Last revised (Transmittal 14-014) December 18, 2019

Guide to Judiciary Policy

Vol. 14: Procurement

Ch. 5: Special Categories of Procurements

§ 510 Personal Services Contracts

§ 510.20 General Prohibition

§ 510.30 Judiciary’s Statutory Authority

§ 510.40 Personal Services Indicators

§ 510.50 Clause

§ 520 Expert and Consultant Nonpersonal Services Contracts

§ 520.10 Authority

§ 520.20 Competition and Advertising Exceptions

§ 520.25 Contract and Procurement File Requirements

§ 520.30 Statutory Qualification

§ 520.40 Applicability

§ 520.45 Restrictions

§ 520.50 Award and Administration Requirements

§ 520.55 Services Exceeding One Year

§ 520.60 Former Government Employees

§ 520.65 Travel Reimbursement

§ 520.70 Professional Licenses

§ 520.75 Provisions and Clauses

§ 520.80 Contract Type

§ 520.85 Experts or Consultants Supporting Judicial Conference Committees

§ 530 Architect-Engineer Contracts

§ 530.10 Architect-Engineer Services

§ 530.20 Architect-Engineer Evaluation Board

§ 530.30 Architect-Engineer Evaluation Board Functions

§ 530.40 Architect-Engineer Selection

§ 530.50 Short Selection Process for Small Purchases

§ 530.60 Cost Estimate for Architect-Engineer Contracts

§ 530.70 Negotiations of Architect-Engineer Contracts

§ 540 Commercial Agreements

§ 540.10 In General

§ 540.20 Negotiating Commercial Agreement Terms and Conditions

§ 540.30 Procedures

§ 550 Interagency Agreements, MOAs, and MOUs

§ 550.10 In General

§ 550.20 Types of IAs

§ 550.40 IA Requirements
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 2

§ 550.45 IA Management

§ 550.50 Payment of IAs

§ 550.55 MOAs and MOUs

§ 510 Personal Services Contracts

§ 510.10 [Reserved]

§ 510.20 General Prohibition

(a) Personal service contracts are strictly prohibited without specific statutory

authority. Unless a statutory exception applies, the judiciary is required to 

obtain employees by direct hire under competitive appointment or other 

personnel procedures.

(b) Brief or intermittent services furnished by private-sector temporary help 

firms may not be regarded or treated as personal services. These 

services may not be used instead of regular recruitment under civil service 

laws or to displace a federal employee. For further guidance and 

restrictions on the use of temporary help support services, see: Guide, 

Vol. 12, § 560 (Temporary Help Service Firms).

§ 510.30 Judiciary’s Statutory Authority

(a) The judiciary’s only statutory authority to contract for personal services is 

28 U.S.C. § 612(a), which authorizes the AO Director to contract for 

personal services for the effective management, coordination, operation, 

and use of information technology equipment, purchased by the Judiciary 

Information Technology fund (JITF). Contracts issued under this authority

are subject to the judiciary competition requirements but exempt from the 

advertising requirement of 41 U.S.C. § 6101. See: Guide, Vol. 14, 

§ 130.20.15 (Advertising Requirements).

(b) Under 28 U.S.C. § 602(c), the AO Director is statutorily authorized to 

obtain the personal services of experts or consultants as authorized by 

5 U.S.C. § 3109 at rates not to exceed the highest rate of pay established 

under 5 U.S.C. § 5332. Obtaining personal services of experts or 

consultants under this authority, however, must be through a personnel 

appointment rather than through an independent contract and is outside 

the scope of this volume of the Guide. For guidance on obtaining expert 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 3

or consultant services through award of a contract, see: § 520 (Expert 

and Consultant Nonpersonal Services Contracts).

(c) Only the Procurement Executive (PE) has been delegated the authority to 

contract for personal services. See: Guide, Vol. 14, § 120.20.10 (Director 

Delegations).

§ 510.40 Personal Services Indicators

(a) The personal services determination is largely based on the degree of 

government supervision over the individual’s work. The fact that the 

individual may work independently does not in itself satisfy the 

independent contractor test. The essence of the test is whether judiciary 

employees, on a close and continuous basis, control what is done and 

how the individual performs the work.

(b) There is no “acid test” that determines that personal services exist. 

Instead, this is necessarily a subjective judgment that the CO makes 

based on the individual circumstances. If there is a reasonable question 

as to whether a specific contract involves the performance of personal 

services, the CO should provide file documentation on the analysis 

performed to reach a determination.

(c) The following questions are useful indicators in determining whether a 

service contract is an improper personal services contract, either in how 

the contract is written or in how it is administered on a day-to-day basis. A 

“yes” answer to any of the following questions may indicate that the 

proposed procurement is “personal” in nature. The existence of any of 

these elements may indicate the likelihood that supervision exists. 

However, the existence of any one indicator alone does not necessarily 

require the CO to conclude that the services are “personal.”

• Will the individual(s) require frequent direction and supervision?

• Will the services be performed on the judiciary site?

• Will the principal tools and equipment necessary for performance of 

the services be provided by the judiciary?

• Will the services be applied directly to the integral effort of the judicial 

organization, and are they in direct furtherance of its assigned function 

or mission?

• Will comparable services, meeting comparable needs, be performed 

elsewhere in the judiciary using judiciary employees?
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 4

• Will the need for the type of provided services be reasonably expected 

to last beyond one year?

• Will the inherent nature of the service, or how it is provided, reasonably 

require direct or indirect judiciary supervision of contractor employees 

to adequately protect the judiciary’s interest, retain control of the 

function involved, or retain full personal responsibility for the function 

supported in a duly authorized judiciary officer or employee?

§ 510.50 Clause

Include Clause 5-1, Payments under Personal and Professional Services Contracts in 

solicitations and contracts for personal services permitted under § 510.30(a) (Judiciary’s 

Statutory Authority).

§ 520 Expert and Consultant Nonpersonal Services Contracts

§ 520.10 Authority

The judiciary is authorized to contract for expert and consultant services on a 

nonpersonal services basis under 5 U.S.C. § 3109. For the definition of expert or

consultant, see: Guide, Vol. 14, Glossary of Procurement Terms.

§ 520.15 [Reserved]

§ 520.20 Competition and Advertising Exceptions

(a) These services do not need to be competed or advertised. When 

contracting for the services of a consultant or expert under 5 U.S.C. 

§ 3109, the CO does not need to prepare a sole source justification, since 

there is no competition requirement. However, the file documentation 

must reflect that these services are acquired under the authority of 

5 U.S.C. § 3109, so that anyone reviewing the contract file will understand 

why the requirement was not competed or advertised.

(b) Expert or consultant contracts may not be used as a “pass through” for 

services of individuals other than the named expert, or to acquire goods or 

services that would otherwise be subject to the judiciary’s competition 

requirements.

§ 520.25 Contract and Procurement File Requirements

A purchase, delivery, or task order may not be used for expert and consultant services. 

A formal written contract must be used. The contract must contain all the requisite 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 5

terms and conditions of a formal government contract. The procurement file must 

document the price or cost analysis performed, indicating that the compensation is fair 

and reasonable. This may require an informal market survey (see: Guide, Vol. 14, 

§ 210.60 (Market Research)) or other objective facts, which demonstrate the price’s 

reasonableness (see: Guide, Vol. 14, § 470.20 (Determining Reasonableness)).

§ 520.30 Statutory Qualification

Before contracting for the services of an individual or business entity as an expert or 

consultant, the CO must determine that the individual or business entity qualifies as an 

“expert” or “consultant” under 5 U.S.C. § 3109, and must document this determination in 

the file.

§ 520.40 Applicability

Advice to the government from experts or consultants must include the alternatives 

considered and the rationale for the chosen recommendations. The recommendations 

may include suggestions for a decision or course of action, but judiciary personnel make 

the ultimate decision. Procuring expert and consulting services is appropriate for 

purposes such as obtaining:

(a) specialized opinions, professional or technical advice not available within 

the judiciary or from another federal agency;

(b) outside viewpoints, to avoid too limited a judgment on critical 

administrative or technical issues;

(c) advice on developments in industry;

(d) the opinions of experts whose national or international prestige can 

contribute to the success of an important project; or

(e) specialized skills that are not needed continuously.

§ 520.45 Restrictions

(a) The services of consultants or experts under 5 U.S.C. § 3109 may be 

obtained by contract only if:

(1) the work is temporary or intermittent, defined as follows:

(A) Temporary

Continuous performance (i.e., full time) over a period not 

exceeding one year. Because of the period limitation, it is 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 6

not appropriate to include options to extend the period of 

performance beyond one year in contracts for temporary 

expert or consultant services. This authority may not be 

used to procure the services of experts or consultants under 

a succession of short-term contracts where the resulting 

continuous performance would exceed one year.

(B) Intermittent

Occasional or irregular work on cases, programs, projects, 

and problems requiring intermittent services as distinguished 

from continuous. A contract for intermittent services may not 

exceed 130 days of work within a 12-month period but may 

be renewed from year to year.

(2) the position does not involve policy, management of judiciary staff 

or projects, or the operating duties of judiciary employees; and

(3) the individual or business entity possesses the necessary skills and 

expertise to qualify as an expert or consultant.

(b) A CO may not contract for expert or consulting services to bypass, 

circumvent, or undermine personnel ceilings, pay limitations, or 

competitive employment procedures.

(c) A contract for expert or consulting services may not establish by its terms 

or by how it is administered:

(1) an employer-employee relationship between the judiciary and the 

contractor, including detailed control or supervision by judiciary 

personnel of the contractor or its employees with respect to the 

day-to-day operations of the contractor or the methods of 

accomplishment of the services; or

(2) supervision of judiciary employees, or of employees of other 

contractors, by the contractor.

§ 520.50 Award and Administration Requirements

Before processing any award or solicitation for expert or consulting services, the CO 

must ensure that the applicable provisions of this chapter have been complied with and 

that the following required documentation is complete and included in the contract file:

(a) each requirement is appropriate and fully justified in writing;
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 7

(Note: The justification must include a statement of need and the 

requesting official must certify that the services do not unnecessarily 

duplicate any previously performed work or services.)

(b) each work statement is specific and complete, and states a fixed period of 

performance within which the services are to be provided; and

(c) appropriate disclosure is required of, and warning is given to, contractor 

personnel to avoid conflicts of interest.

After the award of a contract for expert or consultant services, the CO must ensure that 

the contract is properly administered and monitored to ensure that performance meets 

the requirements of the contract.

§ 520.55 Services Exceeding One Year

Contracts for intermittent expert or consultant services may include options to extend 

the period of performance for additional years. See: Guide, Vol. 14, § 220.40 

(Options). However, since temporary services, by definition, are not to exceed one 

year, a contract for temporary expert or consulting services may not include an option to 

extend the period of performance beyond one year and may not be extended by 

modification. When additional services are required, a new contract must be awarded 

subject to the requirements and limitations of this section (i.e., § 520 (Expert and 

Consultant Nonpersonal Services Contracts)).

§ 520.60 Former Government Employees

(a) There is no per se prohibition on awarding an expert or consultant contract 

to a former government employee, and it can, in fact, be appropriate, 

depending upon the circumstances. The individual must meet the 

definition of an “expert” or “consultant.” However, the definition prohibits 

procuring services that are to be performed by full-time government 

employees. Simply because the individual has expertise in a particular 

matter, which they obtained because of their work on that matter as a 

government employee, does not mean that they automatically meet the 

definition of an “expert” or “consultant” under 5 U.S.C. § 3109.

(b) An abuse of this situation would be procuring the services of former 

government employees to perform the operating duties of the government 

workforce or to continue with work the individual was involved in as a 

regular government employee. Then, the requesting office could consider 

other alternatives instead of contracting with the individual, such as reemployment on a full-time, temporary, or intermittent basis as appropriate.
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 8

(c) Although former government employees may satisfy the 5 U.S.C. § 3109

criteria as an “expert” or “consultant,” the CO must guard against 

contracting with such individuals when it will result in a personal services 

contract (i.e., an employer-employee relationship). See: § 510.30(b) 

(Judiciary's Statutory Authority).

§ 520.65 Travel Reimbursement

Any travel required for contract performance that cannot be defined at the time of award 

must be approved in advance by the contracting officer’s representative (COR), and the 

contract must incorporate Clause 7-45, Travel, limiting reimbursement to that allowed 

under the judiciary staff travel regulations. For guidance on contractor eligibility for 

government travel discounts, see: Guide, Vol. 19, § 410.20(c) (Applicability).

§ 520.70 Professional Licenses

When obtaining expert or consulting services for which individuals are normally required 

to be professionally licensed (e.g., medical, legal, accounting, architecture), the 

solicitation must require proof of the license as a prerequisite to award (e.g., copy of the 

membership card issued by the bar association showing that membership is current for 

an attorney, or similar credentials for other professionals). The solicitation may also 

require the individual to be licensed in a particular state or by a particular entity.

§ 520.75 Provisions and Clauses

Include the following clauses, in addition to those listed in Guide, Vol. 14, § 330.10.30 

(Provisions and Clauses), unless otherwise indicated:

§ 520.75 Provisions and Clauses

Clause or Provision Include in:

(a) Clause 1-5, Conflict of 

Interest

All solicitations and contracts for experts and consultant 

services.

(b) Clause 2-65, Key Personnel Solicitations and contracts for professional services when 

the contractor is a corporate entity rather than an individual 

(e.g., awards to law firms). Professional services are those 

provided by an individual whose position requires a license 

or certification (e.g., attorney, certified public accountant). 

The clause requires use of the key personnel identified in 

the contractor's offer, unless the CO approves substitution. 

It provides for contract termination for failure to comply. 

The CO will appropriately fill in the clause’s blank spaces.
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§ 520.75 Provisions and Clauses

Clause or Provision Include in:

(c) Clause 5-1, Payments under 

Personal and Professional 

Services Contract

All solicitations and contracts for personal services as well 

as expert and consultant services.

(d) Clause 5-5, Nondisclosure 

(Professional Services)

All solicitations and contracts for experts and consultant 

services.

(e) Clause 5-10, Inspection of 

Professional Services

All solicitations and contracts for experts and consultant 

services. Provides for inspection of the professional's work 

product and acceptance of only those products that meet 

reasonable professional standards.

(f) Clause 7-125, Invoices, 

Alternate I

All non-fixed-price contracts for professional services. The 

clause requires presentation of invoices showing:

• who performed the services;

• the hours and partial hours of service provided each 

day; and

• the services provided each hour or partial hour.

(Note: Contractors may be allowed to set minimum 

charges for partial hours or days.)

(g) Clause 5-20, Records 

Ownership

Solicitations and contracts when judiciary ownership of all 

contractor work papers relating to the services provided is 

desired.

(h) Provision 5-25, Identification 

of Uncompensated 

Overtime

All solicitations valued above the judiciary’s small purchase 

threshold (see: Guide, Vol. 14, § 325.10 (Applicability)) for 

professional or technical services to be acquired on a:

• labor-hour,

• time and materials, or

• cost-reimbursement basis.

(i) Clause 6-65, Rights in Data 

– Special Works

Solicitations and contracts for professional services when 

the CO determines that there is a need to limit distribution 

and use of the data to be produced under the contract. See

also: Guide, Vol. 14, § 650.55.20 (License Terms).

(j) Clause 6-35, Errors and 

Omissions

Solicitations and contracts when errors and omissions 

insurance is required. See: Guide, Vol. 14, § 630.40 

(Errors and Omissions Insurance).
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 10

§ 520.80 Contract Type

Firm-fixed-price contracts are preferred. When a firm-fixed-price contract is not 

suitable, the CO must first document the reasons. A labor-hour contract may be used,

subject to the limitations in Guide, Vol. 14, § 410.40.30 (Limitations). For further 

guidance on this contract type, see: Guide, Vol. 14, § 410.40 (Labor-Hour Contracts).

§ 520.85 Experts or Consultants Supporting Judicial Conference 

Committees

The use of reporters or consultants to directly support committees of the Judicial 

Conference of the United States (JCUS) requires prior approval. (Note: In this context, 

a "reporter" is a consultant who provides expert or specialized research, analytical, and 

drafting support directly for a JCUS committee.)

(a) Any contract for expert or consulting services for a JCUS committee for a 

discrete, short-term project or activity must have prior approval from the 

AO Director and be issued by the Procurement Management Division

(PMD) of the AO’s Finance and Procurement Office. The COR appointed 

to oversee the work must be a member of the AO staff.

(b) Any contract with a reporter or other consultant who may be expected to 

support a JCUS committee for a longer term or indefinitely must be 

approved through the AO Director by the Chief Justice, who makes all 

appointments to these positions.

§ 530 Architect-Engineer Contracts

§ 530.10 Architect-Engineer Services

§ 530.10.10 Delegation

Authority to award Architect-Engineer contracts under this section is delegated only to 

COCP Levels 5, 6, and 7. If the CO holds a COCP Level 2 delegation for a specific 

building location for which there is a GSA Real Property Operations and Maintenance 

Delegation (GSA Building Delegation), the CO must follow the Federal Acquisition 

Regulation instead of this volume of the Guide. See: Guide, Vol. 14, Appx. 1E 

(Contracting Officers Certification Program (Level 2: Special Delegated Procurement 

Programs)) and § 120.40.55 (GSA Building Delegations).

§ 530.10.20 In General

The following are considered architect-engineer services for the purpose of this section:
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 11

(a) Professional services of an architectural or engineering nature, as defined 

by applicable state law, which the state law requires to be performed or 

approved in writing by a registered architect or engineer.

(b) Professional services of an architectural or engineering nature associated 

with design or construction of real property.

(c) Other professional services of an architectural or engineering nature or 

services incidental thereto that logically or justifiably require performance 

by registered architects or engineers or their employees, including:

• studies,

• investigations,

• tests,

• evaluations,

• consultations,

• comprehensive planning,

• program management,

• conceptual designs,

• plans and specifications,

• value engineering,

• construction phase services,

• soils engineering,

• drawing reviews,

• preparation of operating and maintenance manuals, and

• other related services;

(d) Professional surveying and mapping services of an architectural or 

engineering nature.

(1) Surveying

Must be procured from registered surveyors or architects and 

engineers.

(2) Mapping

(A) Mapping is considered an architectural and engineering 

service if it is associated with the research, planning, 

development, design, construction, or alteration of real 

property.

(B) Mapping services may not be procured under this section if 

they:
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 12

(i) are not connected to traditionally understood or 

accepted architectural and engineering activities;

(ii) are not incidental to such architectural and 

engineering activities, or

(iii) have not themselves traditionally been considered 

architectural and engineering services.

§ 530.10.30 Source Selection

The award of contracts for architect-engineer services is subject to the requirements of 

the Brooks Act. See: Guide, Vol. 14, § 130.20.50 (Procurement of Certain Professional 

Services). The procedures in this chapter must be followed when contracting for these 

services rather than solicitation or source selection procedures prescribed elsewhere in 

this volume. The selection authority for architect-engineer services must be designated 

by the PE, and may also be, but is not required to be, the CO.

§ 530.10.40 Publicizing and Response

(a) The judiciary must publicly announce all requirements for contracts of 

architect-engineer services and negotiate contracts for these services 

based on the demonstrated competence and qualifications of prospective 

contractors to perform the services at fair and reasonable prices. The 

announcement must state that all architect-engineer firms wishing to be 

considered must submit their qualifications using Form SF 330 (ArchitectEngineer Qualifications). For further guidance on methods of publicizing 

procurements, see: Guide, Vol. 14, § 315 (Publicizing Open Market 

Procurement Actions).

(b) The architect-engineer evaluation board and selection authority must 

evaluate each potential contractor based on the following criteria:

(1) professional qualifications necessary for satisfactory performance 

of the required services;

(2) specialized experience and technical competence in the type of 

work required;

(3) capacity to accomplish the work in the required time;

(4) past performance on contracts with the judiciary, other 

governmental entities, and/or private industry concerning:

• cost control,

• quality of work, and
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 13

• compliance with performance schedules;

(5) acceptability under other appropriate evaluation criteria.

§ 530.20 Architect-Engineer Evaluation Board

§ 530.20.10 Composition of Board

When procuring architect-engineer services, the Procurement Liaison Officer (PLO) or 

equivalent in the judiciary organization or the PE, must establish an architect-engineer 

evaluation board, composed of at least three members. One member of the board must 

be designated as the chairperson. All three members must be individuals who are 

highly qualified professionals who, collectively, have experience in architecture, 

engineering, construction, and related matters. Board members are not required to be 

judiciary employees and may be outside consultants. For further guidance on outside 

consultants serving as evaluators, see: Guide, Vol. 14, § 210.70.40 (Evaluation 

Panels).

§ 530.20.20 Evaluation Board Exclusions

Neither the CO nor anyone delegated to conduct architect-engineer contract 

negotiations for a given project may be a member of that project’s evaluation board.

§ 530.20.30 Conflict of Interest Exclusion

No firm can be eligible for award of an architect-engineer contract during the period in 

which any of its principals or associates are participating as members of the awarding 

evaluation board.

§ 530.30 Architect-Engineer Evaluation Board Functions

The evaluation board must perform the following functions under the general direction of 

the PE (or delegatee if a one-time delegation has been made):

(a) review the firms’ qualification statements furnished in response to any 

notice publicizing the contemplated project, as well as any information 

available within the judiciary’s current data existing files on eligible firms;

(b) evaluate the firms according to the criteria in § 530.10.40(b) (Publicizing 

and Response);

(c) hold discussions with at least three of the most highly qualified firms about 

concepts and the relative utility of alternative methods of furnishing the 

required services;
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(d) prepare for the selection authority a report recommending, in order of 

preference, at least three firms that are evaluated to be the most highly 

qualified to perform the required services.

(Note: The selection report must include a description of the board’s 

discussions and evaluation. This report will allow the selection authority to 

review the considerations upon which the recommendations are based.)

§ 530.40 Architect-Engineer Selection

§ 530.40.10 In General

The selection authority must:

(a) review the recommendations of the evaluation board, and

(b) with the advice of appropriate technical and staff representatives, approve 

the final selection report.

§ 530.40.20 List of Most Highly Qualified Firms

The final selection report must be a listing, in order of preference, of the firms 

considered most highly qualified to perform the work.

§ 530.40.30 File Documentation

If the firm listed as the most preferred is not recommended as the most highly qualified 

by the evaluation board, the contract file must include a written explanation of the 

reason for the preference. All firms on the final selection report list must be considered 

“selected firms” with which the CO may negotiate.

§ 530.40.40 Revisions to the Report

The selection authority may not add firms to the selection report. If the firms 

recommended in the report are not deemed to be qualified, or the report is considered 

inadequate for any reason, the selection authority must record the reasons and return 

the report to the evaluation board for appropriate revision.

§ 530.50 Short Selection Process for Small Purchases

§ 530.50.10 Conditions to Use the Short Process

When authorized by the delegated CO (see: § 530.10.10 (Delegation)), the process 

below in § 530.50.20 (Short Process) may be used as an alternative to those identified 

in § 530.30 (Architect-Engineer Evaluation Board Functions) and § 530.40 (Architect-
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 15

Engineer Selection) to select firms for contracts not estimated to exceed the judiciary’s 

small purchase threshold (see: Guide, Vol. 14, § 325.10 (Applicability)).

§ 530.50.20 Short Process

When the CO decides that formal action by the board is not necessary in connection 

with a particular selection, the following procedures must be used:

(a) The chairperson of the board must perform the functions of the board 

provided in § 530.30 (Architect-Engineer Evaluation Board Functions).

(b) The CO must review the report and approve it or return it to the 

chairperson for appropriate revision.

(c) Upon receipt of a written report approved and signed by the board’s 

chairperson, the CO is authorized to begin negotiations.

§ 530.60 Cost Estimate for Architect-Engineer Contracts

Before the CO can negotiate any proposed contract or begin a contract modification 

requiring funding, an independent cost estimate for the required Architect-Engineer 

services must be developed based on a detailed analysis of the costs expected to be 

generated by the work. The estimate must be prepared by the requiring organization 

and be sent to the CO with the request for services. Access to information concerning 

the cost estimate must be limited to judiciary personnel and agents whose official duties 

require knowledge of the estimate.

§ 530.70 Negotiations of Architect-Engineer Contracts

§ 530.70.10 Initiation of Negotiations

(a) The CO must first attempt to negotiate a contract with the first firm on the 

selection report list (see: § 530.40 (Architect-Engineer Selection)) for the 

required services at a price that the CO determines in writing to be fair and 

reasonable. Negotiations must be conducted according to Guide, Vol. 14, 

§ 345 (Price Negotiations).

(b) The CO must request an offer from the firm, ensuring that the solicitation 

does not inadvertently preclude the firm from proposing the use of modern 

design methods.

(c) The CO must:

(1) ensure that the firm has a clear understanding of the scope of work, 

specifically the essential requirements involved in providing the 

required services, and determine whether the firm will make 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 16

available the necessary personnel and facilities to perform the 

services within the required time; and

(2) limit the firm’s subcontracting to firms agreed upon during 

negotiations or through a formal contract modification.

§ 530.70.20 Termination of Negotiations

If a mutually satisfactory contract cannot be negotiated, the CO must notify the firm that 

negotiations are terminated. The CO must then begin negotiations with the next 

qualified firm rated on the list. This procedure must continue until a mutually 

satisfactory contract has been negotiated.

§ 530.70.30 Requesting Additional Firms

If unable to negotiate a satisfactory contract with any of the selected firms, the CO must 

request a listing of additional firms from the evaluation board and continue negotiations 

according to this section until an agreement is reached.

§ 530.70.40 Notification of the Final Selection

The CO must promptly inform the evaluation board of the final selection once a mutually 

satisfactory contract has been negotiated.

§ 530.70.50 Contract Type

Architect-engineer contracts are normally firm-fixed-price. If an indefinite-delivery 

contract is used, the task orders are normally firm-fixed-price.

§ 530.70.60 Clauses

The following clauses are inserted in solicitations and contracts for architect/engineer 

services as indicated:

§ 530.70.60 Clauses

Clause Include in:

(a) Clause 5-30, Authorization and 

Consent

All architect-engineer solicitations and contracts.

(b) Clause 5-35, Payments under FixedPrice Architect-Engineer ContractsFixed price architect-engineer solicitations and 

contracts.

(c) Clause 5-45, Design Within Funding 

Limitations

Solicitations and contracts when the project must 

be designed so that construction costs do not 

exceed a contractually specified dollar limit 

(funding limitation).
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 17

§ 530.70.60 Clauses

Clause Include in:

(d) Clause 5-50, Responsibility of the 

Architect-Engineer Contractor

Fixed price architect-engineer solicitations and 

contracts.

(e) Clause 5-55, Work Oversight in 

Architect-Engineer Contracts

All architect-engineer solicitations and contracts.

(f) Clause 5-60, Requirements for 

Registration of Designers

All architect-engineer solicitations and contracts.

(g) Clause 5-65, Subcontractors and 

Outside Associates and Consultants 

(Architect-Engineer Services)

All architect-engineer solicitations and contracts.

(h) Clause 5-70, Termination (Fixed-Price 

Architect-Engineer)

Fixed price architect-engineer solicitations and 

contracts.

(i) Clause 5-75, Suspensions and Delays All architect-engineer solicitations and contracts.

§ 540 Commercial Agreements

§ 540.10 In General

Commercial agreements, license agreements (including software licenses), and special 

use agreements are often requested by contractors as conditions to entering into 

contracts with the judiciary for the purchase of products, services, and commercial 

meeting or conference facilities. These agreements are usually written for commercial 

entities rather than federal agencies and contain terms and conditions that must be 

modified or removed.

§ 540.20 Negotiating Commercial Agreement Terms and Conditions

In general, COs should not sign commercial agreements. Instead, the CO should issue 

a judiciary contract containing the appropriate judiciary terms and conditions. If this is 

not possible, then the following steps must be taken before the CO signs the 

commercial agreement:

(a) Prohibited Terms and Conditions

The CO will review the commercial agreement and negotiate with a 

representative from the company to delete any of the following terms and 

conditions if they are proposed as part of the commercial agreement:
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 18

§ 540.20(a) Prohibited Terms and Conditions

Term or Condition Deletion Mandatory

(1) Credit Application/Master 

Account

Credit provisions are not applicable to the judiciary.

(2) Attorney Fees Any clause regarding payment of attorney fees.

(3) Automatic Renewals of 

Agreements

Provisions that automatically renew the commercial 

agreement from year-to-year. 

(4) Payments in Advance Unless the agreement is authorized for advance payment 

under Guide, Vol. 14, § 220.55 (Contract Financing).

(5) Insurance The judiciary is self-insured.

(6) Damage Deposits Any damage deposit. For Indemnification and/or Hold 

Harmless terms, see: paragraph (8) below.

(7) Arbitration Clause Any clause agreeing to arbitration.

(8) Indemnification or Hold 

Harmless

Delete any commercial term or provision stating that the 

judiciary will indemnify the contractor, and replace with the 

following: “Notwithstanding any other term or provision of 

this agreement, the judiciary’s liability related to any claim for 

personal injury, death, property loss, or damage under this 

agreement, is limited by and subject to the procedures and 

terms of the Federal Tort Claims Act, the Antideficiency Act,

and all other applicable federal laws and regulations.”

(9) Clause making State Court 

Jurisdiction or State Law 

applicable

Replace with “Federal law applies.” See: Boyle v. United 

Technologies Corp., 487 U.S. 500, 504 (1988) (noting 

“obligations to and rights of the United States under its 

contracts are governed exclusively by federal law.”)

(b) Terms or Conditions Recommended for Deletion or Modification

In addition, it is strongly recommended as being in the best interests of the 

judiciary that the CO attempt to delete or modify the following commonly 

used commercial agreement terms or conditions:

§ 540.20(b) Terms and Conditions Recommended for Deletion or Modification 

Term or Condition Recommended Action

(1) Interest Any interest charges should be negotiated out because the government 

is not liable for interest in the absence of express provisions in statutes 

or a lawful contract. If the requirement to pay interest remains in the 

agreement, then sufficient funds must be available to pay any such 

interest charges to avoid violation of the Antideficiency Act, 31 U.S.C 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 19

§ 540.20(b) Terms and Conditions Recommended for Deletion or Modification 

Term or Condition Recommended Action

§ 1341(a)(1), and the agreement should stipulate that the interest rate 

may not exceed that allowed under the Prompt Payment Act.

(2) Subject to 

Change Without 

Notice

Any language that indicates that the terms of the agreement are subject 

to change by the vendor without notice to the judiciary should be 

negotiated out.

(3) Taxes Generally, the judiciary is immune from paying taxes imposed by state 

and local governments. However, for further guidance on taxes on 

telecommunications services, see: Guide, Vol. 15, § 555 (Taxes and 

Fees for Communication Services and Computers).

(4) Cancellation Any schedule or fixed rate of liquidated damages or fees associated with 

the cancellation or reduction of the service should be negotiated out. 

Regarding cancellation charges on multi-year contracts, see: Guide, 

Vol. 14, § 410.75 (Multi-Year Contracts). Note: For cancellation terms 

in agreements with hotels or other conference or meeting facilities, see: 

paragraph (5)(E) (Cancellation), below.

(5) Provisions Specific to Commercial Meeting or Conference Facilities:

(A) Early 

Departure Fee

Any fees for changing departure dates to an earlier date after check-in 

should be negotiated out.

(B) Food and 

Beverage 

Policy

Restrictions that require all food and beverages consumed at the facility 

to be purchased at the facility should be negotiated out.

(C) Group 

Commitment 

Charges based upon actual number of attendees rather than an 

estimated number should be negotiated out.

(D) Deposit The judiciary can provide a “reasonable” deposit in exchange for the 

hotel or facility to reserve or guarantee a space.

Note: The deposit amount must be obligated on a purchase order prior 

to paying any deposit.

(E) Cancellation If the contractor insists on damages for cancellation of a hotel booking, 

replace any schedule of damages with language similar to the following:

(i) “Cancellation or reduction” refers to either a complete cancellation of 

the room block or a reduction of more than 20% of the original room 

block. No penalty will apply to a cancellation or reduction when the 

judiciary gives written notice of such cancellation or reduction, via 

email, facsimile, or hard copy, at least 60 days prior to the date of 

the event, or if the event is cancelled as a result of catastrophic 

events (e.g., airport closure, major snow storm, hurricane, tornado, 

flood).
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 20

§ 540.20(b) Terms and Conditions Recommended for Deletion or Modification 

Term or Condition Recommended Action

If a cancellation or reduction occurs less than 60 days before the 

date of the event, the contractor agrees to make every effort to 

resell the cancelled room block. If the contractor is unable to resell 

all the cancelled or reduced products or services, the judiciary will

be responsible for such amounts that reflect the actual losses 

sustained by the contractor.

(ii) If the judiciary agrees to reschedule the same event within six 

months from the date of the cancelled event, any cancellation fee 

will be waived.

(iii) If the hotel cancels the booking, without limiting the judiciary’s rights 

and remedies under law or in equity, the hotel must be held 

responsible for excess costs incurred by the judiciary to arrange 

equivalent accommodations for the event.

(c) In addition to the above mandatory and recommended changes to 

proposed commercial terms and conditions, when the contract is being 

awarded in the current fiscal year to be delivered or performed in a future 

fiscal year, the CO must incorporate a statement that the agreement is 

subject to the availability of funds and incorporate Clause 7-115, 

Availability of Funds by reference.

§ 540.30 Procedures

(a) The CO must ensure that either:

(1) a new commercial agreement is generated that incorporates all the 

negotiated changes; or

(2) both parties have initialed all modifications made to the original 

commercial agreement.

(b) If the contractor and the CO cannot agree to the terms, the CO must:

(1) identify and recommend options that may be available to the 

judiciary (Note: Options could include a recommendation that the 

product or service be procured elsewhere.); or

(2) contact PMD for assistance if the provisions at issue are those 

specified in § 540.20(a) (Prohibited Terms and Conditions).
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 21

(c) If the CO is unable to negotiate the provisions in § 540.20(b) (Terms and 

Conditions Recommended for Deletion or Modification) as recommended 

and proceeds with the agreement, then the CO must calculate any 

potential costs that may be incurred to obtain or use the products,

services, commercial meeting, or conference facility under such terms that 

may not be favorable to the judiciary. The cost must be calculated using a 

“worst-case” scenario.

Note: Sufficient funds must be obligated to cover the costs of the worstcase scenario when the purchase order is awarded.

§ 550 Interagency Agreements, MOAs, and MOUs

§ 550.10 In General

(a) Under some circumstances, judiciary units may wish to acquire goods or 

services from or through other federal entities. The AO Director has 

authority to enter into interagency agreements (IAs) for this purpose and 

has delegated this authority as described at Guide, Vol. 14, § 120.20.10(a) 

(Delegation to the Procurement Executive) and § 120.20.10(b) (Delegation 

to Chief Judges and Certain Judiciary Officials). See: 28 U.S.C. 

§ 604(a)(10)(C); 31 U.S.C. § 1535; and Guide, Vol. 14, § 140.30.30(h) 

(Level 3 Delegation).

(b) While MOAs and MOUs are not procurement vehicles (when used by 

themselves), these types of agreements are covered in this section for 

informational purposes. See: § 550.55 (MOAs and MOUs).

(c) This section does not apply to:

• agreements for personnel detail assignments (see: Guide, Vol. 12, 

§ 510.70 (Interagency Agreements and Memoranda of Understanding 

(MOU)));

• the purchase of duplication or printing services (see: Guide, Vol. 23, 

Ch. 2 (Printing)); or

• the placement and administration of Reimbursable Work 

Authorizations (RWAs) (see: Guide, Vol. 16, Ch. 3 (Tenant Alterations 

and Cyclical Facilities Maintenance)).

§ 550.20 Types of IAs

The judiciary may enter into the following types of IAs with other federal agencies:
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 22

(a) IAs under which another federal agency (referred to as the providing 

agency) will perform work for, or provide services to, the judiciary. In 

these IAs, the judiciary is the receiving agency and reimburses the other 

agency for such work.

(1) Under this type of agreement, the other federal agency may either 

perform the work itself or award a contract for the work to be 

performed.

(2) Regardless of how the work is performed, the payment is to the 

providing agency, not to a contractor.

(b) IAs under which the judiciary is authorized to issue a separate task or 

delivery order directly to a providing agency’s contract following the 

procedures in Guide, Vol. 14, § 310.60 (Other Federal Agency Contracts). 

Not all agencies offering direct acquisitions require an IA.

(1) Where IAs are required, funds are obligated on a task or delivery 

order and payment is made directly to the other agency’s 

contractor. The task or delivery order must be issued by an 

employee with at least COCP Level 3 delegated procurement 

authority. See: Guide, Vol. 14, § 140.30.30(h) (Level 3 

Delegation).

(2) An IA is not required to order from the GSA Federal Supply 

Schedule (FSS). See: Guide, Vol. 14, § 310.50 (GSA Federal 

Supply Schedules). Orders placed under GSA schedules must be 

within the CO’s delegation authority.

§ 550.20.10 Restrictions and Requirements

IAs with other federal agencies:

(a) Must comply with the bona fide needs rule (unless obligating no-year 

funds);

(b) May not be used to circumvent conditions or limitations on the use of 

appropriated funds; and

(c) May not be used to make prohibited purchases, whether prohibited by the 

judiciary or by the other agency.

§ 550.20.20 IA Content

(a) An IA must be in writing and should be executed before any services are 

performed or goods are requested. The agreed upon written terms 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 23

establish the scope of the undertaking and the rights and obligations of the

parties. When developing an IA, if the other agency does not provide an 

agreement, the CO must ensure proper information is reported on FMS 

Forms 7600A or 7600B (Note: Open in Firefox or IE) or a similar form. 

Note: Form 7600A/B is meant for use only with an IA, not with an MOU or 

MOA. See: § 550.55.30 (MOA or MOU Content).

(b) An IA must specify at least the following:

(1) a citation of the statute or authority authorizing the IA;

(2) period of duration;

(3) responsibilities of the providing agency and the judiciary;

(4) description of services to be provided or products to be furnished;

(5) the cost of performance, including appropriate ceilings when cost is 

based on estimates;

(6) mode of payment — advance or reimbursement (see: § 550.50 

(Payment of IAs));

(7) any applicable special requirements or procedures for assuring 

compliance (e.g., in appropriate circumstances, it may be 

appropriate to request the providing agency add relevant judiciary 

clauses into a new solicitation or new task or delivery order, if 

issued on the judiciary’s behalf (see: Guide, Vol. 14, Appx. 1C 

(OFAC column)); 

(8) mutual termination provisions;

(9) procedures for the resolution of disagreements that may arise 

under an IA, including resolution by the PE;

(10) approvals and signatures by authorized officials (see: § 550.20.30 

(Approval Requirements)); and

(11) IA point of contact.

§ 550.20.30 Approval Requirements

(a) AO-issued IAs are subject to AO internal approval procedures. The use of 

IAs by other judiciary organizations to obtain products or services from 

another federal agency is subject to approval by the chief judge or other 

judiciary official identified in Guide, Vol. 14, § 120.20.10(b) (Delegation to 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 24

Chief Judges and Certain Judiciary Officials), or the PLO, if appointed as a 

CO, subject to the following limitations:

(1) A CO must be certified at the appropriate COCP level.

(2) The chief judge or other judiciary official identified in Guide, Vol. 14, 

§ 120.20.10(b) (Delegation to Chief Judges and Certain Judiciary 

Officials), or the PLO, may not approve an IA that exceeds their

delegated procurement authority. See: Guide, Vol. 14, 

§ 140.30.30(h) (Level 3 Delegation). If the IA is expected to exceed 

the delegation, see: § 550.20.40 (Exceeding Delegation Authority).

(b) All judiciary IAs must adhere to applicable statutory and/or regulatory 

requirements, including appropriations law. The IA may include yearly 

option periods that, if the CO exercises the option, will require the 

obligation of fiscal year funds available for the option period through the 

execution of a new order with the providing agency. Similar to Guide, 

Vol. 14, § 220.55.60 (Procedures), an IA for severable services could 

cross a fiscal year.

§ 550.20.40 Exceeding Delegation Authority

Proposed IAs that exceed the general delegation authority amount, or for which

authority is specifically not delegated, must be forwarded to PMD for review and 

coordination with other AO offices, such as the AO’s Human Resources Office (HRO) or 

Office of the General Counsel (OGC). As appropriate, PMD will issue a one-time 

delegation of procurement authority.

§ 550.30 [Reserved]

§ 550.40 IA Requirements

§ 550.40.10 Statutory Authority

IAs are authorized under either the Economy Act (31 U.S.C. § 1535) or specific 

statutory authority for the purchase.

(a) The Economy Act applies when a more specific statutory authority does 

not exist.

(1) The Act does not provide authority to enter into IAs with state or 

local agencies to obtain goods or services.

(2) All IAs under the Act must be supported by a Determination and 

Finding (D&F) (see: § 550.40.20 (Economy Act Determination and 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 25

Finding) and Appx. 5A (Economy Act Determination and Finding)), 

which must be maintained in the IA file.

Note: Appx. 5A (Economy Act Determination and Finding)

provides only the initial signature page of the required D&F. It must 

be accompanied by a statement of facts regarding the specific IA 

that supports the D&F.

(b) IAs supported by a more specific statutory authority than the Economy Act

do not require a D&F. Instead, the proposed IA must cite the specific 

statutory authority, and the PE, in coordination with OGC, must review and 

validate the lawful use of the authority other than the Economy Act.

§ 550.40.20 Economy Act Determination and Finding

(a) Before entering into an IA under the Act, the CO must prepare and sign a 

D&F. If the providing agency requires a copy of the judiciary’s D&F, the 

judiciary organization must provide it with the IA. The D&F must 

determine that:

(1) amounts are available to meet the proposed cost;

(2) it is in the judiciary’s best interest to use an IA to obtain products or 

services under the Economy Act (31 U.S.C. § 1535);

(3) the products or services cannot be provided by contract as 

conveniently or cheaply by contracting with a commercial 

enterprise; and

(4) the agency filling the order is able to provide, or get by contract, the 

ordered products and services.

(b) To support the determinations required in paragraph (a) above, the 

judiciary organization must consider the following, and include supporting 

documentation in the D&F and IA file:

(1) Total cost analysis of obtaining the products or services from the 

providing agency;

(2) Factual supporting information describing any pricing advantages in 

using an IA for obtaining products or services;

(3) Consideration of intangibles, such as ease of use, time savings;

(4) Comparison of the expenditure of effort and associated costs with 

placing an order or contract under other procedures; and
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 26

(5) Identification of other restrictions (e.g., length of time during which 

the IA will remain in force and effect; specified procedures imposed 

by the providing agency as a condition of the agreement).

(c) For IAs within the judiciary organization’s delegated procurement authority

(see: Guide, Vol. 14, § 140.30.30(h) (Level 3 Delegation)), excluding the

AO, the D&F must be approved by the chief judge or other judiciary official 

identified in Guide, Vol. 14, § 120.20.10(b) (Delegation to Chief Judges 

and Certain Judiciary Officials) (or PLO, if appointed as a CO).

(d) For IAs above judiciary organization’s delegated procurement authority,

the D&F must be approved by the PE before a one-time delegation of 

procurement authority will be issued.

§ 550.40.30 Economy Act Costs

(a) Payment under the Act — whether in advance, with subsequent 

adjustment, or by reimbursement — must be based on the actual costs of 

products or services provided (including a minimal administrative fee) to 

avoid unauthorized augmentation of an agency’s appropriations. It may 

not include “profit” to the providing agency.

(b) The Government Accountability Office (GAO) has indicated that, as a rare 

exception, agencies may waive the recovery of small amounts of costs 

incurred where processing reimbursement would be uneconomical. The 

judiciary CO must document the IA file when making such a 

determination.

(c) Actual costs include:

(1) all direct costs attributable to:

(A) the performance of a service, or

(B) the furnishing of products; and

(2) only indirect costs that:

(A) are funded out of the providing agency’s currently available 

appropriations, and

(B) bear a significant relationship to the service or work 

performed or materials furnished.
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 27

§ 550.40.40 Transfer of Funds

(a) Federal agencies require that payment be made by transferring funds via 

the Department of Treasury’s Intra-Governmental Payment and Collection 

(IPAC) system.

(b) The purchasing CO must provide the agency location code and other 

required information on FMS Forms 7600A or 7600B (Note: Open in 

Firefox or IE) or a similar form provided by the other federal agency. This 

form will provide the accounting information for both the providing and 

purchasing agencies in addition to other relevant agreement details.

(c) Because IPAC transfers can only be accomplished at the AO, the CO 

must seek assistance from the AO’s Finance and Accounting Division

(FAD) to accomplish the payment. For signature and approval 

requirements, see: § 550.20.30 (Approval Requirements).

§ 550.45 IA Management

IAs require management by the IA point of contact POC and the CO throughout the 

period of performance. Such management should not, however, include “supervising”

the providing agency’s contractor personnel. See: § 510 (Personal Services 

Contracts).

(a) The POC must manage the IA by:

(1) Monitoring performance, reimbursements, and funding;

(2) Notifying the judiciary CO overseeing the IA of any performance 

disputes;

(3) Approving invoices; and

(4) Notifying the judiciary CO in writing when the IA period of 

performance ends.

(b) The judiciary CO must manage the IA by:

(1) Approving any IA changes that will impact the budget (e.g., 

modification, deobligating, billing, advance payment before 

invoicing);

(2) Approving any necessary renewal that is accomplished before the 

expiration date; and
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 28

(3) Resolving any performance disputes that may arise (which may 

need to be coordinated with the providing agency CO in an assisted 

acquisition-type IA). See: § 550.20.20(b)(9) (IA Content).

§ 550.50 Payment of IAs

§ 550.50.10 Advance Versus Reimbursement

Payments to federal agencies may be made in advance or upon receipt of the products 

or services. See: Guide, Vol. 14, § 220.55.30(d) (Delegation).

(a) Advance

If payment is made in advance, then any adjustments based on actual 

costs must be made as agreed to by the providing agency and judiciary. 

Amounts over actual costs must be returned to the judiciary. Bills 

rendered or requests for payment are not subject to audit or certification in 

advance of payment.

(b) Reimbursement

If approved by the providing agency, the judiciary may reimburse the 

providing agency for actual costs after the products or services have been 

furnished.

§ 550.50.20 Recording IA Obligations

(a) In most instances, an IA obligates the judiciary’s appropriations and is 

recorded as an obligation at the time the IA is executed. See: 31 U.S.C. 

§ 1501(a); Guide, Vol. 13, § 280.60.10 (Statutory Authorities Permitting 

Obligations).

(b) For Economy Act IAs, the statute requires that the original amount 

obligated must be reduced (i.e., deobligated) at the end of the fiscal year 

to the extent that the providing agency has not incurred costs or made 

expenditures, before the end of the period of the appropriation’s 

availability, in:

(1) providing products or services; or

(2) making an authorized contract with another person or entity to 

provide the requested products or services.
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 29

§ 550.55 MOAs and MOUs

§ 550.55.10 In General

Memoranda of Agreement or Understanding (MOAs or MOUs) are not procurement 

vehicles when used exclusively by themselves. However, guidance on MOAs or MOUs 

is provided in this subsection to differentiate them from funded procurement vehicles 

(e.g., IAs, contracts, delivery or task orders used to obtain goods or services), as well as

certain other transactions.

§ 550.55.20 Delegation

(a) AO-issued MOAs or MOUs are subject to the AO internal delegation

policy.

(b) Other judiciary organizations do not require a delegation of authority from

the AO Director to use an MOA or MOU, neither of which may obligate

funds.

§ 550.55.30 MOA or MOU Content

(a) All MOAs or MOUs must be consistent with applicable federal laws and 

regulations, judiciary policies, and are subject to approval by the chief 

judge or other judiciary official identified at Guide, Vol. 14, § 120.20.10(b) 

(Delegation to Chief Judges and Certain Judiciary Officials), or the PLO, if 

delegated, subject to described limitations.

(b) An MOA or MOU must be in writing and must specify the following:

(1) Parties

The parties to the agreement.

(2) Purpose

The purpose or reason for entering into the agreement.

(3) Responsibilities

The duties and responsibilities of the parties subject to the 

agreement.

(4) Applicable Special Requirements
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 30

(Note: Similar to contracts, an MOA or MOU may not include any 

provision stating that the judiciary will indemnify other parties. See:

§ 540.20(a)(8) (Prohibited Terms and Conditions).)

(5) Modification

How the MOA or MOU may or may not be modified, whether formal 

(written) or informal (oral), along with who can do the modification 

(i.e., signatories of the original agreement only or points of contact).

(6) Disagreements

Procedures for the resolution of disagreements that may arise 

under the MOA or MOU.

(7) Severability

That nothing in the agreement is intended to conflict with current 

law, regulation, or judiciary policy. If a term of the agreement is 

inconsistent with such authority, then that term will be invalid, but 

the remaining terms and conditions of this agreement will remain in 

full force and effect.

(8) Effective Date of the Agreement

The date the agreement begins. For example, this could be a 

specified date after the MOA or MOU is signed by all parties, or the 

date the last party signs the agreement.

(9) Mutual Termination Provisions

Provisions that indicate whether:

(A) the MOA or MOU will terminate on a certain date, upon the 

accomplishment of its purpose, or upon agreement of the 

parties;

(B) the duration of the agreement may be extended and, if so, 

the extension mechanism (e.g. by written agreement of the 

parties); and

(C) a party may terminate the agreement early and if so, how it 

may be done (e.g., written notice to the other parties).

(10) Points of Contact
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 31

Provide the names and contact information (e.g., mailing and email 

addresses; phone and fax numbers) of the POCs for all parties.

(11) Approval Signature Blocks and Dates

Provide the names and signatures of approving officials for each 

party, along with the date the officials signed the MOA or MOU.

§ 550.55.40 Approval Requirements

(a) AO-issued MOAs/MOUs are subject to the AO internal approval

procedures.

(b) MOAs or MOUs issued by other judiciary organizations must be approved

according to local policy, as determined by the organization concerned.

§ 550.55.50 MOAs or MOUs Involving Gifts to the Judiciary

(a) When an MOA or MOU purports to provide a benefit or service to the 

judiciary by a non-federal entity at no cost, it is presumed to be a gift. 

See: Guide, Vol. 2C, § 620.30 (Solicitation of Gifts by a Judicial Officer or 

Employee). The limitations on accepting “gifts” to the judiciary include:

(1) Only those officers or employees that have been delegated 

authority from the AO Director may accept gifts to the judiciary.

See: Guide, Vol. 16, § 520.10(c) (Donation or Gift).

(2) The AO Director has delegated limited authority to certain judiciary 

officials who may accept voluntary and uncompensated (gratuitous) 

services from “volunteer employees.” See: Guide, Vol. 12, 

§ 550.20(c) (Authority).

(b) When the judiciary needs services or other capabilities to fulfill its missions 

(that can be contracted for), the judiciary organization should contact the 

servicing CO for advance procurement planning. See: Guide, Vol. 14, 

Ch. 2 (Procurement Planning and Preparations).

§ 550.55.60 MOAs or MOUs Versus No-Cost Contracts

If an MOA or MOU with a non-federal entity contains mutual promises and benefits to 

both parties (i.e., consideration, instead of obligating funds), it may constitute a “nocost” contract, versus a gift, depending on the facts.

(a) A judiciary no-cost contract (instead of an MOA or MOU) might be 

appropriate in rare instances, but only a CO can bind the judiciary to such 

contracts. For an example, see: Guide, Vol. 14, § 310.80 (Vendors 
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 32

Offering Services for Public Use); GAO B-410752.3 et seq. (LCPtracker, 

Inc.; eMars, Inc.).

(b) For any proposed no-cost contract:

(1) AO staff are subject to the applicable AO policies and procedures.

(2) Other judiciary organizations should consult with the AO’s PMD, as

such contracts may involve other potential issues to consider (e.g., 

conflicts of interest, augmentation of appropriations). See: GAO 

B-308968 (No-Cost Contracts for Event Planning Services).

§ 550.55.70 MOAs or MOUs Versus Loans of Personal Property (Bailments)

One of the ways the judiciary may temporarily obtain personal property for official use is 

a loan. See: Guide, Vol. 16, § 520.10(d) (Loans from a Public Institution or Private 

Benefactor). A temporary “loan” of such personal property can also be considered a 

“bailment contract.”

(a) A bailment is not a procurement contract. However, to protect the 

judiciary’s interests and make it contractually enforceable, a “bailment 

contract” (not an MOA or MOU) should be established in writing and 

signed by a judiciary CO. See: Telenor Satellite Services, Inc. v. United 

States, 71 Fed. Cl. 114 (2006).

(b) Judiciary organizations should take caution to not improperly solicit nonfederal persons or entities to temporarily bail (i.e., loan) their personal 

property to the judiciary.

(c) Where “bailment contracts” are not expressly delegated and authorized 

elsewhere in judiciary policy, the judiciary organization should consult with 

the AO’s PMD, as such contracts may involve other potential issues to 

consider.

§ 550.55.80 MOAs or MOUs Versus Leases of Real Property (Office Space)

(a) As a general rule, only the General Services Administration (GSA) may 

lease office space necessary for judiciary operations. See: Guide, 

Vol. 14, § 160.40 (Non-Ratifiable Unauthorized Commitments); Vol. 16, 

§§ 110.20 (Authority) and 110.20.40 (General Services Administration). 

For the narrow statutory exception involving space for holding sessions of 

court at no cost, see: Guide, Vol. 16, § 110.20.20(a) (Director of the 

Administrative Office).
Guide to Judiciary Policy, Vol. 14, Ch. 5 Page 33

(b) Branding a real property “lease” as something other than a lease (e.g., 

MOA, MOU, License, Facility Use Agreement), in and of itself, will 

normally not alter the legalities involved.

(c) Questions on the need for office space should be directed to the 

applicable GSA Regional Office and Assistant Circuit Executive. The 

AO’s Space and Facilities Division is also available to address questions 

on space needs.