SUBPART
237.1--SERVICE CONTRACTS--GENERAL
(Revised
September 15, 2008)
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.
237.104 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.
237.101 Definitions.
“Increased performance of
security-guard functions,” as used in this subpart, means--
(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
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.
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
(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
(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
(2) Is for the performance of security functions
at any military installation or facility in the
(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
(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) (Pop-up Window or PGI Viewer Mode) 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.
357(b).
(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(Pop-up Window or PGI Viewer Mode)
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
(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.
(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 $78.5 million, obtain the approval of the official
designated by the department or agency.
(2) For
acquisitions exceeding $78.5 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
(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) (Pop-up Window or PGI Viewer Mode).
237.171-4 Contract clause.
Use the clause at
252.237-7019, Training for Contractor Personnel Interacting with Detainees, in
solicitations and contracts for the acquisition of services if—
(a) The clause at
252.225-7040, Contractor Personnel Supporting a Force 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.
.