37.114 Special acquisition requirements
Source: FAR 37.114 on acquisition.gov
Service contracts involving advice or analysis require strict oversight and clear contractor identification to prevent contractors from performing inherently governmental functions or being mistaken for government officials.
Overview
FAR 37.114 addresses the special acquisition requirements for service contracts where contractors provide advice, opinions, recommendations, analyses, or similar work products that could influence government decision-making. The regulation emphasizes the need for agencies to maintain clear boundaries between contractor support and inherently governmental functions, ensuring that government officials retain authority and accountability. It requires agencies to assign enough qualified government personnel to oversee contractor activities, especially in areas closely supporting inherently governmental functions. Enhanced management oversight and scrutiny are mandated for such contracts. Additionally, contractors must clearly identify themselves in interactions and on documents to prevent confusion about their status as non-government personnel, unless the agency determines that such identification is unnecessary and harmless.
Key Rules
- Oversight of Contractor Activities
- Agencies must assign sufficient qualified government employees to oversee contractor activities, particularly those supporting policy or decision-making, and prevent contractors from performing inherently governmental functions.
- Enhanced Management for Sensitive Functions
- Greater scrutiny and enhanced management oversight are required for contracts supporting functions closely related to inherently governmental activities.
- Contractor Identification
- Contractor personnel must identify themselves in meetings, on the phone, and in documents to avoid the impression they are government officials, unless the agency determines otherwise. All contractor-produced documents must be clearly marked or disclosed as such.
Responsibilities
- Contracting Officers: Ensure contracts do not cross into inherently governmental functions, assign adequate oversight, and enforce identification requirements.
- Contractors: Clearly identify their status in all relevant interactions and documentation, and avoid performing inherently governmental functions.
- Agencies: Provide sufficient oversight, apply enhanced management for sensitive functions, and determine when identification requirements may be waived.
Practical Implications
- This section exists to protect the integrity of government decision-making and prevent improper delegation of governmental authority to contractors.
- It impacts daily contracting by requiring careful oversight, clear role delineation, and transparency in contractor interactions.
- Common pitfalls include insufficient oversight, contractors performing prohibited functions, or failing to properly disclose contractor status.
Contracts for services which require the contractor to provide advice, opinions, recommendations, ideas, reports, analyses, or other work products have the potential for influencing the authority, accountability, and responsibilities of Government officials. These contracts require special management attention to ensure that they do not result in performance of inherently governmental functions by the contractor and that Government officials properly exercise their authority. Agencies must ensure that-
(a) A sufficient number of qualified Government employees are assigned to oversee contractor activities, especially those that involve support of Government policy or decision making. During performance of service contracts, the functions being performed shall not be changed or expanded to become inherently governmental.
(b) A greater scrutiny and an appropriate enhanced degree of management oversight is exercised when contracting for functions that are not inherently governmental but closely support the performance of inherently governmental functions (see 7.503(c)).
(c) All contractor personnel attending meetings, answering Government telephones, and working in other situations where their contractor status is not obvious to third parties are required to identify themselves as such to avoid creating an impression in the minds of members of the public or Congress that they are Government officials, unless, in the judgment of the agency, no harm can come from failing to identify themselves. They must also ensure that all documents or reports produced by contractors are suitably marked as contractor products or that contractor participation is appropriately disclosed.