911 Purpose. To establish requirements and procedures for legal sufficiency reviews of vulnerable procurements. This section describes criteria for identifying potentially vulnerable procurement actions and outlines procedures to follow in submitting such actions to the Office of the Solicitor (O/SOL) for review.
912 Authority. This section is issued pursuant to the requirements of:
a. Federal Acquisition Regulation (FAR) Part 1 which contains the governing procurement policies for all civilian agencies effective April 1, 1984.
b. Department of Labor Acquisition Regulation (DOLAR), 48 CFR Chapter 29, which sets forth the Department's implementation of the FAR.
c. Section 113 of the Accounting and Auditing Act of 1950 (as amended).
913 Background. Section 113 of the Accounting and Auditing Act of 1950 (as amended) requires the head of each executive agency to certify that the agency's systems for internal accounting and administrative control comply with standards prescribed by the Comptroller General. The departmental procurement regulations recommend that legal advice and assistance be obtained from O/SOL as required. The growing dollar value and complexity of departmental procurements indicate the increasing need for legal sufficiency reviews as an important administrative control. The contracting officer is the one who establishes the binding legal relationships which affect the goods and services acquired by the Department. Therefore, contracting officers are most able to identify vulnerable and/or complex procurement actions and to initiate the legal review process prior to their execution. Legal sufficiency reviews of such actions may preclude costly disputes and delays. If used appropriately and in a timely manner, legal reviews could strengthen and improve departmental procurement.
a. Vulnerable procurement action is any solicitation, modification and/or award which raises issues with the potential to involve the Department in disputes, protests, costly delays, litigation, or possibly fraudulent transactions.
b. Legal sufficiency review is the process initiated by the contracting officer for seeking legal advice and recommendations from O/SOL prior to carrying out a vulnerable and/or complex procurement action.
915 Policy. Contracting officers shall identify vulnerable procurement actions according to the criteria stated in paragraph 917 below. In addition, contracting officers shall seek legal advice promptly when there is doubt or controversy, so that legal problems and issues are resolved prior to the execution of procurement actions. While contracting officers retain authority for the final resolution of issues, O/SOL's recommendations and the resolution of issues raised may require policy input from the Procurement Executive.
a. Contracting Officers are responsible for identifying vulnerable and/or complex procurement actions according to the criteria outlined in paragraph 917 below. Recommendations resulting from SOL reviews are to be documented in the official contract files. Contracting officers are responsible for the resolution of issues raised. If an issue cannot be resolved to the satisfaction of both parties, the matter should be referred to the Procurement Executive.
b. The Office of the Solicitor is responsible for providing timely legal advice and recommendations on vulnerable and/or complex procurement actions submitted by contracting officers. O/SOL shall provide a written concurrence/nonconcurrence memorandum when responding to a request for a legal sufficiency review or may establish a more informal procedure if the situation warrants it.
a. The presence of one or more of the following situations may indicate that a procurement is vulnerable:
(1) Procurements in past problem areas,
(2) Procurements using complex legal clauses such as liquidated damages,
(3) Exceptional or first time procurements such as a new model solicitation or contract,
(4) Procurements with aspects not covered by the DOLAR; or FAR, or
(5) Default notices, terminations for convenience or protests against award.
b. The effect of a legal problem may be especially serious if a procurement is very large or very important, e.g., a multi-million dollar procurement that is critical to accomplishing an Agency program. In such cases, the contracting officer may decide to seek legal review even though none of the situations listed in paragraph a. is present.
a. Initiation. Contracting officers shall consider the potential vulnerability of each procurement. If a contracting officer concludes that a procurement may be vulnerable or wishes legal review because of the size or importance of a procurement, he or she shall promptly initiate informal discussions with the O/SOL and shall seek formal legal review as early as possible in the acquisition cycle.
b. Content. A request for legal review shall identify the specific aspects or issues about which the contracting officer needs advice and may request review of an entire document such as a new model solicitation. The request should include any relevant documents.
c. Resolution. O/SOL recommendations, provided in a written concurrence/nonconcurrence memorandum or more informally, if warranted, shall be documented in the official contract file. If an issue is not resolved to the satisfaction of both parties, the matter should be forwarded to the Procurement Executive. While the contracting officer retains final authority for issue resolution, the Procurement Executive shall provide necessary policy direction to both the O/SOL and contracting officer in order to assist in resolution.
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