Do we need to add clauses to GSA Awards?
Based on FAR 8.404 (c) (3) "Orders placed under a Federal Supply contract must, whether placed by the requiring agency, or on behalf of the requiring agency, be consistent with the requiring agency's statutory and regulatory requirements applicable to the acquisition of the supply or service." DFARS 2.804(a) (ii) makes it mandatory for departments and agencies to comply with the review, approval, and reporting requirements established in accordance with DFARS subpart 217.78 which specifically addresses Contracts or Delivery Orders Issued by a Non-DoD Agency. The policy at DFARS 217.7802 (b) requires departments and agencies to establish and maintain procedures for reviewing and approving orders placed for supplies and services under non-DoD contracts, whether through direct acquisition or assisted acquisition, when the amount of the order exceeds SAT. It further states at subparagraph (3) that these procedures shall include providing unique terms, conditions, and requirements to the assisting agency for incorporation into the order or contract as appropriate to comply with all applicable DoD-unique statutes, regulations, directives, and other requirements.
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The Office of the Under Secretary of Defense issued a memo Proper Use of GSA Federal Supply Schedule Contracts -A Reminder dated July 31, 2015. This memo specifically states, "With regards to the proper use of GSA schedules, it is imperative that the contracting workforce follow sound procedures consistent with regulation, policy, and standard Department procedures. The following guidance is provided when placing orders against GSA schedule contracts: In accordance with FAR 8.404 (b) (1), the contracting officer, when placing an order under a Schedule, or establishing a BPA under a schedule, is responsible for applying to the order or BPA, the regulatory and statutory requirements applicable to the Department including appropriate DFARS clauses". This memo may be accessed at http://www.acq.osd.mil/dpap/policy/policyvault/USA004263-15-DPAP.pdf
The Memorandum of Agreement (MOA) between DoD and GSA states "As partners, DoD and GSA recognize the need to collaborate on Interagency Acquisition requirements. As individual organizations, each have specific responsibilities in all parts of this plan to ensure that all acquisitions conducted by utilizing GSA contract vehicles or on behalf of DoD by GSA contracting officers are compliant with statute, regulation and applicable policy".
Based on the FAR, DFARS, and the policy memo above, it is mandatory for DoD activities to apply the appropriate regulatory and statutory requirements to include DFARS clauses to orders/awards placed under GSA contracts. The MOA between the two organizations further supports this requirement.
Policy links, training opportunities, and other relevant information on Interagency Acquisition is available on the Defense Procurement and Acquisition Policy website at http://www.acq.osd.mil/dpap/cpic/cp/interagency_acquisition.html .