arranging for the evaluator just needs to ask HHS.  They usually want to prepare the agreement for salary reimbursement.  Contracting doesn’t need to be involved unless someone decides a non-disclosure is required as Carl suggests. 

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Using the examples you provided, the EPA has a requirement for an outside party to provide evaluation services on a competitive R&D acquisition.  If the EPA were to contract for these services, it would be an Advisory and Assistance contract subject to the requirements of FAR SubPart 37.2.  If the EPA gets those services from another agency, then the services are not Advisory and Assistance services because the FAR defines Advisory and Assistance services as being, in part, "services provided under contract by nongovernmental sources..."  There is a little bit of circular logic going on there, but that's how it is defined.  

But, let's say the EPA thinks it may want to contract for these services (thereby making them A&A services and subject to SubPart 37.2), one of the first thing EPA must do is determine whether there are personnel in other agencies that can provide the services.  If so, and it makes sense from an administrative and cost perspective, and the other agency is willing, then the EPA must enter an Interagency Agreement for those services.

So, you have two ways in which the EPA can end up with H&HS providing those services.  One, EPA already knows H&HS can and will provide the services and we never even look at the FAR.  Or two, EPA thinks it will contract for A&A services, but by following the procedure at FAR Subpart 37.2, they discover that H&HS is wiling to enter an agreement to provide those services.  In either case, once it is decided that H&HS is providing the services, EPA is no longer dealing with an Advisory and Assistance contract as that term is defined in the FAR.

The parties must still enter an Interagency Agreement that details the work H&HS will do for EPA.  And absent some other statutory authority, that IAA will likely be an Economy Act agreement under which the EPA must reimburse H&HS for the actual cost of providing the services.  But, this would all be done under agency regulations and policies implementing the Economy Act (or whatever statutory authority is being used).

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This topic is being closed due to no response from the OP, in accordance with . . .

17.  Original posters must not disappear after they post a question.  Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently.  It is normal for the original poster to be asked for clarification.  The Orginal Poster has 5 calendar days after the original post to answer any questions.  After that, the Topic will be locked.

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