Can you guide me to the regulation stating we can use Functional Area Evaluators in this role?
A question from one of our “regulars” here at AAP.
Open full Question Details
In a word… “Absolutely”!! So long as certain conditions are met.
Before I provide the rationale for that answer, please note that this is a case of getting bogged down in semantics, terminology and duty titles… and I will explain why. Also, often times the rules will not spell out EVERY way possible to accomplish something. In many instances it is just much easier for a regulation to identify things that can’t be done; rather than identify the overwhelming majority of ways something could be done. Examples include most of the fiscal law regulations and this one from FAR Guiding Principles; 1.102(d):
“In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.”
So, your scenario basically involves the concept of “inspection” of contractor performance. Often times, as we like to say in class, “it takes a village” to determine if a contractor is performing in accordance with contract requirements/specifications. We’ve written about this concept many, many times before here at AAP.
“Inspection” in-and-of-itself is not an inherently governmental function [reference FAR 7.503(d)(17)]. This is why we are allowed to rely on other organizations, agencies, and even contractors sometimes to help us with inspection when we do not have the expertise or the manpower to accomplish it within our own organization. However, government “acceptance” is inherently governmental [reference 7.503(c)(12)(v) and 7.503(c)(17)]. Note: bold italics added for emphasis. If not done by the KO, it must be delegated in writing by the KO to someone. But I digress…
Many times (especially on a service contract) the QASP might identify surveys or customer complaints as a way to monitor, document, and report performance. Typically it makes little difference who these surveys or customer complaints came from, it’s an acceptable data point of contractor performance.
Back to your specific question and the rationale for my answer of absolutely…
If it was part of the acquisition strategy or QASP development that FAEs would be needed (see AFI 63-138) to help monitor, document and report contractor performance; great!! Does the COR appointment letter or some other local directive exist specifying how FAEs will be identified, nominated and assigned? I’ll guess there probably is. But let’s say there wasn’t… As long as the contracting officer and the requiring activity have no problem with the way and manner FAEs get identified and assigned, then there is absolutely no issue.
Here’s where a problem might arise and where the regulations do provide some guidance.
So long as these FAEs are just monitoring, documenting and reporting contractor performance to the COR or the KO (or a PM) things are good. Because, it still has to be validated as being accurate, correct? Typically that is done in the event the contractor (or the COR, or the KO, or the requiring activity, etc.) disagrees with the FAE’s assessment.
And, so long as these FAEs doing contract surveillance are not conducting formal acceptance (e.g. approving invoices or signing a DD250, press a button in WAWF, etc.) OR communicating technical direction, guidance or corrective action directly to the contractor; all is good. If they are, they need to be a trained and certified COR.
We have many scenarios where subject matter expert review contractor provided documents, monitor contractor performance, or conduct inspections because of their training and knowledge in the subject area; but they do not necessarily communicate directly to or with the contractor and do not act as the voice of the government for providing technical direction and/or guidance. Rather they forward their input to someone else (another COR or KO?) who is actually documenting the formal acceptance in WAWF and providing feedback, direction, guidance to the contractor.
If that is the situation you are in, there is no DoD level policy mandating who identifies and assigns them (FAEs). Wide latitude is given to components and organizations for determining this process and procedure.
All of the service components have similar scenarios to yours, they just use different terminology. The Navy has a Guide on the use of Performance Assessment Representatives (PARs), the Army as an Army Regulation on using quality assurance evaluators and specialists (QAE/QAS), and I’m sure DLA, DISA etc. have something similar as well.