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  • Question

    is there any authority that precludes the Australians from participating in either the Technical management or past performance on a US Military Construction Contract?


    Answer

    The answer below is based upon an analysis under the Federal Acquisition Regulations (FAR). There is an important caveat that should be highlighted:  if the proposed evaluator is a military or civilian representative of the Australian government/military there may be non-FAR provisions that are applicable, such as treaties or status of forces agreements.  With respect to the FAR analysis:
     
    Non-Government Advisors –
    -- May be authorized, but should be minimized as much possible (1.4.5.2)
    -- Non-Government advisors, other than Federally Funded Research and Development Centers (FFRDCs), shall be supported by a written determination based on FAR 37.203 and 37.204.
     
    All non-Government advisors shall sign the non-disclosure agreement signed by all Government employees who are participating in the source selection (1.4.5.2.1
    -- Submit documentation to the PCO
    -- PCO must ensure Government has received consent of the submitting contractor(s) to provide access to the contractor who is to assist in the source selection
     
    Non-Government advisors may assist in and provide input regarding the evaluation, but they may not determine ratings or rankings of offerors’ proposals 1.4.5.2.2.
    -- Disclosure of past performance information to non-Government personnel is strictly prohibited (FAR 15.305 (c) For restrictions on the use of support contractor personnel in proposal evaluation, see 37.203(d).
     
    37.203 Policy.
    (a) The acquisition of advisory and assistance services is a legitimate way to improve Government services and operations. Accordingly, advisory and assistance services may be used at all organizational levels to help managers achieve maximum effectiveness or economy in their operations.
    (b) Subject to 37.205, agencies may contract for advisory and assistance services, when essential to the agency’s mission, to—
    (1) Obtain outside points of view to avoid too limited judgment on critical issues;
    (2) Obtain advice regarding developments in industry, university, or foundation research;
    (3) Obtain the opinions, special knowledge, or skills of noted experts;
    (4) Enhance the understanding of, and develop alternative solutions to, complex issues;
    (5) Support and improve the operation of organizations; or
    (6) Ensure the more efficient or effective operation of managerial or hardware systems.
    (c) Advisory and assistance services shall not be—
    (1) Used in performing work of a policy, decision-making, or managerial nature which is the direct responsibility of agency officials;
    (2) Used to bypass or undermine personnel ceilings, pay limitations, or competitive employment procedures;
    (3) Contracted for on a preferential basis to former Government employees;
    (4) Used under any circumstances specifically to aid in influencing or enacting legislation; or
    (5) Used to obtain professional or technical advice which is readily available within the agency or another Federal agency.
    (d) Limitation on payment for advisory and assistance services. Contractors may not be paid for services to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract award unless—
    (1) Neither covered personnel from the requesting agency, nor from another agency, with adequate training and capabilities to perform the required proposal evaluation, are readily available and a written determination is made in accordance with 37.204;
    (2) The contractor is a Federally-Funded Research and Development Center (FFRDC) as authorized in 41 U.S.C. 1709(c) and the work placed under the FFRDC's contract meets the criteria of 35.017-3; or
    (3) Such functions are otherwise authorized by law.
    37.204 Guidelines for determining availability of personnel.
    (a) The head of an agency shall determine, for each evaluation or analysis of proposals, if sufficient personnel with the requisite training and capabilities are available within the agency to perform the evaluation or analysis of proposals submitted for the acquisition.
    (b) If, for a specific evaluation or analysis, such personnel are not available within the agency, the head of the agency shall—
    (1) Determine which Federal agencies may have personnel with the required training and capabilities; and
    (2) Consider the administrative cost and time associated with conducting the search, the dollar value of the procurement, other costs, such as travel costs involved in the use of such personnel, and the needs of the Federal agencies to make management decisions on the best use of available personnel in performing the agency’s mission.
    (c) If the supporting agency agrees to make the required personnel available, the agencies shall execute an agreement for the detail of the supporting agency’s personnel to the requesting agency.
    (d) If the requesting agency, after reasonable attempts to obtain personnel with the required training and capabilities, is unable to identify such personnel, the head of the agency may make the determination required by 37.203.
    (e) An agency may make a determination regarding the availability of covered personnel for a class of proposals for which evaluation and analysis would require expertise so unique or specialized that it is not reasonable to expect such personnel to be available.
    37.205 Contracting officer responsibilities.
    The contracting officer shall ensure that the determination required in accordance with the guidelines at 37.204 has been made prior to issuing a solicitation.

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