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CONTRACTORS IN THE FEDERAL WORKPLACE

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WHO'S GUARDING THE CHICKEN COOP? ... adequately protected the database (or has he let the fox into the chicken coop) ... GUARDING THE CHICKEN COOP? *THE BOTTOM ... – PowerPoint PPT presentation

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Title: CONTRACTORS IN THE FEDERAL WORKPLACE


1
CONTRACTORS IN THE FEDERAL WORKPLACE
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL
2
INTRODUCTION
  • Contract employees are not federal employees
  • Safeguard proprietary, Privacy Act, and other
    sensitive information
  • Resolve possible conflicts of interest

3
INTRODUCTION
  • Beware of gifts between contract employees and
    federal employees
  • Post-government employment discussions need to be
    carefully vetted
  • Dont let contractor/employee issues fester

4
CONTRACTORS ARE NOT FEDERAL EMPLOYEES
  • No employer-employee relationship between federal
    and contractor employees.
  • Relationship is between govt and contractor not
    govt and contract employees.
  • Only contracting officer can modify the contract.
  • Do not direct any work, especially out-of-scope
    work fine line between coordination and
    direction.

5
CONTRACTORS ARE NOT FEDERAL EMPLOYEES
  • Federal employees do not supervise contract
    employees.
  • Federal employees cannot approve contractor
    employee leave, approve weather delays, and does
    not give contractor employees appraisals or
    awards.
  • Contracting Officer Representatives (CORs) will
    communicate any issues to Contracting Officer
    CORs must know the contract.

6
CONTRACTORS ARE NOT FEDERAL EMPLOYEES
  • Contractors cannot perform inherently
    governmental functions.
  • Some examples are
  • direct conduct of criminal investigations
  • command of military forces
  • direction and control of federal employees
  • determining agency requirements and
  • determining agency policy.

7
CONTRACTORS ARE NOT FEDERAL EMPLOYEES
  • Identify contractor employees.
  • Be able to distinguish badges or other
    identifier.
  • Govt employees should be aware of the different
    status and identify contractors in
    teleconferences and meetings.

8
SAFEGUARD SENSITIVE INFORMATION
  • Protect classified informationenough said.
  • Procurement Integrity Act prohibits disclosure
    and obtaining source selection information or bid
    or proposal information.
  • Applies to present/former govt employees and
    contractors.
  • Individuals face up to five years confinement,
    fines up to 50,000 per violation, and adverse
    personnel action.

9
SAFEGUARD SENSITIVE INFORMATION
  • Source selection information is
  • Bid prices
  • Proposed costs or prices
  • Source selection plans
  • Technical evaluation plans
  • Technical evaluation of proposals
  • Costs or price evaluations of proposals

10
SAFEGUARD SENSITIVE INFORMATION
  • Competitive range determinations
  • Rankings of bids, proposals, or competitors
  • Reports and evaluations of source selection
    panels, boards, or advisory councils and
  • Other information marked as Source Selection
    Information.

11
SAFEGUARD SENSITIVE INFORMATION
  • Privacy Act prohibits disclosure of Privacy Act
    information.
  • Applies to govt employees.
  • An individual faces conviction of a misdemeanor
    and a fine up to 5K.

12
SAFEGUARD SENSITIVE INFORMATION
  • Trade Secrets Act, in part, prohibits the
    disclosure and receipt of trade secrets.
  • Applies to everyone.
  • Individuals face up to 500K in fines or up to
    ten years confinement (harsher when benefitting
    foreign govt or agent), and adverse personnel
    action.

13
RESOLVE POSSIBLE CONFLICTS OF INTEREST
  • Prevent the existence of conflicting roles that
    might bias a contractors judgment.
  • Prevent unfair competitive advantagewhen
    contractor competing for award of a contract
    possesses other contractors proprietary
    information or source selection information
    relevant to contract but not available to all
    competitors that would assist contractor in
    obtaining contract.

14
CONFLICT OF INTERESTCONFLICTING ROLES
  • Before an acquisition for information technology
  • (IT) is conducted, Company A is awarded a
  • contract to prepare data system specifications
    and
  • equipment performance criteria to be used as the
  • basis for the equipment competition.
  • With regard to the equipment competition, does a
  • possible conflict of interest exist?

15
CONFLICT OF INTERESTCONFLICTING ROLES
  • Since the specifications are the basis for
    selection
  • of commercial hardware, a potential conflict of
  • interest exists. Company A should be excluded
  • from the initial follow-on IT hardware
    acquisition

16
RESOLVE POSSIBLE CONFLICTS OF INTEREST
  • Resolve both real and appearances of conflicts of
    interest, for example,
  • Close relationships between govt employees
  • and contractor employees and
  • Govt employee on source selection evaluation
    team has financial interest in offeror
    contractor.
  • Violation of any principle of the 14 Principles
    of Ethical conduct is grounds for an adverse
    personnel action.

17
GIFT RULES
  • Do not solicit or accept gifts from contractor
    employees.
  • Exceptions
  • Gifts (not cash) up to 20/occasion 50/year
  • Based on personal relationship and
  • Widely attended gathering there will be explicit
    guidance when this can be used.

18
Post-Govt Employment
  • Dont begin post-government employment
  • discussions with contractors until you talk to an
  • Ethics Counselor at JA
  • New DoD reqt for post-govt employment education
    and certification.
  • Federal criminal statutes can apply to military
    officers and civilians if they fail to follow the
    rules.
  • Ask for advice early.

19
Here comes the fun part
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL
20
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL
  • EXERCISES

21
BACKGROUND
  • NGBs Office of Miscellaneous Affairs (NGB-XYZ)
    is re-competing its support service contract.
  • IDIQ, 5 Years, gt 100,000,000 per year.
  • Supports virtually all NGB-XYZ functions.
  • KNOWALL, Inc. is incumbent.
  • WANNABE, Inc. wants the new contract.

22
THE PHANTOM BRIEFER
  • COL Hardcharger, PM for the support contract,
    tasks KNOWALLs marketeer, Mr. Icandoit, to
    brief General Getsued Daily on a concept plan to
    increase NGB-XYZs mission (which will also
    increase KNOWALLs support contract).
  • Mr. Icandoit conducts the briefing but does not
    identify himself as a KNOWALL employee.
  • The briefing convinces General Daily to double
    the size of the NGB-XYZ mission.
  • Has Mr. Icandoit violated any laws?

23
THE PHANTOM BRIEFERTHE BOTTOM LINE
  • Mr. Icandoit may brief NGB-XYZs plan to expand
    its mission since the IDIQ contract is broadly
    written to cover this activity.
  • Mr. Icandoit did not violate any laws, BUT...
  • COL Hardcharger should have introduced Mr.
    Icandoit as an KNOWALL employee to all attendees
    at the outset of the briefing
  • Mr. Icandoit may not prepare or brief the
    acquisition strategy for the ESS procurement
    since such activity will result in an OCI problem
    and an unfair competitive advantage.

24
THE LEAK
  • Mr. Gooddeal, a NGB-XYZ employee, and Mr. Wally
    Street, a KNOWALL employee, were not involved in
    the source selection process but overheard a
    conversation between two SSEB members.
  • They heard that KNOWALL won the follow-on
    contract which will not be publicly announced
    until noon tomorrow.
  • They immediately called their brokers and
    purchased 1000 shares of KNOWALL stock at 10 per
    share.
  • After the award is announced the next day,
    KNOWALLs stock jumps to 20 per share giving
    both shrewd investors a tidy profit.
  • Is there anything wrong with this?

25
THE LEAKTHE BOTTOM LINE
  • The leak of sensitive information is a risk with
    contractors in the Federal workplace.
  • Create an awareness of the need to safeguard
    sensitive information.
  • Ensure that Government employees know who the
    contractor employees are.
  • Keep co-location of Government and Contractor
    personnel to a minimum, especially in areas where
    sensitive information is present.

26
NGB-XYZ EMPLOYEE PICNIC AND ORGANIZATION DAY
  • It is that time of the year for the NGB-XYZ
    Employee 1st Annual Picnic.
  • LTC John Doe recommends that the NGB-XYZ CG
    invite all NGB-XYZ contractor employees to the
    picnic. After all, they are part of the NGB-XYZ
    family and should participate and enjoy the
    work-day off with the NGB-XYZ employees.
  • Should the NGB-XYZ CG invite all contractor
    employees to participate in the picnic and
    organization day activities with the NGB-XYZ
    employees?

27
NGB-XYZ EMPLOYEE PICNIC THE BOTTOM LINE
  • Although better to limit participation to NGB-XYZ
    employees, it is okay to permit KNOWALLs
    employees to attend the picnic, but
  • It is up to KNOWALL as to whether they get time
    off and how
  • We dont pay for services not provided
  • We dont solicit KNOWALL employees when
    fundraising
  • We dont subsidize KNOWALL employees.

28
THE LEVEL PLAYING FIELD
  • Because of its incumbent status and because it
    routinely overhears nonpublic information from
    NGB-XYZ personnel, only KNOWALL fully understands
    the complex work described vaguely in the RFP.
  • KNOWALL has five years of cost performance
    reports that show trends for the future.
  • The NGB-XYZ CDR and her staff are totally
    satisfied with KNOWALLs outstanding work.
  • WANNABE wants to unseat KNOWALL, but feels that
    it is at a significant disadvantage.
  • Does KNOWALL have an unfair competitive advantage
    in the upcoming re-competition?

29
THE LEVEL PLAYING FIELDTHE BOTTOM LINE
  • KNOWALLs advantages derived from its experience,
    resources, or skills obtained in the performance
    of its current NGB-XYZ contract are not unfair.
  • But advantages derived from an inequitable
    release of information to KNOWALL or from an
    ambiguous RFP are unfair, jeopardizing the
    viability of the award and the integrity of the
    Federal procurement system.

30
ALL IN THE FAMILYDOES SPOUSAL EMPLOYMENT
MATTER?
  • Susan, a KNOWALL technical expert, is assigned by
    her employer to help SSEB members evaluate
    proposals on a NGB-XYZ RFP for a new hi-tech
    navigation system.
  • Someone knows her husband, and says that he works
    for one of the offerors as their Vice-President
    for Government Operations.
  • Do the conflicts of interest rules prevent Susan
    from providing this technical assistance to the
    SSEB?

31
ALL IN THE FAMILY THE BOTTOM LINE
  • Generally, conflict of interest laws and the
    Joint Ethics Regulation do not apply to
    contractor employees.
  • Support contract should require disclosure and
    avoidance of potential conflicts.
  • Susan may help the SSEB if no organizational
    conflict of interest and if she signs a
    non-disclosure agreement.
  • But, Susan should not consult if her husband is
    employed by one of the offerors.

32
WHOS GUARDING THE CHICKEN COOP?
  • KNOWALL is tasked to perform work requiring
    access to the proprietary technical data package
    (TDP) for the hi-energy navigation system (HENS).
  • All of NGB-XYZs TDPs are stored in an electronic
    database. COL Hardcharger assigns KNOWALL a
    password to enter the database.
  • COL Hardcharger, recognizing that the database
    contains proprietary TDPs of numerous
    contractors, orders the KNOWALL employees to
    access only the HENS TDP and not reveal its
    contents to anyone outside the Government.
  • Has COL Hardcharger adequately protected the
    database (or has he let the fox into the chicken
    coop)?

33
WHOS GUARDING THE CHICKEN COOP?THE BOTTOM LINE
  • Government may not give support contractors
    access to proprietary information unless
    proprietary owner consents.
  • Contractor and its employees should sign
    nondisclosure agreements.
  • Access should be limited--no carte blanche
    access.

34
CONTRACTOR LARGESSE DIFFERENT RULES FOR
DIFFERENT FOLK
  • About to retire, COL Hardcharger, PM for the
    support contract, invites his employees to dinner
    at his house. Mark, a KNOWALL employee, who
    has no personal relationship with COL
    Hardcharger, brings a 22 bottle of wine.
  • Mark invites COL Hardcharger and his wife for
    drinks dinner at his favorite restaurant.
  • COL Hardchargers XO solicits contributions from
    everyone for his retirement gift (a 250
    briefcase). Mark contributes 25.
  • May COL Hardcharger accept Marks gifts?

35
CONTRACTOR LARGESSE THE BOTTOM LINE
  • COL Hardcharger may not accept the wine the
    value exceeds 20 and no other exception applies.
  • COL Hardcharger may not accept the invitation
    from Mark for dinner at his favorite restaurant.
  • XO may not solicit gifts or contributions to
    gifts from outside sources, e.g., contractor
    employees.

36
THE OPPRESSIVE PM
  • COL Hardcharger routinely directs KNOWALLs
    design engineer, Mr. Meek, to perform tasks that
    are beyond the scope of the contract.
  • Mr. Meek is afraid to object to the contracting
    officer because COL Hardcharger has threatened to
    give KNOWALL an adverse past performance report
    (past performance will be a significant
    evaluation factor in the follow-on competition).
  • COL Hardcharger required Mr. Meek to work
    uncompensated overtime on slides for his wifes
    save the whales presentation.
  • Is COL Hardchargers conduct improper?

37
THE OPPRESSIVE PMTHE BOTTOM LINE
  • Dont require performance outside the contract
    scope -- keep CO in the loop.
  • Dont supervise contractor employees or risk
    improper personal services.
  • Dont let contractor employees perform inherently
    governmental functions.
  • Dont use government contractors for personal
    benefit.

38
THE DATING GAME
  • LTC Megabyte is the new NGB-XYZ Information
    Manager.
  • He is dating Jane Data, the KNOWALL employee
    responsible for Information Management support.
  • The Information Management COTR works for LTC
    Megabyte and is responsible for a number of
    KNOWALL task orders, and the Information
    Management part of the upcoming re-competition.
  • Must LTC Megabyte stop dating Jane Data?

39
THE DATING GAME THE BOTTOM LINE
  • No, but
  • LTC Megabyte should not participate in any
    contract issues, including the follow-on
    contract.
  • LTC Megabyte should not rate COTR.
  • LTC Megabyte should issue a written notice of
    disqualification.
  • Commander might want to select someone else as
    Information Manager.

40
  • QUESTIONS?
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