Overview
FAR Subpart 37.2 establishes the policies and procedures for acquiring advisory and assistance services (A&AS). It defines the legitimate uses of such services—namely to improve government operations and obtain specialized expertise—while strictly prohibiting their use for inherently governmental functions or to circumvent federal personnel regulations.
Key Rules
- Permissible Uses: Agencies may use A&AS to obtain outside points of view, acquire specialized expert knowledge, enhance understanding of complex issues, or improve the efficiency of managerial and hardware systems.
- Prohibited Uses: A&AS must not be used for:
- Policy-making or managerial decision-making (direct responsibilities of agency officials).
- Bypassing personnel ceilings, pay limitations, or competitive hiring procedures.
- Giving preferential treatment to former government employees.
- Influencing or enacting legislation (lobbying).
- Obtaining advice that is already readily available within the federal government.
- Exclusions: This subpart does not apply to routine IT services (unless integral to an A&AS contract), Architectural and Engineering (A&E) services, or basic/theoretical research.
- Proposal Evaluation Restriction: Contractors generally cannot be paid to evaluate or analyze proposals for initial contract awards unless the agency head determines in writing that no qualified "covered personnel" are available across the entire federal government.
Responsibilities
- Agency Head:
- Must determine if sufficient personnel with requisite training and capabilities are available within their own agency to evaluate proposals.
- If unavailable internally, they must conduct a search across other federal agencies.
- Must consider costs (travel, administrative) and the mission impact on supporting agencies before deciding to hire a contractor.
- Authorized to make a "class determination" for highly unique or specialized expertise where federal availability is reasonably unlikely.
- Contracting Officer (CO):
- Ensures that the formal determination of personnel unavailability (required by 37.204) is documented and finalized before issuing a solicitation for A&AS related to proposal evaluation.
- Supporting Agencies:
- If they have available personnel, they must execute an agreement to detail those employees to the requesting agency.
Practical Implications
- Strict "Make-or-Buy" Logic: Agencies cannot simply outsource the evaluation of bids because they are "too busy." They must prove a lack of capability across the entire federal landscape, which creates a high administrative hurdle for using contractors in the source selection process.
- SETA and Advisory Contracts: Companies providing Systems Engineering and Technical Assistance (SETA) must be carefully screened under these rules to ensure they are not performing "policy-making" roles, which would violate the prohibition against contractors performing inherently governmental functions.
- Avoidance of Personal Services: Because this subpart applies to both personal and nonpersonal services, COs must be vigilant to ensure that A&AS contracts do not inadvertently create an employer-employee relationship between the government and the contractor's staff.
- FFRDC Exception: Federally Funded Research and Development Centers (FFRDCs) occupy a privileged position, as they are one of the few entities authorized to assist in proposal evaluations without the exhaustive "unavailability search" required for standard commercial contractors.