2. Systems Engineering and Technical Assistance

Comment: Two respondents observed that there is no definition of "Systems Engineering and Technical Assistance" in statute or regulation and noted that the FAR defines "systems engineering" and "technical direction," which may not necessarily be exactly the same as "systems engineering and technical assistance."

One of the respondents expressed concerns that the definition of "Systems Engineering and Technical Assistance" is vague and that the rule should add "to support requirements definition, source selection, or evaluation of contractor performance in a Major Defense Acquisition Program."

Several respondents proposed that the "systems engineering and technical assistance" definition be restricted to activities and functions that relate to supporting source selection and testing activities that might trigger bias and impaired objectivity OCIs. According to these respondents, all other support should be classified as engineering or program support; and the related OCIs should be addressed through standard mitigation techniques. "Systems Engineering and Technical Assistance" needs to be better defined and only address those circumstances when the contractor has "authority" and is in a position to unduly influence a program, event, or outcome.

Response: DoD decided to provide a unified definition for "systems engineering and technical assistance" as a single term, as well as the individual definitions of "systems engineering" and "technical assistance", because "systems engineering and technical assistance" is the statutory term and is the recognized term for a particular type of contract. DoD sought advice from systems engineering and technical assistance subject matter experts within DoD to arrive at a more comprehensive definition of the term. In response to public comments, DoD changed the requirement from "substantially all" to "any" and clarified that "directing other contractors' operations" does not apply to the operations of subcontractors. It is not necessary to include in the definition of SETA that it is only for MDAPs. SETA contracts could be for other types of programs as well. The limitation to MDAPs is accomplished through the policy statements and the clause prescriptions.

The definition should not restrict the meaning to select activities based on the presumption of the likelihood of the occurrence of an OCI. While potential OCIs can be significant concerns in source selection and testing activities, potential OCIs can exist in other activities, with harmful repercussions to DoD. The determination of the existence of potential for an OCI is situational and based on the facts and conditions. It is up to the contracting officer to determine the potential for an OCI. The definition should not be based on the presumption that an OCI will occur for SETA contracts and will not occur in the range of other activities.

Comment: One respondent made several comments about the definitions of a number of activities cited within the definition of "systems engineering" and "technical assistance" and suggested further definitional clarity of the activities. The respondent asked what "determining specifications" means and what "determining interface requirements" means. The respondent cited a number of specific actions a contractor may be asked to perform and asked if the work would fall under the DFARS definition of SETA.

Response: Further definition of the activity elements is not required. These terms are in common use. It is up to the contracting officer, exercising common sense, good judgment, sound discretion, and the advice of technical experts to determine if the activities in a solicitation would be covered by the definition of SETA.

Comment: One respondent recommended that the SETA definition should include a statement that the contractor performs the services, but will not be delivering the system. The respondent cites Section 203.1270-6 (now 209.571-7) as the basis for this change.

Response: The consequence of being a SETA contractor is outside of, and unnecessary for, inclusion within the definition of what a SETA contractor is. While 209.571-7 prohibits a SETA contractor from participating as a contractor or major subcontractor on the related program, there are certain instances listed in 209.571-7 where the paragraph does not apply. Changing the definition of SETA is unnecessary and could lead to erroneous application of the rule.