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FAR

FAC Number: 2022-08
Effective Date: 09/23/2022

Subpart 7.3 - Contractor Versus Government Performance

7.300 [Reserved]

7.301 Definitions.

Definitions of "inherently governmental activity" and other terms applicable to this subpart are set forth at Attachment D of the Office of Management and Budget Circular No. A-76 (Revised), Performance of Commercial Activities, dated May 29, 2003 (the Circular).

7.302 Policy.

      (a) The Circular provides that it is the policy of the Government to-

           (1) Perform inherently governmental activities with Government personnel; and

           (2) Subject commercial activities to the forces of competition.

      (b) As provided in the Circular, agencies shall-

           (1) Not use contractors to perform inherently governmental activities;

           (2) Conduct public-private competitions in accordance with the provisions of the Circular and, as applicable, these regulations;

           (3) Give appropriate consideration relative to cost when making performance decisions between agency and contractor performance in public-private competitions;

           (4) Consider the Agency Tender Official an interested party in accordance with 31 U.S.C. 3551 to 3553 for purposes of filing a protest at the Government Accountability Office; and

           (5) Hear contests in accordance with OMB Circular A-76, Attachment B, Paragraph F.

      (c) When using sealed bidding in public-private competitions under OMB Circular A-76, contracting officers shall not hold discussions to correct deficiencies.

7.303 [Reserved]

7.304 [Reserved]

7.305 Solicitation provisions and contract clause.

      (a) The contracting officer shall, when soliciting offers and tenders, insert in solicitations issued for standard competitions the provision at 52.207-1, Notice of Standard Competition.

      (b) The contracting officer shall, when soliciting offers, insert in solicitations issued for streamlined competitions the provision at 52.207-2, Notice of Streamlined Competition.

      (c) The contracting officer shall insert the clause at 52.207-3, Right of First Refusal of Employment, in all solicitations which may result in a 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. The 10-day period in the clause may be varied by the contracting officer up to a period of 90 days.

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