Does a non-government employee acting a a on-site technical inspector suffice for a COR? is there any guuidance pertaining to this issue?
The short answer is that a contractor can never be assigned as a COR. The real question you should be asking or discussing with your contracting officer and program manager is “what duties do we need to delegate and have a COR accomplish?” Ultimately the Contracting Officer must make that decision based on the advice given to him/her.
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Let me provide some background which may help you in your discussions on how to best assign a COR and select the specific duties the COR should have.
The Federal Acquisition Regulation (FAR) and Defense Supplement provide the following guidance on when a COR is required and who is authorized to be nominated and perform as a COR.
A link to the FAR and all Agency Supplements is: http://farsite.hill.af.mil/
FAR 1.602-2(d) Unless the contracting officer retains and executes the contracting officer’s representative (COR) duties, in accordance with agency procedures, designate and authorize, in writing, a COR on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate. See 7.104(e). A COR—
(1) Shall be a Government employee, unless otherwise authorized in agency regulations;
The Defense Federal Acquisition Regulation Supplement (DFARS), goes on to clarify who can be a COR:
(1) Follow the procedures at PGI 201.602-2 regarding designation, assignment, and responsibilities of a contracting officer's representative (COR).
(2) A COR—
(i) Must be an employee, military or civilian, of the U.S. Government, a foreign government, or a North Atlantic Treaty Organization/coalition partner. In no case shall contractor personnel serve as CORs;
There is also a DoD COR HDBK which has additional information: a link can be found at: www.acc.dau/mil/cor or http://www.acq.osd.mil/dpap/cpic/cp/panel_on_contracting_integrity.html
It is not uncommon for Agencies to contract for specialists to conduct surveillance and inspection on complex efforts. In these cases, they normally report to the government what their findings, observations, recommendations are but have absolutely NO authority to provide technical direction directly to the contractor or accept contractor work on behalf of the gov’t. A contractor can never “Accept” on behalf of the Government. In these instances the COR is often nothing more than a “communication conduit” between various subject matter experts, the contractor and the Contracting Officer. They have few if any direct surveillance or inspection duties delegated to them. Perhaps an arrangement like that could work in your case.
The Contracting Officer could maintain some duties that in other circumstances would be delegated to a COR and perhaps even assign the govt Program Manager as a COR as well. The goal would be determine who would do Government Acceptance and who from the Goverenment would/is authorized to provide technical direction to the contractor when the inspection contractor says it is required. This then leads to the question: Who will be the COR on the contract that delivers the inspectors? It could be the same COR.