Changes in contracting staff can create a sense of deja’ vous all over again and is what makes it so important to have modifications and agreements in interpretation in writing.  And one should always check on an agency’s authority to impose any requirement.  This question of authority has come up recently with the Army CDMRP “requirement” included in recent BAAs to use the NIH salary cap.  They have no authority to do that – NIH imposes a cap only because its authorization requires it to do so. 

Unfortunately, the FAR Trafficking clause is a statutory requirement.  PL 109-164, Trafficking Victims Protection Reauthorization Act of 2005 [Title II, Sec 201. (b)] by removing limitations in PL 108-193 [Trafficking Victims Reauthorization Act of 2003, Sec. 3 (b)] extended the requirements from the prior limitation to activities conducted abroad to ALL grants, contracts, or cooperative agreements awarded by the federal agencies.  Thus, the FAR (and DFAR) clauses.  We written, argued, pleaded, etc., that the FAR goes well beyond the statutory requirement and anticipate changes in the FAR.  We’ve urged the Grants Policy Committee not to follow the FAR example (COGR’s letters are available online at www.cogr.edu).  

And as for the logic of the language of the FAR – Robert, I can’t defend it.  A contract is issued for the acquisition of supplies and/or services including R&D; commercial services are defined at FAR 2.101 “Commercial item” as something sold competitively in substantial quantities in the commercial marketplace…etc.” 

Carol

 

 

This discussion may indicate a troubling trend.  I have a contract with AHRQ that is a smorgasbord of troublesome clauses.  As a private, non-profit foundation, we employer doesn't have any trouble accepting these clauses, but they must all be flowed down to our research partners, most of which are state universities.  The Contract Officer held out for months, demanding that we flow down clauses that, among other things, require indemnification by all our subawardees.  We finally prevailed, but it took a good deal of jaw-boning on my part.

The question is, have federal agencies been directed to include these clauses in their contracts, or has the turnover in the federal sector lead to a new generation of contract officers who don't understand their own regulations?

Jeffrey Ritchie
Grants Management Analyst
Aurora Health Care
3033 S. 27th Street; Ste 100
Milwaukee, WI 53215
(414) 385-2883

"Bloomberg, Robert" <xxxxxx@TUFTS-NEMC.ORG> Sent by: Research Administration List <xxxxxx@hrinet.org> 06/04/2007 09:46 AM Please respond to Research Administration Discussion List <xxxxxx@hrinet.org>

To xxxxxx@hrinet.org cc   Subject Re: [RESADM-L] FAR 52.222-50, Combating Trafficking in Persons in NASA contracts

Carol,

The following is verbatim from the FAR:

22.1701  Applicability.
This subpart applies to acquisitions of all services except for commercial services under Part 12.

That seems pretty clear to me.  If NSF is interpreting it to apply to all contracts except commercial service contracts, then the Englaish language makes no sense any more.

-----Original Message-----
From: Research Administration List [mailto:xxxxxx@hrinet.org]On Behalf
Of Carol Blum
Sent: Monday, June 04, 2007 10:21 AM
To: xxxxxx@hrinet.org
Subject: Re: [RESADM-L] FAR 52.222-50, Combating Trafficking in Persons
in NASA contracts


Unfortunately, Robert, that isn't true and it's what makes the clause so
onerous.  The FAR clause applies to all contracts except commercial
service contracts.  Some universities have been successful with NIH
getting the contracting officer to affirm, in writing, that the
provisions of the clause ONLY apply to employees directly engaged in the
project (it limits the scope and the tasks of education, written
attestations, etc.).  This approach relies on the ambiguity in the
definition of employee that's embedded inside the FAR clause.  This
request for interpretation should be accompanied by a request for a
pledge to modify the requirement when the final FAR clause is issued.
That pledge to modify is equally important to get in writing to ensure
that any changes (and limitations in scope and requirements) are
reflected in current contracts.
Carol

-----Original Message-----
From: Research Administration List [mailto:xxxxxx@hrinet.org] On
Behalf Of Bloomberg, Robert
Sent: Monday, June 04, 2007 9:50 AM
To: xxxxxx@hrinet.org
Subject: Re: [RESADM-L] FAR 52.222-50, Combating Trafficking in Persons
in NASA contracts

The clause only applies to SERVICES contracts, not to R&D, which, as a
University, I presume you are doing.  Also, the Govt calling it a
service contract does not per se make it one.

-----Original Message-----
From: Research Administration List [mailto:xxxxxx@hrinet.org]On Behalf
Of Monique Anderson
Sent: Sunday, June 03, 2007 10:40 PM
To: xxxxxx@hrinet.org
Subject: [RESADM-L] FAR 52.222-50, Combating Trafficking in Persons in
NASA contracts


Colleagues -

The University of Maryland is working on negotiating a NASA contract and
we have met terrific resistance on modifications to the subject FAR
clause, 52.222-50 Combating Trafficking in Persons, either deletion in
its entirety, or deviations (ONR, NIH, any other agencies so far?).

Have any of you run into this clause in NASA contracts and successfully
negotiated it out?  Successfully included a deviation?  If so, which
NASA center was it and what was the outcome?

Many thanks for your assistance.  

Monique



Monique Anderson
Assistant Director
Office of Research Administration and Advancement
University of Maryland
College Park, MD  20742
(301) 405-6272  phone
(301) 314-9569  fax
xxxxxx@umresearch.umd.edu


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Instructions on how to use the RESADM-L Mailing List, including
subscription information and a web-searchable archive, are available
via our web site at http://www.hrinet.org (click on "Listserv Lists")
======================================================================


======================================================================
Instructions on how to use the RESADM-L Mailing List, including
subscription information and a web-searchable archive, are available
via our web site at http://www.hrinet.org (click on "Listserv Lists")
======================================================================

====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================