1.  Applicability - This appendix applies to all proposed acquisitions for services expected to exceed $2,500, except the following:

--Equipment repair
--Construction
--Services from temporary service firms
--Maintenance (except IT facilities maintenance)

2.  References

--Department Administrative Order (DAO) 208-10;
--Procurement Memorandum 95-26;
--Office of Federal Procurement Policy (OFPP) Policy Letter 92-1 (http://www.acqnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-1.html)
--Office of Federal Procurement Policy (OFPP) Policy Letter 93-1 (http://www.acqnet.gov/Library/OFPP/PolicyLetters/Letters/PL93-1.html)
--Federal Acquisition Regulation (FAR) Parts 37.1, 37.2, 37.5, and 37.6

3.  Definitions

a.  Advisory and assistance services are those services provided under contract by nongovernmental sources to support or improve: organizational policy development; decision-making; management and administration; program and/or project management and administration; or R&D activities.  It can also mean the furnishing of professional advice or assistance rendered to improve the effectiveness of Federal management processes or procedures (including those of an engineering and technical nature).  In rendering the foregoing services, outputs may take the form of information, advice, opinions, alternatives, analyses, evaluations, recommendations, training and the day-to-day aid of support personnel needed for the successful performance of ongoing Federal operations.  All advisory and assistance services are classified in one of the following definitional subdivisions: Management and professional support services; studies, analyses and evaluations; and engineering and technical services.  A list of Advisory and Assistance Services is available in DAO 208-10, located at:
http://204.193.232.34/cgi-bin/doit.cgi?204:112:834508436:143

b.  Nonpersonal services contract means a contract under which the personnel rendering the services are not subject, either by the contract’s terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.

c.  Personal services contract means a contract that, by its express terms or as administered, makes the contractor personnel appear, in effect, as Government employees.

d.  Performance-based contracting means structuring all aspects of an acquisition around the purpose of the work to be performed as opposed to either the manner by which the work is to be performed or broad and imprecise statements of work.

e.  Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply.  A service contract may be either a non-personal or personal contract.  It can also cover services performed by either professional or nonprofessional personnel whether on an individual or organizational basis.

f.  Professional Support Services include services such as Architect and Engineering Services, IT Facility Operation and Maintenance Services, Translation and Interpreting Services, Market Research and Public Opinion Services, etc.  See link at paragraph 3a.

4.  Exclusions - The following services are excluded from the definition of Advisory and Assistance Services:

a.  Routine Federal information processing 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 (Section 901 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 541).

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

5.  Policy

a.  Personal vs. Non-Personal Services - Services may be classified as either personal or non-personal.  The use of personal service contracts in the Federal Government is rare and is essentially limited to obtaining the services of experts or consultants by excepted appointments.  NIST contractual service requirements fall exclusively into the realm of non-personal service contracts in which the Government may not exercise direct supervision or control of the work or workers.

b.  Advisory and Assistance Services/Professional Support Services - The acquisition of advisory and assistance services and professional support services represent legitimate ways to improve Government services and operations.  Accordingly, these services may be used at all organizational levels to help managers achieve maximum effectiveness or economy in their operations.  Such contracts shall be managed by the Government in such a way that an employer-employee relationship is not established or perceived.

c.  Per Federal Acquisition Regulation (FAR) 37.203, 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.

d.  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.

e.  Performance-Based Contracting - It is the objective of the Government to document its acquisition requirements in such a way as not to direct, in detail, the manner in which services are to be performed, but to generally describe its requirements in terms of the purpose of the work to be performed.  In other words, the Performance Work Statement should generally describe the desired outcome of the work, but not the specific manner in which the contractor will reach the desired outcome.

f.  General - It is the objective of the Department of Commerce, as established in DAO 208-10, Management of Contracted Services, to ensure that all contracted services are managed such that:

--Only services essential to the mission of the Department are acquired;
--Contractors do not perform inherently governmental functions;
--There is adequate monitoring of contractor cost-effectiveness and accountability for results; or
--Appropriate procurement policies are observed, such as emphasis on adequate competition, use of performance-based contracting, mitigation of potential conflicts of interest and diversity in contracting/subcontracting.

g.  Services by Former NIST Employees:

(1) NIST may award small contracts of $25,000 or less to former NIST employees, who have retired, but who are essential to critical services, in order to document their unique knowledge and experience or otherwise transfer their skills to junior staff members so that ongoing programs may continue with timely and quality outputs.  These contracts are typically awarded within six months after the employee’s date of separation.  For researchers, contracts will not be used to initiate new research or measurement programs; however, prior ongoing research may occur consistent with the need to transfer the retiree’s expertise.  The sole purpose of the contract must be to transfer accumulated knowledge--not to perform previous NIST duties.  The retiring/retired employee and the Program Manager will be required to certify in writing that a contract has not been offered in return for the individual’s retirement and that the Program Manager has not provided a guarantee of a contract to the individual upon his/her retirement.  The employee should sign a separate certificate, to be attached to the NIST-1082.  (See 6.d., below)

(2) The prohibition on personal service contracts applies to contracts with former NIST employees.  An employer-employee relationship shall not be established.

(3) Contracts for the transfer of knowledge will typically be for a period not to exceed one year and will not exceed 25 percent of the individual’s yearly Government base salary (exclusive of benefits) in return for one-fourth of the individual’s annual effort.  Contracts may be extended for one additional year, as necessary.

(4) NIST may award contracts for supplies/services (other than transfer of knowledge to former NIST employees, explained above) consistent with NIST policy for all competitive and non-competitive requirements.  The contract limit of 25% of the employee’s base salary does not apply to contracts other than those for the transfer of knowledge.

6.  Procedures – Pre-Award

a. Document submittal requirements can be found at http://www-i.nist.gov/admin/amd/acquisition/list_req_docs.shtml.  Completed documents shall be submitted to the Acquisition Management Division (AMD) for Gaithersburg and MASC for Boulder.

b. General Services, Form NIST-1082, Certification Of Proposed Acquisition For Services

(1) In order to ensure that the above objectives are met, requisitioners shall complete Form NIST-1082, Certification of Proposed Acquisition for Services, and submit it with a requisition submitted via CSTARS for all proposed acquisitions for services estimated to exceed $2,500, which fall into one of the following categories:

--Advisory and Assistance Services
--Professional Support Services
--Services by former NIST employees
--Cost-Reimbursement Contracts for all other services
--Task orders under other agency contracts (e.g., GSA FSS) (Note:  A NIST-1082 is not required for local Government-wide Acquisition Contract (GWAC) and Indefinite Delivery Indefinite Quantity (IDIQ) task orders.)
--Modifications to the above actions which increase the total estimated dollar amount above $2,500

(Note: To determine whether the required services are classified as “Advisory and Assistance Services” or “Professional Support Services,” refer to DAO 208-10.)

c.  Services by Former NIST Employees - For requested services by a former NIST employee, or competitive requirements in which a former NIST employee is a suggested source, the requisitioner shall also complete Sections A, B, and C of NIST-1082, ensuring that the requested services are within the NIST policy, as stated above.

d.  Contracts for the transfer of knowledge by former NIST employees require the OU Director to certify in Section E that:

(1) The contract requirement represents a legitimate need of the Government.
(2) The sole source justification is valid for the reasons set forth in the Justification for Other than Full and Open Competition.
(3) None of the contract payment for services is in return for the individual’s retirement.
(4) The payment is reasonable for the services to be rendered and will not exceed 25% of the individual’s annual base salary in return for 25% of the individual’s annual effort.
(5) The use of the contract mechanism to transfer the individual’s expertise is the most programmatically effective and cost-efficient approach available.

e.  The former NIST employee must likewise sign a certification to include the following:   “This is to certify that a contract has not been offered to me in return for my retiring; nor has the Program Manager guaranteed me a contract upon my retirement.”   This certification should be attached to the NIST-1082.

7.  Post-Award Evaluation Of Contracted Services - In accordance with DoC Procurement Memorandum 95-26 (available at http://oamweb.osec.doc.gov/docs/PM_95-26.htm) and FAR 42.1502, evaluations of contractor performance shall be prepared for all contracts over $100,000, by the office or division that requested the contract.  Evaluations will be documented by using the Contractor Performance Report which will be provided by the AMD Procurement Office.