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  • Question

    Can you utilize Right of First Refusal (FAR 52.207-3) for Advisory and Assistance Services Contracts?


    Answer

    The prescription for clause FAR 52.207-3 located at FAR 7.305(c) requires using this clause when solicitations may result in conversion from in-house performance to contract performance of work currently being performed by the Government and in contracts that result from the solicitations, whether or not a public-private competition is conducted.  This prescription makes no exclusion for Advisory and Assistance Contracts (A&AS).

    Additional research on A&AS contracts in FAR subpart 37.2 reveals no specific statements prohibiting use of clause 52.207-3.  That said, FAR 37.203(c)(3) could possibly be interpreted to relate to right of first refusal if your contract applies to A&AS being contracted for on a preferential basis to former government employees though that does not seem to specifically preclude using 52.207-3.

    Finally, if applicable, you may want to refer to DFARS PGI 207.302 which talks about OMB Circular A-76 on Public-Private Competition Prohibitions.

    As always, we encourage you to work with your contracting and legal office as well as referencing your agency specific regulations for any acquisition as we don't have all the facts or access to the contract files.


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