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  • Question

    What reg governs interaction between contractors from two different contracting organizations who are working on the same project? can one contractor give the other contractor direct if the federal employee instructs the first contractor to do so?


    Answer

    1. The FAR references quoted below in pertinent part are applicable to this response. Because this inquiry is from an employee of the Department of Health and Human Services (HHS), the references quoted below in pertinent part from the HHS Acquisition Regulation (HHSAR) and from the DHHS Project Officer’s’ Contracting Handbook are also applicable to this response.

    FAR 2.101 -- Definitions
    “Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing.

    “Contracting officer” means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer.

    “Contracting officer’s representative (COR)” means an individual, including a contracting officer’s technical representative (COTR), designated and authorized in writing by the contracting officer to perform specific technical or administrative functions.

    HHSAR 302.101 -- Definitions
    (c) Contracting Officer's Technical Representative is a Federal employee whom a Contracting Officer has designated in writing to act as the Contracting Officer's representative in monitoring and administering specified aspects of contractor performance after award of a contract or order that exceeds the simplified acquisition threshold.

    DHHS Project Officer’s’ Contracting Handbook (Rev. dated 012303)
    Section V – Post-Award Administration [Summary Excerpts]
    Contract administration is the responsibility of the Contracting Officer. He or she delegates certain authority to the Project Officer and holds the Project Officer accountable for exercising that authority properly. In fact, the Project Officer often is described as the Contracting Officer’s technical representative (COTR), or by other similar terms.

    In most cases, the Contracting Officer authorizes the Project Officer to perform the following functions in administering and monitoring the technical work of the contractor, and performing quality assurance and inspection of deliverables:
      ·  Determine and list the deliverables required from the contractor, with due dates
      ·  Monitor the contractor’s compliance with schedule (i.e., deliverables)
      ·  Review and approve, or reject, technical deliverables
      ·  Give technical direction to contractor
      ·  Ensure all work is in accordance with the contract requirements
      ·  Review and monitor progress reports and work plans
      ·  Ensure the contractor is complying with its quality control systems
      ·  Advise the Contracting Officer of work that is accepted or rejected
      ·  Ensure the contractor properly corrects all defects and omissions

    2. As indicated in the FAR and HHSAR references described above, only the HHS COTR duly appointed by the Contracting Officer, and no one else but the Contracting Officer, may perform specific contract technical or administrative functions or monitor and administer specified aspects of contractor performance after award of a given contract. In fact, one of these specific functions set forth in the DHHS Project Officer’s’ Contracting Handbook is giving technical direction to the Government contractor. Based on these expressly stated requirements, we believe that one independent Government contractor cannot be authorized, either by the Contracting Officer or by the COTR, to give another independent Government contractor (i.e., versus the prime contractor’s subcontractor) direction of any kind, including the “relay of instructions” as contemplated by this inquiry. Additionally, we believe that the DHHS Project Officer’s’ Contracting Handbook, as well as the HHS (FAC-COR) Handbook dated January 2012, provides adequate policy guidance that would enable HHS personnel to determine what they can and cannot allow contractors to do.


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