Are representations and certifications required to establish Educational Service Agreements (ESA) Basic Ordering Agreements (BOAs)?
While DFARS 237.7204 discusses the format and clauses for educational service agreements and FAR 52.204-8 Annual Representations and Certifications (and/or DFARS 252.204-7007) is not on the list of clauses to be included in the final agreement, however if you refer to FAR 4.1201 in the case of educational service agreements the institution is a “contractor” and therefore as a “contractor” is subject to the following:
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4.1201 – Policy.
(a) Prospective contractors shall complete electronic annual representations and certifications at SAM accessed via https://www.acquisition.gov as a part of required registration (see FAR 4.1102).
In addition FAR 4.1102 requires all contractors to be registered in SAM and gives only certain exceptions and Educational Service Agreements are not included as an exception:
4.1102 -- Policy.
(a) Prospective contractors shall be registered in the SAM database prior to award of a contract or agreement, except for--
(1) Purchases under the micro-purchase threshold that use a Governmentwide commercial purchase card as both the purchasing and payment mechanism, as opposed to using the purchase card for payment only;
(2) Classified contracts (see 2.101) when registration in the SAM database, or use of SAM data, could compromise the safeguarding of classified information or national security;
(3) Contracts awarded by—
(i) Deployed contracting officers in the course of military operations, including, but not limited to, contingency operations as defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping operations as defined in 10 U.S.C. 2302(7);
(ii) Contracting officers located outside the United States and its outlying areas, as defined in 2.101, for work to be performed in support of diplomatic or developmental operations, including those performed in support of foreign assistance programs overseas, in an area that has been designated by the Department of State as a danger pay post (see http://aoprals.state.gov/Web920/danger_pay_all.asp); or
(iii) Contracting officers in the conduct of emergency operations, such as responses to natural or environmental disasters or national or civil emergencies, e.g., Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121);
(4) Contracts with individuals for performance outside the United States and its outlying areas;
(5) Contracts to support unusual or compelling needs (see 6.302-2);
(6) Contract actions at or below $25,000 awarded to foreign vendors for work performed outside the United States, if it is impractical to obtain System for Award Management registration; and
(7) Micro-purchases that do not use the electronic funds transfer (EFT) method for payment and are not required to be reported (see Subpart 4.6).
The FAR goes on to say that the contracting officer has to verify the registration and it applies to agreements:
4.1103 -- Procedures.
(a) Unless the acquisition is exempt under 4.1102, the contracting officer--
(1) Shall verify that the prospective contractor is registered in the SAM database (see paragraph (b) of this section) before awarding a contract or agreement.