Is it acceptable to have Program POCs (not in a COR capacity) providing approval of invoicing data including individual contractor personnel hours or does this constitute possible personal services violation?
I’m renaming this question to “What does certifying an invoice or voucher really mean and constitute”.
What you describe is a very, very, very common and, most likely, an appropriate process. It, in and of itself, does not “constitute a possible personal services violation”. Let me try to explain what’s going on using plain language and clear regulatory/statutory terminology including a brief narrative on personal vs nonpersonal service contracts and orders.
Your scenario is the conclusion of the inspection and acceptance process for the particular period of performance the invoice covers.
Note: Typically contracting officers do not expect their CORs to be fluent or conversant with the Federal Acquisition Regulation (FAR) or Agency Supplements (that’s the contracting officer or contract specialist’s job!).
From FAR 2.101: Inspection means examining and testing supplies or services (including, when appropriate, raw materials, components, and intermediate assemblies) to determine whether they conform to contract requirements. (bold italics added for emphasis).
From FAR 46: Acceptance means the act of an authorized representative of the Government by which the Government, for itself or as agent of another, assumes ownership of existing identified supplies tendered or approves specific services rendered as partial or complete performance of the contract.
Paraphrasing from FAR 46.103(a); it requires contracting offices and the receiving activity to make sure inspection and any other quality assurance requirements to be accomplished prior to acceptance.
The contracting officer has delegated to you the authority to “accept” contractor provided services. The act of acceptance authorizes the contractor to be paid. When you certify the invoice you are performing acceptance for the government. Your Program POCs are helping with the “inspection and other quality assurance” functions. You are relying on their observations, knowledge, and expertise. Often the COR is really just a conduit of information.
Unfortunately, in today’s acquisition environment and all of the enterprise business systems (e.g. electronic invoicing and payment systems); the business process rules do not make it intuitively clear that this is the process you are going through... it just feels like you are pushing buttons. You are from VA, your agency authorizes CORs to certify invoices or vouchers on T&M and T&M/FFP contracts and orders. The DoDFMR does not authorize DoD CORs to certify invoices or vouchers for T&M or Cost Reimbursement contracts or orders. However, many CORs in DoD do not realize this because in their enterprise business system (PIEE/WAWF); the process of certifying an invoice on an FFP contract or order versus the processing of validating that all of the data associated with an invoice or voucher on a T&M or CR contract or order is accurate and complete (but not actually “certifying” it) looks practically identical!
Personal and Nonpersonal service contracts or orders:
FAR 37.104(b) states “Agencies shall not award personal services contracts unless specifically authorized by statute (e.g., 5 U.S.C. 3109) to do so.” Your agency (Department of Veterans Affairs) has a number of other statutory authorities to enter into personal service contracts. You would KNOW if your contract was for personal services. The first line of the PWS or SOW would most likely read “This is a personal services contract for XYZ services IAW...” and cite the statutory authority.
What we are concerned with and want to avoid is morphing into an improper personal services contract. Because that would be breaking the law.
Again from FAR 2.101: Personal services contract means a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees (see 37.104). And again, bold italics added for emphasis. The “or as administered” could include the way the government is conducting inspection and acceptance.
Your question used the phrase “providing approval of invoicing data”; but I think what is really happening is that your Program POCs are only validating that data is accurate and complete. You are relying on them to do that for you so that you can “approve” the invoice by certifying it. Validating that the data provided with the invoice is accurate and reflects the hours the contractor actually performed does not make contractor employees “appear to be, in effect Government employees”.