use same on any other Government work without additional cost to the Government; and with respect thereto the Architect-Engineer* agrees to and does hereby grant to the Government a royalty-free license to all such data which he may cover by copyright and to all architectural designs as to which he may assert any rights or establish any claim under the design patent or copyright laws. The Architect-Engineer* for a period of three (3) years after completion of the project agrees to furnish and to provide access to the originals or copies of all such materials on the request of the Contracting Officer. *When used in construction contracts, substitute "Contractor" for "ArchitectEngineer." (b) Shop drawings for construction. In procuring shop drawings for construction, the Government shall obtain the unlimited right to use and reproduce such drawings, but shall not exclude a similar right in the designer or others. Accordingly, in contracts calling for delivery of such drawings, insert the following clause. RIGHTS IN SHOP DRAWINGS (APRIL 1966) (a) Shop drawings for construction means drawings, submitted to the Government by the Construction Contractor, subcontractor, or any lower tier subcontractor pursuant to a construction contract, showing in detail (i) the proposed fabrication and assembly of structural elements and (ii) the installation (i.e., form, fit, and attachment details) of materials or equipment. The Government may duplicate, use, and disclose in any manner and for any purpose shop drawings delivered under this contract. (b) This clause, including this paragraph (b), shall be included in all subcontracts hereunder at any tier. § 18.910-2 Data clauses for construction supplies and research and develop ment. The provisions of Subpart B, Part 9 of this chapter, relating to the acquisition of data and rights therein in connection with the procurement of supplies and materials and research and development are applicable where the procurement is confined to either construction supplies and materials (as distinguished from "construction" as defined in § 18.101-1) or experimental, developmental, or research work, or both. In some circumstances the right to use such data, including drawings, may be limited in accordance with appropriate paragraphs of Subpart B, Part 9 of this chapter. Where the proposed contract calls for either (a) experimental, developmental, or research work, (b) supplies and materials, or (c) both, in addition to either construction or architect-engineer work, the pertinent clauses of Subpart B, Part 9 of this chapter, shall be included in the contract, in addition to the appropriate clause or clauses prescribed by § 18.910-1. In such cases, the contract shall indicate clearly that the clauses of Subpart B, Part 9 of this chapter, apply only to the experimental, developmental, or research work, or only to the supplies and materials being procured, or to both, and that the appropriate clause or clauses prescribed by § 18.910-1 apply only to the construction or architect-engineer work. Subpart J-Taxes 10 AUTHORITY: The provisions of this Part 22 issued under sec. 2202, 70A Stat. 120; U.S.C. 2202. Interpret or apply secs. 23012314, 70A Stat. 127-133; 10 U.S.C. 2301-2314. § 22.000 Scope of part. This part deals generally with the obtaining of services by contract, and specifically with certain types of contracts which can properly be classified as service contracts. It does not cover the services of individuals obtained by direct appointment or through normal Civil Service employment procedures, nor does it cover the obtaining of services by grant. [32 F.R. 550, Jan. 18, 1967] Subpart A-Service Contracts in SOURCE: The provisions of this Subpart A appear at 32 F.R. 550, Jan. 18, 1967, unless otherwise noted. § 22.101 Definition of service contract. (a) A service contract is one which calls directly for a contractor's time and effort rather than for a concrete end product. For purposes of this definition, a report shall not be considered a concrete end product if the primary purpose of the contract is to obtain the contractor's time and effort and the report is merely incidental to this purpose. (b) Service contracts as defined above are generally found in areas involving the following: (1) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, and modernization or modification of supplies, systems and equipment; (2) Maintenance, repair, rehabilitation, and modification of real property; (3) Architect-engineering (see Part 18 of this chapter); (4) Expert and consultant services; (5) The services of DOD-sponsored organizations; (6) Installation of equipment obtained under separate contract; (7) Operation of Government-owned equipment, facilities, and systems; (8) Engineering and technical services; (9) Housekeeping and base services; (10) Transportation and related services; (11) Training and education; (12) Medical services; (13) Photographic, printing and publication services; (14) Mortuary services; (15) Communications services; (17) Data processing; (18) Warehousing; (21) Stevedoring; and (22) Research and development (see Part 4 of this chapter). § 22.102 "Personal services." § 22.102-1 Policy. The Civil Service laws and regulations and the Classification Act lay down requirements which must be met by the Government in hiring its employees, and establish the incidents of employment. In addition, personnel ceilings have been established for the Department of Defense. Except as otherwise authorized by express statutory authority (e.g., 5 U.S.C. 55a as implemented by the annual Department of Defense Appropriation Act-expert and consultant services (see Subpart B of this part)), these laws and regulations shall not be circumvented through the medium of "personal services" contracting, which is the procuring of services by contract in such a manner that the contractor or his employees are in effect employees of the Government. The contracting officer is responsible for assuring the implementation of this policy by considering the criteria in § 22.102-2 before entering into any service contract, and by obtaining a legal opinion in any doubtful case and in any case where express statutory authority for a personal service contract is to be invoked. § 22.102-2 Criteria for recognizing personal services. There are no definitive rules for characterizing particular services as “personal" or "nonpersonal." There are many factors involved, none of which alone is necessarily conclusive; the characterization in a particular case can only be the result of a balancing of the factors. The following factors shall be considered, as well as any others which are relevant: (a) The nature of the work (1) Whether the Government can obtain civil servants to do the job, or whether the contractor has specialized knowledge or equipment which is unavailable to the Government; (2) Whether the services represent the discharge of a Governmental function which calls for the exercise of personal judgment and discretion on behalf of the Government (this element, if present in a sufficient degree, may alone render the services personal in nature); and (3) Whether the requirement for services to be performed under the contract is continuing rather than short-term or intermittent; (b) Contractual provisions concerning the contractor's employees (in considering the following, it should be noted that supervision and control of the contractor or his employees, if present in a sufficient degree, may alone render the services personal in nature) — (1) Whether the Government specifies the qualifications of, or reserves the right to approve, individual contractor employees (but granting or denying security clearance and providing for necessary health qualifications are always permissible controls over contractor employees); (2) Whether the Government reserves the right to assign tasks to and prepare work schedules for contractor employees during performance of the contract; (3) To what extent the Government retains the right (whether actually exercised or not) to supervise the work of the contractor employees, either directly or indirectly; (4) To what extent the Government reserves the right to supervise or control the method in which the contractor performs the service, the number of people he will employ, the specific duties of individual employees, and similar details (however, it is always permissible to provide in the contract that the contractor's employees must comply with regulations for the protection of life and property); (5) Whether the Government will review performance by each individual contractor employee, as opposed to reviewing a final product on an overall basis after completion of the work; (6) Whether the Government retains the right to have contractor employees removed from the job for reasons other than misconduct or security; (c) Other provisions of the contract(1) Whether the services can properly be defined as an end product; (2) Whether the contractor undertakes a specific task or project that is definable either at the inception of the contract or at some point during performance, or whether the work is defined on a day-to-day basis; (3) Whether payment will be for results accomplished or solely according to time worked; and (4) To what extent the Government is to furnish the office or working space, facilities, equipment, and supplies necessary for contract performance; and (d) Administration of the contract(1) Whether the contractor employees are used interchangeably with Government personnel to perform the same functions; (2) Whether the contractor employees are integrated into the Government's organizational structure; and (3) Whether any of the elements in paragraphs (b) and (c) of this section are present in the administration of the contract, regardless of whether they are provided for by the terms of the contract. § 22.102-3 Examples of personal versus nonpersonal services. It is to be emphasized that the examples below are for illustrative purposes only and are not to be used as the basis for a determination in any specific case. (a) Personal. The following are examples of personal services contracts: (1) Contract for the furnishing of ordinary, day-to-day stenographic and secretarial services in a Government office under Government supervision exercised either directly or through a contractor supervisor, even if only for a peak work period of 2 weeks; (2) Contract for preparation of a staff type report on the operation of a particular Government office or installation, where no specialized skills are required and the report would ordinarily be prepared by the regular officers or employees of the office or installation even if there is to be no Government supervision and even if payment is to be for an "end product" report; (3) Contract for the furnishings of persons to perform the various day-today functions of contract administration for a Government agency, even if there is no Government supervision; and (4) Contract with an accounting firm to come in and perform day-to-day accounting functions for the Government. (b) Nonpersonal. The following are examples of nonpersonal service contracts: (1) Contract for field engineering work requiring specialized equipment and trained personnel unavailable to the Government but not involving the exercise of discretion on behalf of the Government, where the contractor performs work adequately described in the contract free of Government supervision; (2) Contract with an individual for delivery of lectures without Government supervision, at specific places on specific dates, and on a specialized subject, even if payment is by the hour; (3) Contract for janitorial services, where the contract provides for specific tasks to be performed in specific places, free of Government direction, supervision, and control over the contractor's employees, at a fixed price for the work to be performed; and (4) Research and development contract, providing a fixed price for a level of effort, as long as the work is performed by the contractor independently of Government direction, supervision, and control. § 22.102-4 Determination by contracting officer; documentation of contract file. At the time the contracting officer receives, through a purchase request or other document, any requirement for the procurement of services, he shall determine whether the procurement is proper in the light of the personal services policy in § 22.102. He shall not proceed with the procurement without documenting the contract file with: (a) A brief memorandum of his determination that the services are nonpersonal, together with his reasons and all the facts which bear on the personalnonpersonal question, or a memorandum of his determination that procurement of the services is expressly authorized by statute, regardless of whether personal; and (b) An opinion of counsel obtained pursuant to § 22.102-1 in any doubtful case and in any case where express statutory authorization is invoked; and (c) Any further documentation which may be required by Departmental implementation. § 22.103 Competition in service contracting. The provisions of statute and of this subchapter requiring competition are fully applicable to service contracts. Therefore, unless otherwise provided by statute, contracts for services shall be awarded through formal advertising, whenever "feasible and practicable under the existing conditions and circumstances" (10 U.S.C. 2304(a); § 1.300–2 of this chapter). When formal advertising is not feasible and practicable and negotiations is authorized (see 10 U.S.C. 2304 (a) (1)–(17); Subpart B Part 3 of this chapter), competition still must be obtained to the maximum practicable extent, except for procurements not in excess of $250 (§§ 1.300-1, 3.101, 3.604). The method of obtaining competition will vary with the type of service being procured, and will not necessarily be limited to price comparison alone (see § 3.805-1(d)). § 22.104 Conflict of interest in service contracting. In procuring services by contract, the applicable provisions with respect to conflicts of interest shall be observed (see § 1.113 and Part 141 of this chapter). § 22.105 Small business certificate of competency. In those service contracts where the highest competence obtainable is a requirement of the Government, the small business certificate of competency procedures may not be applicable (see § 1.705-4(b)). § 22.106 Service Contract Act of 1965. Implementation of the Service Contract Act of 1965 (P.L. 89-286), which provides for minimum wages and fringe benefits as well as other conditions of work under certain service contracts, is contained in Subpart J, Part 12 of this chapter. Subpart B-Procurement of Expert or Consultant Services SOURCE: The provisions of this Subpart B appear at 32 F.R. 551, Jan. 18, 1967, unless otherwise noted. |