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    Can the other service contractors be required, or even "requested", to perform the cleaning/janitorial services (such as taking out trash, cleaning restrooms, dusting, etc.) if these services are not included in their contract Statement of Work or Performance Work Statement?


    Answer

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

    FAR 43.201 -- General
    (a) Generally, Government contracts contain a changes clause that permits the contracting officer to make unilateral changes, in designated areas, within the general scope of the contract.

    FAR 52.243-1 – Changes - Fixed-Price (Alternate I) and
    FAR 52.243-2 – Changes - Cost-Reimbursement (Alternate I)
    (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:
      (1) Description of services to be performed.
      (2) Time of performance (i.e., hours of the day, days of the week, etc.).
      (3) Place of performance of the services.

    DFARS 237.102-74 -- Taxonomy for the acquisition of services
    See [DFARS] PGI 237.102-74 for “OUSD(AT&L) DPAP memorandum, “Taxonomy for the Acquisition of Services and Supplies & Equipment,” dated August 27, 2012
    http://www.acq.osd.mil/dpap/policy/policyvault/USA004219-12-DPAP.pdf

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

    A. 31 USC § 1342 - Limitation on voluntary services [excerpt from the Anti-Deficiency Act]
    http://www.law.cornell.edu/uscode/text/31/1342

    An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. … As used in this section, the term “emergencies involving the safety of human life or the protection of property” does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.

    B. Administration of Government Contracts, Fourth Edition (2006), John Cibinic, Jr., Ralph C. Nash, James F. Nagle; The George Washington National University Law Center; pages 382, 283, & 387.
      This reference provides the following commentary regarding the Meaning of “Within the General Scope” that is found in case law.

      (1) In Freund v. United States, 260 U.S. 60 (1922), the Court stated that the work performed falls within the general scope if it “should be regarded as having been fairly and reasonably within the contemplation of the parties when the contract was entered into.” The Court of Claims usually stated that the test as being whether the work was “essentially the same work as the parties bargained for when the contract was awarded,” Aragona Constr. Co. v. United States, 165 Ct. Cl. 382 (1964).

      (2) Therefore, if a proposed change alters the type of work called for by the contract, it is very likely to be held to be outside the scope of the contract and therefore be subject to competitive acquisition procedures.  In Makro Janitorial Services, Inc., Comp. Gen. Dec. B-282690, 99-2 CPD ¶ 39 (Aug 1999), a task order for housekeeping work was found by the GAO to be outside the scope of a contract for equipment maintenance, and in Stoehner Security Services, Inc. Comp. Gen. Dec. B-248077.3, 92-2 CPD ¶ 275 (Oct 1992), a change adding work calling for higher-skilled personnel was also found by the GAO to be outside the scope of the contract.

    3. The DPAP memorandum referenced in DFARS 237.102-74 identifies nine major services portfolios. Three of these separate services portfolios are: (1) Knowledge Based Services (a.k.a. Advisory & Assistance Services) which includes Engineering and Technical Services, (2) Electronic and Communication Services (which includes IT Services), and (3) Facility Related Services (which includes housekeeping services). Therefore, based on the case law described in reference 2B above, the altering of the current contracts for Knowledge Based services and/or for IT services by adding the performance of janitorial services would clearly be outside the general scope of those contracts.

    4. For the types of services in question, fixed-price contracts include clause FAR 52.243-1, and cost reimbursement contracts include clause FAR 52.243-2. Under provisions of these clauses, the Contracting Officer only has the right to order changes that are within the general scope of the contract. Therefore, neither clause would authorize the Contracting Officer to issue change orders to the current service contracts that, in effect, would “require” the contractor to perform janitorial services because the performance of such work is not within the general scope of those contracts.

    5. As indicated in reference 2A above, the Antideficiency Act prohibits federal employees from accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. Consequently, Government personnel are prohibited from even “requesting” the contractors to assist with weekly cleaning efforts such as those described in this inquiry because such action would be tantamount to soliciting voluntary services from the contractors which is strictly prohibited under the Act.

    6. In summary, based on the rationale presented above, A&AS and IT service contractors cannot be required or requested to perform any cleaning/janitorial services if these services are not included in their current contract Statements of Work or Performance Work Statements.


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