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SUBPART 237.1--SERVICE CONTRACTS--GENERAL

(Revised August 28, 2014)

 

 



 237.101 Definitions.
 237.102 Policy.
 237.102-70 Prohibition on contracting for firefighting or security-guard functions.
 237.102-71 Limitation on service contracts for military flight simulators.
 237.102-72 Contracts for management services.
 237.102-73 Prohibition on contracts for services of senior mentors.
 237.102-74 Taxonomy for the acquisition of services, and supplies and equipment.
 237.102-75 Guidebook for the acquisition of services.
 237.102-76 Review criteria for the acquisition of services.
 237.102-77 Automated requirements roadmap tool.
 237.102-78 Market research report guide for improving the tradecraft in services acquisition.
 237.102-79 Private sector notification requirements in support of in-sourcing actions.
 237.104 Personal services contracts.
 237.106 Funding and term of service contracts.
 237.109 Services of quasi-military armed forces.
 237.170 Approval of contracts and task orders for services.
 237.170-1 Scope.
 237.170-2 Approval requirements.
 237.171 Training for contractor personnel interacting with detainees.
 237.171-1 Scope.
 237.171-2 Definition.
 237.171-3 Policy.
 237.171-4 Contract clause.
 237.172 Service contracts surveillance.
 237.173 Prohibition on interrogation of detainees by contractor personnel.
 237.173-1 Scope.
 237.173-2 Definitions.
 237.173-3 Policy.
 237.173-4 Waiver.
 237.173-5 Contract Clause.
 237.174 Disclosure of information to litigation support contractors.



237.101  Definitions.

As used in this subpart—

 

        “Increased performance of security-guard functions,”

 

      (1)  In the case of an installation or facility where no security-guard functions were performed as of September 10, 2001, the entire scope or extent of the performance of security-guard functions at the installation or facility after such date; and

 

      (2)  In the case of an installation or facility where security-guard functions were performed within a lesser scope of requirements or to a lesser extent as of September 10, 2001, than after such date, the increment of the performance of security-guard functions at the installation or facility that exceeds such lesser scope of requirements or extent of performance.

 

“Senior mentors” means retired flag, general, or other military officers or retired senior civilian officials who provide expert experience-based mentoring, teaching, training, advice, and recommendations to senior military officers, staff, and students as they participate in war games, warfighting courses, operational planning, operational exercises, and decision-making exercises.

 

237.102  Policy.

 

      (c)  In addition to the prohibition on award of contracts for the performance of inherently governmental functions, contracting officers shall not award contracts for functions that are exempt from private sector performance.  See 207.503(e) for the associated documentation requirement.

 

      (e)  Program officials shall obtain assistance from contracting officials through the Peer Review process at 201.170.

 

237.102-70  Prohibition on contracting for firefighting or security-guard functions.

 

      (a)  Under 10 U.S.C. 2465, the DoD is prohibited from entering into contracts for the performance of firefighting or security-guard functions at any military installation or facility unless—

 

              (1)  The contract is to be carried out at a location outside the United States and its outlying areas at which members of the armed forces would have to be used for the performance of firefighting or security-guard functions at the expense of unit readiness;

 

              (2)  The contract will be carried out on a Government-owned but privately operated installation;

 

              (3)  The contract (or renewal of a contract) is for the performance of a function under contract on September 24, 1983; or

 

              (4)  The contract—

 

                    (i)  Is for the performance of firefighting functions;

 

                    (ii)  Is for a period of 1 year or less; and

 

                    (iii)  Covers only the performance of firefighting functions that, in the absence of the contract, would have to be performed by members of the armed forces who are not readily available to perform such functions by reason of a deployment.

 

      (b)  Under Section 2907 of Pub. L. 103-160, this prohibition does not apply to services at installations being closed (see Subpart 237.74).

 

      (c)  Under Section 1010 of Pub. L. 107-56, this prohibition does not apply to any contract that--

 

              (1)  Is entered into during the period of time that United States armed forces are engaged in Operation Enduring Freedom or during the period 180 days thereafter;

 

              (2)  Is for the performance of security functions at any military installation or facility in the United States;

 

              (3)  Is awarded to a proximately located local or State government, or a combination of such governments, whether or not any such government is obligated to provide such services to the general public without compensation; and

 

              (4)  Prescribes standards for the training and other qualifications of local government law enforcement personnel who perform security functions under the contract in accordance with criteria established by the Secretary of the department concerned.

 

      (d)(1)  Under Section 332 of Pub. L. 107-314, as amended by Section 333 of Pub. L. 109-364 and Section 343 of Pub. L. 110-181, this prohibition does not apply to any contract that is entered into for any increased performance of security-guard functions at a military installation or facility undertaken in response to the terrorist attacks on the United States on September 11, 2001, if--

 

              (i)  Without the contract, members of the Armed Forces are or would be used to perform the increased security-guard functions;

 

              (ii)  The agency has determined that--

 

                    (A)  Recruiting and training standards for the personnel who are to perform the security-guard functions are comparable to the recruiting and training standards for DoD personnel who perform the same security-guard functions;

 

                    (B)  Contractor personnel performing such functions will be effectively supervised, reviewed, and evaluated; and

 

                    (C)  Performance of such functions will not result in a reduction in the security of the installation or facility;

 

              (iii)  Contract performance will not extend beyond September 30, 2012; and 

 

              (iv)  The total number of personnel employed to perform security-guard functions under all contracts entered into pursuant to this authority does not exceed the following limitations:

 

                    (A)  For fiscal year 2007, the total number of such personnel employed under such contracts on October 1, 2006.

 

                    (B)  For fiscal year 2008, the number equal to 90 percent of the total number of such personnel employed under such contracts on October 1, 2006.

 

                    (C)  For fiscal year 2009, the number equal to 80 percent of the total number of such personnel employed under such contracts on October 1, 2006.

 

                    (D)  For fiscal year 2010, the number equal to 70 percent of the total number of such personnel employed under such contracts on October 1, 2006.

 

                    (E)  For fiscal year 2011, the number equal to 60 percent of the total number of such personnel employed under such contracts on October 1, 2006.

 

                    (F)  For fiscal year 2012, the number equal to 50 percent of the total number of such personnel employed under such contracts on October 1, 2006.

 

              (2)  Follow the procedures at PGI 237.102-70(d) (DFARS/PGI view) to ensure that the personnel limitations specified in paragraph (d)(1)(iv) of this subsection are not exceeded.

 

237.102-71  Limitation on service contracts for military flight simulators.

 

      (a)  Definitions.  As used in this subsection—

 

              (1)  “Military flight simulator” means any system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.

 

              (2)  “Service contract” means any contract entered into by DoD, the principal purpose of which is to furnish services in the United States through the use of service employees as defined in 41 U.S.C. 6701.

 

      (b)  Under Section 832 of Pub. L. 109-364, as amended by Section 883(b) of Pub. L. 110-181, DoD is prohibited from entering into a service contract to acquire a military flight simulator.  However, the Secretary of Defense may waive this prohibition with respect to a contract, if the Secretary—

 

              (1)  Determines that a waiver is in the national interest; and

 

              (2)  Provides an economic analysis to the congressional defense committees at least 30 days before the waiver takes effect.  This economic analysis shall include, at a minimum—

 

                    (i)  A clear explanation of the need for the contract; and

 

                    (ii)  An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:

 

                            (A)  A rationale for including the alternative.

 

                            (B)  A cost estimate of the alternative and an analysis of the quality of each cost estimate.

 

                            (C)  A discussion of the benefits to be realized from the alternative.

 

                            (D)  A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.

 

      (c)  When reviewing requirements or participating in acquisition planning that would result in a military department or defense agency acquiring a military flight simulator, the contracting officer shall notify the program officials of the prohibition in paragraph (b) of this subsection.  If the program officials decide to request a waiver from the Secretary of Defense under paragraph (b) of this subsection, the contracting officer shall follow the procedures at PGI 237.102-71 (DFARS/PGI view).

 

237.102-72  Contracts for management services.

In accordance with Section 802 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), DoD may award a contract for the acquisition of services the primary purpose of which is to perform acquisition support functions with respect to the development or production of a major system, only if—

 

      (a)  The contract prohibits the contractor from performing inherently governmental functions;

 

      (b)  The DoD organization responsible for the development or production of the major system ensures that Federal employees are responsible for determining—

 

              (1)  Courses of action to be taken in the best interest of the Government; and

 

              (2)  Best technical performance for the warfighter; and

 

      (c)  The contract requires that the prime contractor for the contract may not advise or recommend the award of a contract or subcontract for the development or production of the major system to an entity owned in whole or in part by the prime contractor.

 

237.102-73  Prohibition on contracts for services of senior mentors.

DoD is prohibited from entering into contracts for the services of senior mentors. See PGI 237.102-73 (DFARS/PGI view) for references to DoD policy and implementation guidance.

 

237.102-74  Taxonomy for the acquisition of services, and supplies and equipment.

See PGI 237.102-74 (DFARS/PGI view) for further guidance on the taxonomy for the acquisition of services and the acquisition of supplies and equipment.

 

237.102-75  Guidebook for the acquisition of services.

See PGI 237.102-75 (DFARS/PGI view) for the “Guidebook for the Acquisition of Services.”

 

237.102-76  Review criteria for the acquisition of services.

See PGI 237.102-76 (DFARS/PGI view) for tenets and review criteria to be used when conducting preaward and postaward reviews for the acquisition of services.

 

237.102-77  Automated requirements roadmap tool.

See PGI 237.102-77 (DFARS/PGI view) for guidance on using the Automated Requirements Roadmap Tool to develop and organize performance requirements into draft versions of the performance work statement, the quality assurance surveillance plan, and the performance requirements summary.

 

237.102-78  Market research report guide for improving the tradecraft in services acquisition.

See PGI 210.070 (DFARS/PGI view) for guidance on use of the market research report guide to conduct and document market research for service acquisitions.

 

237.102-79  Private sector notification requirements in support of in-sourcing actions.

In accordance with 10 U.S.C. 2463, contracting officers shall provide written notification to affected incumbent contractors of Government in-sourcing determinations. Notification shall be provided within 20 business days of the contracting officer's receipt of a decision from the cognizant component in-sourcing program official. The notification will summarize the requiring official's final determination as to why the service is being in-sourced and shall be coordinated with the component's in-sourcing program official. No formal hiring or contract-related actions may be initiated prior to such notification, except for preliminary internal actions associated with hiring or contract modification. See the OASD (RFM) memorandum entitled “Private Sector Notification Requirements in Support of In-sourcing Actions,” dated January 29, 2013, for further information, which is available at PGI 237.102-79 (DFARS/PGI view).

 

237.104  Personal services contracts.

 

      (b)(i)  Authorization to acquire the personal services of experts and consultants is included in 10 U.S.C. 129b.  Personal service contracts for expert and consultant services must also be authorized by a determination and findings (D&F) in accordance with department/agency regulations.

 

                    (A)  Generally, the D&F should authorize one contract at a time; however, an authorizing official may issue a blanket D&F for classes of contracts.

 

                    (B)  Prepare each D&F in accordance with FAR 1.7 and include a determination that—

 

                            (1)  The duties are of a temporary or intermittent nature;

 

                            (2)  Acquisition of the services is advantageous to the national defense;

 

                            (3)  DoD personnel with necessary skills are not available;

 

                            (4)  Excepted appointment cannot be obtained;

 

                            (5)  A nonpersonal services contract is not practicable;

 

                            (6)  Statutory authority, 5 U.S.C. 3109 and other legislation, apply; and

 

                            (7)  Any other determination required by statues has been made.

 

              (ii)  Personal services contracts for health care are authorized by 10 U.S.C. 1091.

 

                    (A)  This authority may be used to acquire—

 

                            (1)  Direct health care services provided in medical treatment facilities;

 

                            (2)  Health care services at locations outside of medical treatment facilities (such as the provision of medical screening examinations at military entrance processing stations); and

 

                            (3)  Services of clinical counselors, family advocacy program staff, and victim’s services representatives to members of the Armed Forces and covered beneficiaries who require such services, provided in medical treatment facilities or elsewhere.  Persons with whom a personal services contract may be entered into under this authority include clinical social workers, psychologists, psychiatrists, and other comparable professionals who have advanced degrees in counseling or related academic disciplines and who meet all requirements for State licensure and board certification requirements, if any, within their fields of specialization.

 

                    (B)  Sources for personal services contracts with individuals under the authority of 10 U.S.C. 1091 shall be selected through the procedures in this section.  These procedures do not apply to contracts awarded to business entities other than individuals.  Selections made using the procedures in this section are exempt by statute from FAR Part 6 competition requirements (see 206.001(b)).

 

                    (C)  Approval requirements for—

 

                            (1)  Direct health care personal services contracts (see paragraphs (b)(ii)(A)(1) and (2) of this section) and a pay cap are in DoDI 6025.5, Personal Services Contracts for Health Care Providers. 

 

                                    (i)  A request to enter into a personal services contract for direct health care services must be approved by the commander of the medical/dental treatment facility where the services will be performed.

 

                                    (ii)  A request to enter into a personal services contract for a location outside of a medical treatment facility must be approved by the chief of the medical facility who is responsible for the area in which the services will be performed.

 

                            (2)  Services of clinical counselors, family advocacy program staff, and victim’s services representatives (see paragraph (b)(ii)(A)(3) of this section), shall be in accordance with agency procedures.

 

                    (D)  The contracting officer must ensure that the requiring activity provides a copy of the approval with the purchase request.

 

                    (E)  The contracting officer must provide adequate advance notice of contracting opportunities to individuals residing in the area of the facility.  The notice must include the qualification criteria against which individuals responding will be evaluated.  The contracting officer shall solicit applicants through at least one local publication which serves the area of the facility.  Acquisitions under this section for personal service contracts are exempt from the posting and synopsis requirements of FAR Part 5.

 

                    (F)  The contracting officer shall provide the qualifications of individuals responding to the notice to the commander of the facility for evaluation and ranking in accordance with agency procedures.  Individuals must be considered solely on the basis of the professional qualifications established for the particular personal services being acquired and the Government’s estimate of reasonable rates, fees, or other costs.  The commander of the facility shall provide the contracting officer with rationale for the ranking of individuals, consistent with the required qualifications.

 

                    (G)  Upon receipt from the facility of the ranked listing of applicants, the contracting officer shall either—

 

                            (1)  Enter into negotiations with the highest ranked applicant.  If a mutually satisfactory contract cannot be negotiated, the contracting officer shall terminate negotiations with the highest ranked applicant and enter into negotiations with the next highest.

 

                            (2)  Enter into negotiations with all qualified applicants and select on the basis of qualifications and rates, fees, or other costs.

 

                    (H)  In the event only one individual responds to an advertised requirement, the contracting officer is authorized to negotiate the contract award.  In this case, the individual must still meet the minimum qualifications of the requirement and the contracting officer must be able to make a determination that the price is fair and reasonable.

 

                    (I)  If a fair and reasonable price cannot be obtained from a qualified individual, the requirement should be canceled and acquired using procedures other than those set forth in this section.

 

              (iii)(A)  In accordance with 10 U.S.C. 129b(d), an agency may enter into a personal services contract if—

 

                            (1)  The personal services—

 

                                    (i)  Are to be provided by individuals outside the United States, regardless of their nationality;

 

                                    (ii)  Directly support the mission of a defense intelligence component or counter-intelligence organization of DoD; or

 

                                    (iii)  Directly support the mission of the special operations command of DoD; and

 

                            (2)  The head of the contracting activity provides written approval for the proposed contract.  The approval shall include a determination that addresses the following:

 

                                    (i)  The services to be procured are urgent or unique;

 

                                    (ii)  It would not be practical to obtain such services by other means; and

 

                                    (iii)  For acquisition of services in accordance with paragraph (b)(iii)(A)(1)(i) of this section, the services to be acquired are necessary and appropriate for supporting DoD activities and programs outside the United States.

 

                    (B)  The contracting officer shall ensure that the applicable requirements of paragraph (b)(iii)(A)(2) of this section have been satisfied and shall include the approval documentation in the contract file.

 

              (iv)  The requirements of 5 U.S.C. 3109, Employment of Experts and Consultants; Temporary or Intermittent, do not apply to contracts entered into in accordance with paragraph (b)(iii) of this section.

 

      (d)  See 237.503(c) for requirements for certification and approval of requirements for services to prevent contracts from being awarded or administered in a manner that constitutes an unauthorized personal services contract.

 

      (f)(i)  Payment to each expert or consultant for personal services under 5 U.S.C. 3109 shall not exceed the highest rate fixed by the Classification Act Schedules for grade GS-15 (see 5 CFR 304.105(a)).

 

              (ii)  The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station.

 

              (iii)  Coordinate with the civilian personnel office on benefits, taxes, personnel ceilings, and maintenance of records.

 

237.106  Funding and term of service contracts.

 

      (1)  Personal service contracts for expert or consultant services shall not exceed 1 year.  The nature of the duties must be—

 

              (i)  Temporary (not more than 1 year); or

 

              (ii)  Intermittent (not cumulatively more than 130 days in 1 year).

 

      (2)  The contracting officer may enter into a contract, exercise an option, or place an order under a contract for severable services for a period that begins in one fiscal year and ends in the next fiscal year if the period of the contract awarded, option exercised, or order placed does not exceed 1 year (10 U.S.C. 2410a).

 

237.109  Services of quasi-military armed forces.

See 237.102-70 for prohibition on contracting for firefighting or security-guard functions.

 

237.170  Approval of contracts and task orders for services.

 

237.170-1  Scope.

This section—

 

      (a)  Implements 10 U.S.C. 2330; and

 

      (b)  Applies to services acquired for DoD, regardless of whether the services are acquired through--

 

              (1)  A DoD contract or task order; or

 

              (2)  A contract or task order awarded by an agency other than DoD.

 

237.170-2  Approval requirements.

 

      (a)  Acquisition of services through a contract or task order that is not performance based.

 

              (1)  For acquisitions at or below $85.5 million, obtain the approval of the official designated by the department or agency.

 

              (2)  For acquisitions exceeding $85.5 million, obtain the approval of the senior procurement executive.

 

      (b)  Acquisition of services through use of a contract or task order issued by a non-DoD agency.  Comply with the review, approval, and reporting requirements established in accordance with Subpart 217.78 when acquiring services through use of a contract or task order issued by a non-DoD agency.

 

237.171  Training for contractor personnel interacting with detainees.

 

237.171-1  Scope.

This section prescribes policies to prevent the abuse of detainees, as required by Section 1092 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375).

 

237.171-2  Definition.

“Combatant commander,” “detainee,” and “personnel interacting with detainees,” as used in this section, are defined in the clause at 252.237-7019, Training for Contractor Personnel Interacting with Detainees.    

 

237.171-3  Policy.

 

      (a)  Each DoD contract in which contractor personnel, in the course of their duties, interact with detainees shall include a requirement that such contractor personnel—

 

              (1)  Receive Government-provided training regarding the international obligations and laws of the United States applicable to the detention of personnel, including the Geneva Conventions; and

 

              (2)  Provide a copy of the training receipt document to the contractor.

 

      (b)  The combatant commander responsible for the area where the detention or interrogation facility is located will arrange for the training and a training receipt document to be provided to contractor personnel.  For information on combatant commander geographic areas of responsibility and point of contact information for each command, see PGI 237.171-3(b) (DFARS/PGI view).

 

237.171-4  Contract clause.

Use the clause at 252.237-7019, Training for Contractor Personnel Interacting with Detainees, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition of services if—

 

      (a)  The clause at 252.225-7040, Contractor Personnel Supporting U.S. Armed Force(s) Deployed Outside the United States, is included in the solicitation or contract; or

 

      (b)  The services will be performed at a facility holding detainees, and contractor personnel in the course of their duties may be expected to interact with the detainees.

 

237.172   Service contracts surveillance.

Ensure that quality assurance surveillance plans are prepared in conjunction with the preparation of the statement of work or statement of objectives for solicitations and contracts for services. These plans should be tailored to address the performance risks inherent in the specific contract type and the work effort addressed by the contract. (See FAR Subpart 46.4.) Retain quality assurance surveillance plans in the official contract file. See https://sam.dau.mil, Step Four – Requirements Definition, for examples of quality assurance surveillance plans.

 

237.173   Prohibition on interrogation of detainees by contractor personnel.

 

237.173-1   Scope.

This section prescribes policies that prohibit interrogation of detainees by contractor personnel, as required by section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84).

 

237.173-2   Definitions. As used in this subpart–

“Detainee” means any person captured, detained, held, or otherwise under the effective control of DoD personnel (military or civilian) in connection with hostilities. This includes, but is not limited to, enemy prisoners of war, civilian internees, and retained personnel. This does not include DoD personnel or DoD contractor personnel being held for law enforcement purposes.

 

“Interrogation of detainees” means a systematic process of formally and officially questioning a detainee for the purpose of obtaining reliable information to satisfy foreign intelligence collection requirements.

 

237.173-3   Policy.

 

      (a)  No detainee may be interrogated by contractor personnel.

 

      (b)  Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of detainees if—

 

              (1)  Such personnel are subject to the same laws, rules, procedures, and policies (including DoD Instruction 1100.22, Policy and Procedures for Determining Workforce Mix, (http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf); DoD Directive 2310.01E, The Department of Defense Detainee Program(http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf) ; and DoD Directive 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning, (http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf)); pertaining to detainee operations and interrogations as those that apply to Government personnel in such positions in such interrogations; and

 

              (2)  Appropriately qualified and trained DoD personnel (military or civilian) are available to oversee the contractor’s performance and to ensure that contractor personnel do not perform activities that are prohibited under this section.

 

237.173-4   Waiver.

The Secretary of Defense may waive the prohibition in 237.173-3(a) for a period of 60 days, if the Secretary determines such a waiver is vital to the national security interests of the United States. The Secretary may renew a waiver issued pursuant to this paragraph for an additional 30-day period, if the Secretary determines that such a renewal is vital to the national security interests of the United States. Not later than five days after issuance of the waiver, the Secretary shall submit written notification to Congress. See specific waiver procedures at DoDI 1100.22.

 

237.173-5   Contract clause.

Insert the clause at 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the provision of services.

 

237.174   Disclosure of information to litigation support contractors.

See 204.74 for disclosure of information to litigation support contractors.

 


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