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    Since we are an Army contracting office can we use another agencies clauses in our contract and if so, under what authority? And under what authority would we enforce these clauses?


    Answer

    1. The following FAR and NMCAR references quoted below in pertinent part are applicable to this response:

    FAR Subpart 1.3 -- Agency Acquisition Regulations
    FAR 1.302 -- Limitations
    Agency acquisition regulations shall be limited to --
    (a) Those necessary to implement FAR policies and procedures within the agency; and
    (b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency.

    FAR 15.204-2 -- Part I -- The Schedule  [of the Uniform Contract Format]
    (c) Section C, Description/specifications/statement of work. Include any description or specifications needed in addition to Section B.

    (h) Section H, Special contract requirements. Include a clear statement of any special contract requirements that are not included in Section I, Contract clauses, or in other sections of the uniform contract format.

    FAR 15.204-3 -- Part II -- Contract Clauses.
    Section I, Contract clauses. The contracting officer shall include in this section the clauses required by law or by this part and any additional clauses expected to be included in any resulting contract, if these clauses are not required in any other section of the uniform contract format. An index may be inserted if this section’s format is particularly complex.

    FAR 52.215-8 -- Order of Precedence -- Uniform Contract Format
    Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:
    (a) The Schedule (excluding the specifications).
    (b) Representations and other instructions.
    (c) Contract clauses.
    (d) Other documents, exhibits, and attachments.
    (e) The specifications.

    NMCARS 5201.101 (FAR 1.101) – Purpose
    The Navy Marine Corps Acquisition Regulation Supplement (NMCARS) establishes uniform Department of the Navy (DoN) policies and procedures implementing and supplementing the Federal Acquisition Regulation (FAR) and the Defense FAR Supplement (DFARS).

    NMCARS 5252.200 (FAR 52.200) – Scope of subpart.
    This subpart sets forth the text of all NMCARS provisions and clauses and for each, gives a cross-reference to the location in the NMCARS that prescribes its use.

    2. The references quoted below in pertinent part are also applicable to this response.

    DoD 7000.14-R Financial Management Regulation, Volume 11A, Chapter 3, “Economy Act Orders”
    http://comptroller.defense.gov/fmr/current/11a/11a_03.pdf

    030102. Overview
    The Economy Act 31 U.S.C. §1535 provides authority for federal agencies to order goods and services from major organizations within the same agency or other federal agencies and to pay the actual costs of those goods and services. … Within the Department, an activity within a DoD Component may place an order for goods or services with (1) another activity within the same DoD Component, (2) another DoD Component, or (3) with another federal agency.

    030103. Definitions
    The following definitions apply to this chapter:
      A. Requesting Agency. The requesting agency is the customer activity that places an order for goods or services to another federal agency or DoD component. The term is synonymous with and referenced throughout various Federal government agreements as the “ordering agency”.

      B. Servicing Agency. The servicing agency is the provider activity that fills an order for goods or services from another federal agency or DoD Component. The term is synonymous with and referenced throughout various Federal government agreements as the “performing agency”.

    030303. Intra-agency Support
    DoD activities shall render requested support to other DoD activities when the head of the requesting activity determines that it would be in the best interest of the U.S. Government, and the head of the servicing activity determines that capabilities exist to render the support without jeopardizing assigned missions. These determinations are accomplished by signing a Support Agreement (blocks 8 and 9 on DD Form 1144, “Support Agreement”). No further written determinations generally are required for agreements between DoD activities.

    DD Form 1144 – SUPPORT AGREEMENT
    http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd1144.pdf

    Block 13. ADDITIONAL PROVISIONS (Use this space to continue general and/or specific provisions, as needed.)

    Guidebook for Performance-Based Services Acquisition
    4.5 Develop a Performance Work Statement (PWS) or Statement of Objectives (SOO)
    https://acc.dau.mil/CommunityBrowser.aspx?id=467584

    4.5.1 Format
    There is no mandatory format for a PWS; however, one normally includes the following:
      5. Special Requirements: This section will include information on Government Furnished Property (GFP) or Equipment (GFE). Also include any special security or safety information, environmental requirements, special work hours and contingency requirements. If necessary, include a transition plan and a listing of all applicable documents and/or directives. The number of directives referenced should be limited to those required for this specific effort such as quality standards, statutory, or regulatory.

    3. First, we assume that the acquisition in question is an Economy Act Order from the Navy (the “Requesting Agency”) to the Army (the “Servicing Agency”). If so, then our response to the first part of this inquiry is “yes”, the Army contracting activity can use Navy clauses in the contract in question under the authority of 31 U.S.C. §1535 as implemented by the DoD Financial Management Regulation (FMR) as described above.  Furthermore, given this authority, we believe that the statement in this inquiry regarding FAR 1.302 that “one agency cannot use another agency’s clauses in their contracts” is an overly restrictive interpretation of this FAR citation.

    4. As specified in DoD FMR 030303, the Army servicing activity must render the requested support, including (we believe) the use of the Navy-unique clauses, provided that the head of the requesting activity determines that it would be in the best interest of the Government, and that the head of the servicing activity determines that capabilities exist to render this additional support without jeopardizing its assigned missions. As applied to this case, the Navy requesting activity has clearly indicated that it would be in the best interest of the Government to include the Navy-unique clauses in the contract. But, if the Army servicing activity finds that the use of these clauses would require unfunded, additional technical and/or administrative support on the part of the Army, then the Navy requesting activity must make available the additional funding needed to provide for such greater effort.

    5. Pursuant to DoD FMR 030303 as described above, such agreements between the requesting and servicing activities regarding the use of the Navy-unique clauses and any required additional funding would be documented in the DD Form 1144 “Support Agreement” (e.g., in Block 13 of the form) and signed by the Approving Authorities of each activity. Therefore, in response to the second part of this inquiry, the fully executed DD Form 1144 would be the enforceable agreement under DoD regulations between the Navy requesting activity and the Army servicing activity regarding the use of the Navy-unique clauses.  The contract between the Army contracting office (i.e., the Government) and the contractor would be the vehicle under which compliance with these Navy-unique clauses would be enforceable upon the contractor.

    6. In response to the final part of this inquiry, if the Navy-unique clauses are formally set forth under NMCARS 5252.200, then these clauses could be included in Section I of the contract in accordance with FAR 15.204-3. If not, then these clauses could be specified either in Section H of the contract in accordance with FAR 15.204-2(h), or be inserted into the Performance Work Statement (PWS) in accordance with Section 4.5.1.5 of the DoD Guidebook for Performance-Based Services Acquisition as described above. However, please note that pursuant to contract clause FAR 52.215-8, the specific location in the contract where these Navy-unique clauses are placed will determine their precedence during contract administration in the event of any conflicts with other contract terms and conditions (e.g., conflicts with other Army clauses).


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