FAR 37.103—Contracting officer responsibility.
Plain-English Summary
FAR 37.103 assigns the contracting officer the central gatekeeping role for service acquisitions. It covers five main topics: determining whether a proposed service contract is personal or nonpersonal, seeking legal review in doubtful cases, documenting the file with the legal opinion and factual rationale when required, using performance-based acquisition methods to the maximum extent practicable, ensuring child care service contracts include criminal history background checks for covered employees, and meeting service contractor reporting requirements under the Service Contracts Inventory rules. The purpose of the section is to prevent improper service contracting arrangements, especially personal services contracts that are not authorized, and to promote sound acquisition planning, accountability, and compliance. In practice, this means the contracting officer must actively analyze the nature of the work, build a defensible file, and make sure the contract structure and administration align with FAR and agency-specific requirements. It also means service acquisitions are not just about price and schedule; they must be properly classified, documented, performance-based where possible, and reported correctly.
Key Rules
Classify the service correctly
The contracting officer must determine whether the proposed acquisition is for personal services or nonpersonal services using the definitions in FAR 2.101 and 37.101 and the guidance in FAR 37.104. This is a threshold legal and policy determination because personal services contracts are generally prohibited unless specifically authorized.
Seek legal review when uncertain
If the classification or legality of the proposed service contract is doubtful, the contracting officer must obtain review by legal counsel. This helps ensure the acquisition does not inadvertently create an unauthorized personal services relationship or otherwise violate FAR 37.104.
Document the file for personal-services analysis
Except for nonpersonal services contracts under paragraph (b), the file must include legal counsel’s opinion if any, a memorandum of facts and rationale supporting the conclusion that the contract does not violate FAR 37.104(b), and any additional documentation required by the agency. The record must show how the contracting officer reached the decision.
Nonpersonal services are exempt from some documentation
Paragraph (b) exempts nonpersonal services contracts from the documentation requirements in paragraph (a)(3). Even so, the contracting officer still must make the underlying determination that the contract is properly structured as nonpersonal services.
Use performance-based methods when practicable
The contracting officer must ensure performance-based acquisition methods are used to the maximum extent practicable when acquiring services. This means focusing on outcomes, measurable performance standards, and quality metrics rather than directing how the contractor performs the work.
Protect child care service employees
Contracts for child care services must include requirements for criminal history background checks on employees who will perform child care services, in accordance with 34 U.S.C. 20351 and agency procedures. This is a mandatory safeguard for vulnerable populations.
Meet service contract reporting requirements
The contracting officer must ensure service contractor reporting requirements are satisfied under FAR subpart 4.17, Service Contracts Inventory. This supports government-wide visibility into service spending and workforce use.
Responsibilities
Contracting Officer
Determine whether the proposed service is personal or nonpersonal; consult legal counsel in doubtful cases; document the file as required for the personal-services analysis; ensure performance-based acquisition methods are used to the maximum extent practicable; ensure child care service contracts include required background checks; and ensure service contract reporting requirements are completed.
Legal Counsel
Review doubtful cases involving the proper classification or legality of the proposed service contract and provide an opinion that can support the contracting officer’s file documentation.
Agency
Provide any additional documentation requirements beyond the FAR minimum, establish procedures for child care background checks, and support compliance with service contract inventory reporting and performance-based acquisition policies.
Contractor
Perform services under the contract structure established by the government, comply with any child care background check requirements applicable to its employees, and provide information needed for service contract reporting or administration as required by the contract.
Practical Implications
This section is a front-end compliance checkpoint: if the contracting officer misclassifies a service as nonpersonal when it is really personal, the contract can be improper and difficult to defend.
The file documentation matters because it creates the audit trail showing why the acquisition is lawful; missing rationale or legal review can become a problem in reviews, protests, or audits.
Performance-based acquisition is the default preference for services, so contracting officers should think in terms of outcomes, deliverables, and measurable standards early in acquisition planning.
Child care contracts require special attention because the background check requirement is mandatory and tied to employee screening, not just contractor corporate assurances.
Service contract inventory reporting is often overlooked, but failure to capture the contract correctly can create agency-level reporting errors and compliance findings.
Official Regulatory Text
(a) The contracting officer is responsible for ensuring that a proposed contract for services is proper. For this purpose the contracting officer shall- (1) Determine whether the proposed service is for a personal or nonpersonal services contract using the definitions at 2.101 and 37.101 and the guidelines in 37.104 ; (2) In doubtful cases, obtain the review of legal counsel; and (3) Document the file (except as provided in paragraph (b) of this section) with- (i) The opinion of legal counsel, if any, (ii) A memorandum of the facts and rationale supporting the conclusion that the contract does not violate the provisions in 37.104 (b), and (iii) Any further documentation that the contracting agency may require. (b) Nonpersonal services contracts are exempt from the requirements of paragraph (a)(3) of this section. (c) Ensure that performance-based acquisition methods are used to the maximum extent practicable when acquiring services. (d) Ensure that contracts for child care services include requirements for criminal history background checks on employees who will perform child care services under the contract in accordance with 34 U.S.C. 20351
and
agency procedures. (e) Ensure that service contractor reporting requirements are met in accordance with subpart 4.17 , Service Contracts Inventory.