PART 17-- SPECIAL CONTRACTING METHODS
TABLE OF CONTENTS
SUBPART 17.1 -- MULTI-YEAR CONTRACTS
17.104 General.
17.106 Procedures
17.106-3 Special procedures applicable to DOD, NASA and the Coast Guard
SUBPART 17.2 -– OPTIONS
17.207-90 Exercise of Options
SUBPART 17.5 -- INTERAGENCY ACQUISITIONS UNDER
THE ECONOMY ACT
17.500 Scope of Subpart
17.501-90 Definitions
17.502-90 IT and NSS Reporting Requirements
17.503 Determination and Findings Requirements
17.504-90 Economy Act D&F Procedures for Outgoing MIPRs
17.504-91 Economy Act D&F Procedures for Incoming MIPRs
SUBPART 17.90 -- GRANTS AND COOPERATIVE AGREEMENTS
17.9000 Authority
17.9001 Definitions
17.9002 Policy
SUBPART 17.91 -- PRODUCT LOAN AGREEMENT
17.9100 General
17.9101 Policy
PART 17 -- SPECIAL CONTRACTING METHODS
SUBPART 17.1 -- MULTI-YEAR CONTRACTS
(b) For multi-year contracts, the HCA may authorize modification of the requirements of this subpart and the clause at FAR 52.217-2, Cancellation Under Multi-year Contracts.
17.106-3 Special procedures applicable to DoD, NASA, and the Coast Guard.
(e) The authority to authorize recurring costs in cancellation ceilings for multi-year contracts is delegated to the HCA.
17.207-90 Exercise of Options.
(a) The requirements office will send the contracting officer a request to exercise an option and validate the requirement (statement of need).
(b) Timeline: The contracting officer must receive the request far enough in advance to allow sufficient time to send the contractor notice of intent to exercise the option under FAR Subpart 17.207(a), and before synopsis (FAR Subpart 17.207(c)(4)) if the synopsis of the option is necessary because the option was not previously addressed in the synopsis of the basic contract requirement.
(c) In addition to the statement of need, the request must include the following:
(1) Market Research. Document all market research conducted and the results (FAR/DARS
Part 10).
(2) Past Performance. Provide relevant raw data for past performance of the contractor (FAR/DARS Part Subpart 42.15
(3) Availability of Funds. Provide evidence that funds will be available upon exercise of option (e.g., Program Plan).
(d) Required markings, centered, top/bottom: "SOURCE SELECTION INFORMATION--FAR Subpart 3.104"
(e) Electronic submission is required using signed/encrypted e-mail. See DISAI 630-230-30 for e-mail security practices for the transmission of sensitive but unclassified information.
(f) The contracting officer must discuss compliance with DARS Subpart 16.601 in the D&F if exercising options under a T&M contract.
DISA ACQUISITON CIRCULAR (AC) 03-25
January 13, 2009 Cont’d
SUBPART 17.5 — INTERAGENCY ACQUISITIONS UNDER THE
ECONOMY ACT
(REVISED JANUARY 2009, DISA AC 03-25)
(1) Reimbursable supplies and services provided to DISA by another agency may require a Determination and Finding (D&F) or a Support Agreement (DD Form 1144) to support the Economy Act order (see DFARS Subpart 217.500(b), DoDI 4000.19, “Interservice and Intragovernmental Support,” and DISAI 640-50-6, “Interservice and Intragovernmental Support,” for more information regarding Support Agreements (SAs)).
(2) Authority to acquire under this subpart on behalf of DISA typically involves Military Interdepartmental Purchase Requests (MIPRs), DD Form 448, or “Reimbursable Agreement/Order for Services between Federal Agencies” (ROs), DISA Form 125. (NOTE: This subpart does not apply to MIPRs coded “MZ” used to transfer funds within DISA. See DARS Subpart 208.7005 for MIPR/RO policy).
(S-90) The Head of Contracting Office (HCO) is the point of contact for all Economy Act D&Fs under this subpart. See DARS Subpart 17.503, Tables 17-1 & 17-2 for D&F concurrence/approval authorities. In addition, the HCO will ensure the requirements office conducted market research to include reviewing and researching existing DISA contracts to determine their applicability to fulfill the customer’s requirements. By approving the Economy Act D&F, the HCO, HCA, or SPE deemed another agency’s contract to be a reasonable alternative and in the best interest of the Government.
(S-91) The Chief Financial Executive/Comptroller (CFE) is the POC for all SAs, Memoranda of Understanding (MOU), Memorandam of Agreement (MOA), and similar agreements. See DISAI 640-50-6 for required coordination and approval for SAs.
(S-92) The requirements office should determine Economy Act applicability in the initial stages of the acquisition planning process. Appendix C, Part –I, “Considerations for Determining Economy Act Applicability” provides Economy Act D&F/SA applicability, exemptions, agencies not covered by the FAR, as well as Economy Act applicability for Multi-Agency-Contracts (MACs) and Government-wide Acquisition Contracts (GWACs).
(S-93) The following methods are available for procuring supplies or services from agencies, both within and outside DoD.
Interservice Support: Obtaining reimbursable support from within DoD.
(a) Economy Act order, with D&F, when obtaining single item or a one-time purchase of supplies and services.
(b) SA, pursuant to DoDI 4000.19, when obtaining recurring supplies or services. In these cases the following language must be included in the agreement to meet the D&F requirements established by FAR Subpart 17.503.
“This agreement is consistent with and entered into under the statutory authority of the Economy Act (31 U.S.C.§ 1535). The Determination and Finding requirements outlined in FAR Subpart 17.503 are hereby satisfied by this agreement.”
Intragovernmental Support: Obtaining reimbursable support from outside DoD.
(a) Economy Act Order, with D&F, when obtaining single item or a one-time purchase of services and supplies.
(b) SA, pursuant to DoDI 4000.19, when obtaining recurring supplies or services. In these cases the following language must be included in the agreement to meet the D&F requirements established by FAR Subpart 17.503.
“This agreement is consistent with and entered into under the statutory authority of the Economy Act (31 U.S.C.§ 1535). The Determination and Finding requirements outlined in FAR Subpart 17.503 are hereby satisfied by this agreement.”
(S-94) The D&F determination shall be consistent with the statutory authority of the Economy Act (31 U.S.C.§ 1535), and incorporated into the Agreement or D&F/Economy Act requirements as outlined in FAR Subpart 17.503 as follows:
(a) Use of this interagency acquisition is in the best interest of the Government and the supplies and or services cannot be obtained as conveniently or economically by contracting directly with a private source.
(b) If the agreement requires a contracting action by the servicing agency, it must include one of the following statements as applicable:
1. The acquisition will appropriately be made under an existing contract of (insert name of servicing agency), entered into before placement of the order, to meet the requirements of (insert name of servicing agency), for the same or similar supplies and or services; or
2. (Insert name of the servicing agency) has capabilities or expertise to enter into a contract for such supplies and or services not available within DISA; or
3. (Insert name of the servicing agency) is specifically authorized by law or regulation to purchase such supplies and or services on behalf of other agencies.
(a) A D&F is required, unless--
(1) Another statutory authority may be used in lieu of an Economy Act determination. The Federal Franchise Fund Program is a statutory program established under the Government Management Reform Act of 1994 (Public Law 103-356, 108 STAT.3413 Sec.403). Franchise Programs are currently in place in six different executive agencies and departments, e.g., Commerce, Environmental Protection Agency, Health and Human Services, Interior, Treasury, and Veteran Affairs. These Franchise Fund Programs utilize a competitive process and are designed to provide common administrative support services. Another statutory authority that may be used in lieu of the Economy Act is FAR Part 8, Required Sources of Supplies and Services. NOTE: DISA restricts the use of an Economy Act D&F to acquire supplies and or services by using the General Service Administrations’ Federal Supply Schedule Program.
(2) The support is provided via Government Wide Acquisition Contract (GWAC).
(NOTE: D&F required for MACs; or see other examples of exemptions located in Appendix C.)
(3) The support is for a micro-purchase defined in FAR Subpart 2.101.
(4) A SA is executed.
(b) A S A is required unless--
(1) A statutory authority other than the Economy Act authorizes supplies and or services;
(2) A single item or one-time service is obtained;
(3) An intragovernmental sale is specifically directed or authorized by law; or
(4) The sale is for Defense Working Capital Fund (DWCF) mission products and services.
“Economy Act Order” is the documentation, i.e., PWS, SA, ISA and etc., that elaborates the terms and conditions of the written agreement between the requiring and servicing agencies. The D&F is approved and issued to establish the authority of the Economy Act, prior to the issuance of the order to the servicing agency.
Recurring Supplies and Services” means regularly or frequently acquiring the same or similar services and or supplies from the same servicing agency. Individual Economy Act D&Fs may only be used for one order for a period of one year or less on a fiscal year (FY) basis. A SA is required when obtaining recurring reimbursable supplies and services for DISA from another agency..
“Servicing Agency” means an external contracting organization with authority to place a contractual action, i.e., delivery or task order against one of its existing in-house contracts.
17.502-90 IT and NSS Reporting Requirements.
When acquiring information technology (IT), including National Security Systems (NSS) if the amount exceeds the thresholds in DARS Subpart 39.101(S-93), apply the Office of the Assistant Secretary of Defense for Networks and Information Integration (OASD (NII)) reporting requirements specified in that section.
17.503 Determination and Finding Requirements:
(a) Concurrence and Approval authorities for Economy Act D&Fs are provided by Table 17-1, Economy Act D&Fs. OUTGOING MIPRS SHALL NOT BE RELEASED to the Servicing Agency prior to an Economy Act determination which will result in the consummation and approval of one of the following documents: Economy Act D&F or an SA. If you have any questions concerning these documents contact the Policy Branch (PL21) for Economy Act D&Fs and CFE4 for SAs, MOAs, or MOUs.
ECONOMY ACT D&F APPROVAL AUTHORITIES
D&F: |
Regulatory Authority: |
Dollar Threshold: |
Concurrence: |
Approval: |
Within DoD |
FAR & DFARS |
From $3,000 to $100,000 |
1) Deputy Principal Director of the Requirements Office |
Head of the Contracting Offices (HCO) |
Within DoD |
FAR & DFAR |
Exceeding $100,000 |
1) Deputy Principal Director of the Requirements Office + 2) Head of Contracting Office (HCO) + 3) Agency Competition Advocate (ACA) ** |
Head of Contracting Activity (HCA) |
Outside of DoD |
FAR |
Any amount |
1) Deputy Principal Director of the Requirements Office + 2) Head of Contracting Office (HCO) + 3) Agency Competition Advocate (ACA) |
Head of Contracting Activity (HCA) |
Outside of DoD |
Non-FAR |
Any amount |
1) Deputy Principal Director of the Requirements Office + 2) Head of Contracting Office (HCO) + 3) Agency Competition Advocate (ACA) 4) Head of Contracting Activity (HCA) |
Senior Procurement Executive (SPE) |
(b) See Appendix C, Part –II, Table 17-2, Sample Economy Act D&Fs to facilitate the selection of the appropriate format. The table consists of the sample number, dollar threshold, authority used, and the Servicing Activity. The corresponding samples follow the referenced Table.
17.504-90 Economy Act D&F Procedures for Outgoing MIPRs.
(REVISED OCTOBER 2004, DISA AC 03-03)
(a) Preparation. The Requirements Office prepares the Economy Act D&F. The D&F is appropriate for obtaining a single item or “one-time” supplies and/or services. Appendix C, Part - III, Chart 1 illustrate the processes for Economy Act D&Fs within DoD and outside of DoD.
1. Economy Act D&F. Use one of the samples to develop an Economy Act D&F (See Appendix C).
2. Market Research. The use of the D&F does not alleviate the requirement to perform market research to determine if any existing in-house DISA contract can satisfy the requirement. A summary of the market research conducted, including why a DITCO contract, a contract DITCO could order against, or a new DITCO contract will not suffice must be part of the D&F.
3. Performance Work Statement (PWS). Provide a PWS for services or a product description if the item is a COTS product.
4. Independent Government Cost Estimate. Provide cost and pricing information that supports the overall estimated costs. This document will vary in complexity and detail, depending upon the nature of the requirement (See IGCE Deskbook for additional guidance on IGCE preparation).
5. DISA Form 9 Summary Sheet is used for staffing, coordinating, and approving the Economy Act D&F.
6. HCO LOGS. Each HCO is required to maintain an Economy Act D&F Log. The Log shall contain the ID number (Sample - DF09-001), date received, description, cost, requirement office, servicing agency, HCO POC, approval level, date approved or disapproved (as applicable), and comments. Each HCO will insure the PL21 staff has electronic access to the log.
(b) D&Fs. For all Economy Act orders exceeding $100,000, the requiring office shall prepare an D&F (for non-recurring requirements) or incorporate the information required by a D&F into a SA (for recurring requirements). The sample formats 1 through 4 for the D&Fs are located at Appendix C, PART II, Sample Economy Act D&Fs.
(c) Legal Review. Review of Economy Act D&Fs by General Counsel is at the discretion of the approving authority.
(d) Staffing and Coordination. In all instances the staffing and coordination of the Economy Act D&Fs will utilize a DISA Form 9. The minimum required routing is the Deputy Principal Director for the Requirements Office and the appropriate HCO. For Economy Act D&Fs requiring approval at a level above the HCO, the DISA Form 9 shall include the ACA, the HCA, and the SPE when required
(e) Approval Authority. For Economy Act D&Fs, the concurrence and approval authorities are listed in Table 17-1. In most instances the approval will be made by the appropriate HCO (under $100K within DoD) or the HCA ($100K or greater within DoD and any amount outside DoD with an agency required to comply with the FAR). In rare instances when the servicing activity does not comply with the FAR and DFARS, the approval authority will be the SPE. In those instances, the HCA signs the D&F in the “RECOMMENDING APPROVAL” block with the SPE’s signature constituting approval.
All incoming MIPRs shall be coordinated (via e-mail or otherwise) with the cognizant contracting officer or HCO prior to acceptance by CFE. All MIPRs (to include date received) with Economy Act D&Fs (including embedded Economy Act D&F information in the SA) are to be in the contract file.
SUBPART 17.90 — GRANTS AND COOPERATIVE AGREEMENTS
The HCA is delegated the authority to select, appoint, and terminate grants officers within DISA. This authority to award grants and cooperative agreements flows from DoD Directive 3210.6 and Interim-Guidance Draft of Defense Grant and Agreement Regulatory System (DGARS) DoD 3210.6-R.
Cooperative Agreement. A legal instrument used to enter into the same kind of relationship as a grant, except that substantial involvement is expected between the Agency and the recipient when carrying out the activity contemplated by the cooperative agreement.
Defense Grant and Agreement Regulatory System (DGARS). A system of policies and procedures to guide DoD grants and cooperative agreements. It also governs other non-procurement transactions, where provisions so indicate.
Grant. A legal instrument used to enter into a relationship, the principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Agency’s direct benefit or use. Further, it is a relationship in which substantial involvement is not expected between the Agency and the recipient when carrying out the activity contemplated by the grant.
Grants Officer. Individual authorized in writing by the HCA to enter into, administer, or terminate grants. Only grants officers shall sign such legal instruments on behalf of the Agency. Grants officers may bind only to the extent of the authority delegated to them.
(a) All requests for appointment of a grants officer shall be submitted to PL2 for processing to the HCA for approval.
(b) Candidates must complete at least one training course oriented to grants and cooperative agreements, and become knowledgeable of the DoDGARs, prior to appointment.
(c) Grant officer appointments will be issued via memorandum signed by the HCA.
SUBPART 17.91 — PRODUCT LOAN AGREEMENTS
Product Loan Agreement (PLA) is a convenient vehicle for the Government to test and evaluate commercial and developmental items for a specified period of time. The Agreement allows the Government to use the product(s) on a no-cost basis for demonstration, testing, and assessing various product(s) in the marketplace.
(a) The cognizant requirements office develops and initiates the PLA. (b) The contracting officer must coordinate any revisions to the PLA with local legal counsel. If any revisions are made, the PLA must also contain the signature of legal counsel. The contracting officer maintains the official PLA file.
(c) The contracting officer is the only individual authorized to enter into, administer, and terminate PLAs on behalf of the Government. Unauthorized signatures on PLAs could be subject to Anti-deficiency violations.
(d) The required format for PLAs is set forth below:
PRODUCT LOAN AGREEMENT
I. This Agreement sets forth the terms and conditions under which the Defense Information Systems Agency (DISA), (hereinafter, "the Government") shall accept without cost the loaned product(s) (hereinafter, “products”) listed below from __________________________ (hereinafter, "the Contractor") for testing and evaluation.
Quantity Type Description
II. The product(s) listed in paragraph I above shall be delivered to ________________________________________________ on or about _____________________(day/month/year). The Government shall acknowledgment receipt of the product(s) in writing, and retain a copy of the acknowledgment.
III. The Contractor shall bear the cost of transporting the product(s) to and from the address listed in paragraph XII and all risk of loss while they are being transported.
IV. The Government is hereby authorized to perform whatever testing it deems necessary to evaluate the products, and shall be under no obligation to pay the contractor for their use. Testing by the Government is subject only to the following limitation:
The contractor grants to the Government a nonexclusive, nontransferable license to use, perform, and execute any product(s) delivered hereunder in connection with the testing and evaluation of the product(s). No other rights expressed or implied are granted.
V. No copies of the product(s) shall be made without the prior express written consent of the contractor.
VI. Ownership of the product(s) shall, at all times, remain with the contractor.
VII. The Government shall not be liable for damage, destruction, or loss of the product(s).
VIII. In the event that damage occurs to Government property solely as a result of the use of the product(s), the contractor shall be liable, at the Government's election, for repair or replacement of the damaged property.
IX. The Government shall return the product(s) on or before ________________(day/month/year).
X. The contractor shall acknowledge return of the product(s) by providing a written receipt on the date the Government surrenders possession of the product.
XI. THE GOVERNMENT DOES NOT INTEND TO AWARD A CONTRACT ON THE BASIS OF THIS AGREEMENT AND SHALL NOT PAY FOR THE TESTING AND EVALUATION OR ANY EXPENSES INCURRED BY THE CONTRACTOR IN CONNECTION THEREWITH, EXCEPT AS STATED ABOVE. THE GOVERNMENT HAS MADE NO REPRESENTATIONS RELATIVE TO FUTURE ACQUISITIONS OF THE LOANED ITEMS. INFORMATION CONCERNING FUTURE ACQUISITIONS IS TO BE OBTAINED FROM THE CONTRACTING OFFICER IN COMPLIANCE WITH THE FEDERAL ACQUISITION REGULATION, PART 5, PUBLICIZING CONTRACT ACTIONS.
XII. The use of the product(s) under this PLA shall be for official Government business only. The place or location for demonstration and/or evaluation is listed below:
Requirements Office Code:_________________________________________________
Phone : ___________email address: __________________________________________
Address:_________________________________________________________________
_________________________________________________________________________
XIII. This Agreement constitutes the sole and entire understanding between the parties pertaining to the loan of product(s) listed in paragraph I above.
XIV. The undersigned on behalf of the Government and the contractor have read the terms of this agreement, understand the terms, and agree to abide by them.
___________________________________________
Signature of Contractor
___________________________________________ _____________
Name/Company/Title of Signer (Type or Print) Date
___________________________________________
Signature of Contracting Officer
___________________________________________ _____________
Name/Office/Code of Signer (Type or Print) Date
THE BELOW SIGNATURE IS REQUIRED IF THIS PLA HAS BEEN REVISED:
___________________________________________
Signature of Legal Counsel
___________________________________________ _____________
Name/Office/Code of Signer (Type or Print) Date
cc: Requirements Office