3.8\
Special Categories of Contracting ~(Revised\ 07/2002)~

3.8.1\
Agreements

3.8.1.1\
Applicability

This section applies to products, services and real property to the
extent authorized by law.

3.8.1.2\
Policy

It is the policy of the FAA to use various agreements, other than
procurement contracts, to obtain or provide services and supplies when
necessary to accomplish the mission of the FAA. These agreements may be
made with another Federal agency or instrumentality of the Federal
government, a modal administration within the Department of
Transportation, a state, local government, municipality, or other public
entity, and private entities. (*See* 49 U.S.C. 106(l)). The following is
a list of the more commonly used agreements (other than procurement
contracts):

interagency agreements;

intra-agency agreements;

agreements with other public entities; and

agreements to provide services to a private entity on an individualized
basis.

3.8.1.3\
Principles for Agreements ~(Revised\ 07/2002)~

![](media/image1.wmf){width="0.5in"
height="0.2700787401574803in"}Agreements with other Federal Agencies (as
defined in section 551(1) of title 5) are appropriate where FAA provides
services or supplies or facilities to another Federal agency, or where
FAA is the requesting agency to receive services, or supplies, or
facilities from another Federal agency or that agency's contractor.
Where the FAA and the Department of Defense are engaged in joint actions
to improve or replenish the national air traffic system, the AMS
policies governing FAA acquisitions are applicable. In those instances
where the FAA acquires goods or services through the Department of
Defense or other agencies, the FAA is bound by the acquisition laws
governing those agencies.

3.8.2\
Service Contracting

3.8.2.1\
Applicability

This section applies to advisory and assistance contracts and other
services, including personal services such as employees support service
as provided for in FAA's Personnel Management System. This section does
not apply to FAA employees, temporary, part-time or permanent appointed
or hired in accordance with the other applicable portions of the FAA
Personnel Management System.

![](media/image1.wmf){width="0.5in"
height="0.2700787401574803in"}3.8.2.2\
Policy

The FAA shall generally rely on the private sector for commercial
services (see OMB Circular No. A-76, Policies for Acquiring Commercial
or Industrial Products and Services Needed by the Government). In no
event may a contract be awarded for the performance of an inherently
governmental function. Advisory and assistance contracts shall comply
with all applicable laws concerning post-employment and other conflict
of interest and ethics laws and policies.

3.8.2.3\
Personal Services Contracts

3.8.2.3.1\
***Reserved*** ~(Revised\ 07/2002)~

3.8.2.3.2\
Determination

The FAA may award personal services contracts when the head of a line of
business determines that a personal service contract is in the best
interest of the agency after thorough evaluation which includes, but is
not limited to the following factors:

worker's compensation payments and other tax implications;

the Government's potential liability for services performed;

the availability of temporary hires to perform the desired services;

demonstration of tangible benefits to the agency;

a detailed cost comparison demonstrating a financial advantage to the
Government from such contract;

potential post-employment restrictions applicable to former employees;

a legal determination that the work to be performed is not inherently
governmental; and

potential post employment restrictions pursuant to Federal Workforce
Restructuring Act of 1994 Public Law 103-226.

Although personal service contracts are permitted, they should be used
only when there is a clear demonstrated financial and program benefit to
the FAA. The determination required herein is non-delegable and shall be
reviewed for legal sufficiency by the Office of the Chief Counsel.

3.8.2.3.3\
Buyout Employees

The Federal Workforce Restructuring Act of 1994, Public Law 103-226
conditions the employment of former Government employees who received a
voluntary separation incentive (buyout) payment. If these former
employees perform under a personal services contract in support of (or
are employed directly by) the Government within 5 years after the date
of separation from Government employment they must repay the entire
amount of the buyout. In addition, for all contract actions intended to
obtain services previously provided by an FAA employee who took the
buyout, Public Law 103-226 requires the FAA to conduct a cost comparison
similar to those described in OMB Circular A-76 to demonstrate that such
a contract results in a financial advantage to the Government, prior to
contracting for these services.

In all contract actions which involve support services and a buyout
employee the requiring office shall provide a written determination for
concurrence of the head of the line of busi­ness for the requiring
office. The head of the line of business must concur in the
determi­nation prior to the start of contract performance by the former
employee. The written determination shall identify the former employee,
provide a detailed statement of work to be performed by the former
employee, a cost comparison as may be required, and a certifica­tion that
the proposed employment meets all criteria under Public Law 103-226,
specifically that the former employee will not be engaged in personal
services under the contract.

The determination required herein is non-delegable and shall be reviewed
for legal sufficiency by the Office of the Chief Counsel.

3.8.2.3.4\
SIR and Contract Clauses

Each SIR and contract shall contain appropriate clauses requiring
contractors to identify all Federal Government employees who received
buyouts pursuant to Public Law 103-226 and who will be performing
support services under the contract.

3.8.2.4\
Performance Based Service Contracts

Service contracts should incorporate performance based contracting
methods to encourage contractor innovation and efficiency, and to help
ensure contractors provide timely, cost-effective, and quality
performance.

![](media/image1.wmf){width="0.42913385826771655in"
height="0.2980314960629921in"}3.8.3\
Federal Supply Schedule Contracts

3.8.3.1\
Applicability

This section is applicable when FAA awards Federal Supply Schedule
delivery orders for recurring products and services. Additionally, this
section addresses requirements to utilize Federal Supply Schedules
awarded by GSA, when the FAA is identified in the schedule as a
mandatory/non-mandatory user of any supply/service on the schedule.

3.8.3.2\
Policy ~(Revised\ 07/2002)~

The FAA may consider awarding Federal Supply Schedule contracts, or
placing orders against Federal Supply Schedules awarded by GSA, for
recurring products and services when it is determined to be in the best
interest of the FAA.

3.8.4\
Required Sources of Products/Services and Use of Government Sources

3.8.4.1\
Applicability

The policy and guidance are applicable to acquisition for all products
or services except for real property, utilities, and construction. The
policy and guidance also covers contractor use of Government supply
sources.

3.8.4.2\
Policy

The FAA's goal is to obtain products and services from firms that offer
the best value to satisfy the mission need. To the extent they offer the
best value, COs may use available Government supply sources. The FAA
will continue to acquire products and services through the
Randolph-Sheppard Vending Facilities Program (20 U.S.C. 107),
Javitts-Wagner-O'Day (41 U.S.C. 46), and the Federal Prison Industries,
Inc. (18 U.S.C. 4121).

The COs may allow contractors to use Government sources for products or
services under cost-reimbursement contracts if it is determined to be in
the FAA's interest and the products are available. Contractors with
fixed-price FAA contracts that require protection of classified
information may acquire security equipment through GSA sources after
contracting officer approval.