## Subpart 37.2---Advisory and Assistance Services 

### 37.200  Scope of subpart. 

This subpart prescribes policies and procedures for acquiring advisory
and assistance services by contract. The subpart applies to contracts,
whether made with individuals or organizations, that involve either
personal or nonpersonal services.

### 37.201  Definition. 

"Covered personnel" means---

\(1\) An officer or an individual who is appointed in the civil service
by one of the following acting in an official capacity---

\(i\) The President;

\(ii\) A Member of Congress;

\(iii\) A member of the uniformed services;

\(iv\) An individual who is an employee under 5 U.S.C. 2105;

\(v\) The head of a Government-controlled corporation; or

\(vi\) An adjutant general appointed by the Secretary concerned under
32 U.S.C. 709(c).

\(2\) A member of the Armed Services of the United States.

\(3\) A person assigned to a Federal agency who has been transferred to
another position in the competitive service in another agency.

### 37.202  Exclusions. 

The following activities and programs are excluded or exempted from the
definition of advisory or assistance services:

\(a\) Routine information technology services unless they are an
integral part of a contract for the acquisition of advisory and
assistance services.

\(b\) Architectural and engineering services as defined in the Brooks
Architect-Engineers Act (40 U.S.C. 1102).

\(c\) Research on theoretical mathematics and basic research involving
medical, biological, physical, social, psychological, or other
phenomena.

### 37.203  Policy. 

\(a\) The acquisition of advisory and assistance services is a
legitimate way to improve Government services and operations.
Accordingly, advisory and assistance services may be used at all
organizational levels to help managers achieve maximum effectiveness or
economy in their operations.

\(b\) Subject to 37.205, agencies may contract for advisory and
assistance services, when essential to the agency's mission, to---

\(1\) Obtain outside points of view to avoid too limited judgment on
critical issues;

\(2\) Obtain advice regarding developments in industry, university, or
foundation research;

\(3\) Obtain the opinions, special knowledge, or skills of noted
experts;

\(4\) Enhance the understanding of, and develop alternative solutions
to, complex issues;

\(5\) Support and improve the operation of organizations; or

\(6\) Ensure the more efficient or effective operation of managerial or
hardware systems.

\(c\) Advisory and assistance services shall not be---

\(1\) Used in performing work of a policy, decision-making, or
managerial nature which is the direct responsibility of agency
officials;

\(2\) Used to bypass or undermine personnel ceilings, pay limitations,
or competitive employment procedures;

\(3\) Contracted for on a preferential basis to former Government
employees;

\(4\) Used under any circumstances specifically to aid in influencing or
enacting legislation; or

\(5\) Used to obtain professional or technical advice which is readily
available within the agency or another Federal agency.

\(d\) *Limitation on payment for advisory and assistance
services. *Contractors may not be paid for services to conduct
evaluations or analyses of any aspect of a proposal submitted for an
initial contract award unless---

\(1\) Neither covered personnel from the requesting agency, nor from
another agency, with adequate training and capabilities to perform the
required proposal evaluation, are readily available and a written
determination is made in accordance with 37.204;

\(2\) The contractor is a Federally-Funded Research and Development
Center (FFRDC) as authorized in Section 23 of the Office of Federal
Procurement Policy (OFPP) Act as amended (41 U.S.C. 419) and the work
placed under the FFRDC's contract meets the criteria of 35.017-3; or

\(3\) Such functions are otherwise authorized by law.

### 37.204  Guidelines for determining availability of personnel. 

\(a\) The head of an agency shall determine, for each evaluation or
analysis of proposals, if sufficient personnel with the requisite
training and capabilities are available within the agency to perform the
evaluation or analysis of proposals submitted for the acquisition.

\(b\) If, for a specific evaluation or analysis, such personnel are not
available within the agency, the head of the agency shall---

\(1\) Determine which Federal agencies may have personnel with the
required training and capabilities; and

\(2\) Consider the administrative cost and time associated with
conducting the search, the dollar value of the procurement, other costs,
such as travel costs involved in the use of such personnel, and the
needs of the Federal agencies to make management decisions on the best
use of available personnel in performing the agency's mission.

\(c\) If the supporting agency agrees to make the required personnel
available, the agencies shall execute an agreement for the detail of the
supporting agency's personnel to the requesting agency.

\(d\) If the requesting agency, after reasonable attempts to obtain
personnel with the required training and capabilities, is unable to
identify such personnel, the head of the agency may make the
determination required by 37.203.

\(e\) An agency may make a determination regarding the availability of
covered personnel for a class of proposals for which evaluation and
analysis would require expertise so unique or specialized that it is not
reasonable to expect such personnel to be available.

### 37.205  Contracting officer responsibilities. 

The contracting officer shall ensure that the determination required in
accordance with the guidelines at 37.204 has been made prior to issuing
a solicitation.