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Contractors In The Workplace

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Title: Contractors In The Workplace


1
Contractors In The Workplace
  • Presented by
  • Pacific Area Counsel Office

2
Overview
  • Nature of Employment
  • Conflict of Interest Statutes and Regulations
  • Personal Services Inherently Governmental
    Functions
  • Ethical Rules for Contractors
  • Time Management
  • Use of Resources
  • Training
  • Unofficial Events
  • Fundraising
  • Political Activities
  • Awards
  • Transportation
  • Gifts
  • Employment

3
Nature of Federal and ContractEmployment
Federal Employee Hiring Authority Contractor Hiring Authority Statutory, Regulatory At will, contract, verbal
Federal Employee Management Contractor Management Statutory, Regulatory Terms of Contract
Federal Employee Operation Authority Contractor Employee Operation Authority Authorize Expense, Determine Claims, Adjust Obligations, Hire, Remove Determined by the contract
4
Hiring Government Employees By Contract
  • The Government acts through its agent-the
    Contracting Officer
  • Contracts on behalf of the Government
  • Contract with the U.S. Government must comply
    with the laws and regulations that permit the
    agreement and must be made by a Contracting
    Officer with actual authority to make the
    contract.

5
Authorized Personal Services
  • Expert and consultant services 5 usc 3109 or 10
    usc 129b
  • Health services 10 usc 1091
  • Intelligence, counter intelligence or special
    operations command operations 10 USC 129b and
    DFARS 237.104
  • Personal Services Contracts - 10 usc 129b and 5
    usc 3109

6
Personal Services
  • FAR 37.104 --Personal Services Contracts.
  • A personal services contract is characterized by
    the employer-employee relationship it creates
    between the Government and the contractors
    personnel. Obtaining personal services by
    contract, rather than by direct hire, circumvents
    those laws unless Congress has specifically
    authorized acquisition of the services by
    contract.
  • Agencies shall not award personal services
    contracts unless specifically authorized by
    statute.

7
FAR 37.104 Personal Service
  • Personal services occur under a service contract
    when, as a result of (1) the contracts terms or
    (2) the manner of its administration, contractor
    personnel are subject to the relatively
    continuous supervision and control of a
    Government officer or employee.

8
Personal Service Factors
  • (1) Performance on site.
  • (2) Principal tools and equipment furnished by
    the Government.
  • (3) Services are applied directly to the integral
    function or mission.
  • (4) Comparable services are performed using civil
    service personnel.
  • (5) The need for the type of service provided can
    reasonably be expected to last beyond 1year.
  • (6) The inherent nature of the service reasonably
  • requires Government direction in order to
  • adequately protect the Government, retain
    control
  • or personal responsibility.

9
Inherently Government Functions
  • Contractors cannot
  • Control or direct Government personnel,
    administer contracts, or perform inherently
    government functions .
  • Perform functions that require exercise of
    discretion in applying government authority, use
    of judgment in making decisions for the
    Government, and decisions regarding monetary
    transactions and entitlements.

10
FAR 7.5 Examples of IGF
  • (1) The direct conduct of criminal
    investigations.
  • (2) The control of prosecutions and performance
    of adjudicatory functions
  • other than those relating to arbitration or
    other methods of alternative
  • dispute resolution.
  • (3) The command of military forces, especially
    the leadership of military
  • personnel who are members of the combat,
    combat support, or combat
  • service support role.
  • (4) The conduct of foreign relations and the
    determination of foreign policy.
  • (5) The determination of agency policy, such as
    determining the content and
  • application of regulations, among other
    things.
  • (6) The determination of Federal program
    priorities for budget requests.

11
FAR 7.5 More Examples
  • (7) The direction and control of Federal
    employees.
  • (8) The direction and control of intelligence and
    counter-intelligence operations.
  • (9) The selection or non-selection of
    individuals for Federal Government employment,
    including the interviewing of individuals for
    employment.
  • (10) The approval of position descriptions and
    performance standards for Federal employees.
  • (11) The determination of what Government
    property is to be disposed of and on what terms.
  • (12) Limited scope of procurement activities
    (cant determine requirements, approve, award,
    administer, or terminate contracts.
  • (13) (20) Obscure

12
FAR 7.5 authorized functions
  • (1) Budget preparation, workload modeling, fact
    finding, studies and analyses.
  • (2) Reorganization and planning activities.
  • (3) Feasibility studies, strategy options.
  • (4) Develop regulations.
  • (5) Evaluate other contractors performance.
  • (6) Service in support of acquisition planning.
  • (7) Contract management QA.
  • (8) Contract proposal technical evaluation.
  • (9) Develop SOW.
  • (10) (18) obscure
  • (19) Law enforcement not related to investigations

13
Contract Administration
  • US Government Hierarchy
  • Contracting Officer (KO)
  • Contracting Officer Representative (COR)
  • Stakeholders
  • Contractor Hierarchy
  • Contractor management / HR
  • Site supervisor
  • Employees

14
Contracting Officer
  • Only authority to modify or enforce the contract
    terms.
  • Designates COR to assist KO in technical
    monitoring and administration of a contract.
  • A COR is said to be the "eyes and ears" of the
    Contracting Officer.
  • Designates Alternate COR (ACOR) if required to
    provide proper surveillance and oversight.

15
COR duties
  • Perform duties specified by the KO
  • Technical liaison between the KO and Contractor
  • Monitoring the Contractor's performance against
    the contract Specification / SOW / PWS (progress,
    costs, and quality of performance)
  • Communicating potential problems to the KO.
  • Report any deficiencies in contract performance.
  • Document significant actions taken.
  • Review and certify the Contractor's invoices.
  • Identify inconsistencies on performance claimed
    on invoices, and Contractor inefficiencies.
  • Review, inspect, and accept services or
    deliverables when completed.
  • Maintain a COR file in case of COR changeover
    with MFRs (meetings, trips, and conversations
    relating to the contract).
  • Assess and rate the Contractor's performance.

16
COR Limitations
  • In general the COR should ensure the following
    actions do not occur
  • Promising or authorizing additional work
  • Issue stop work orders
  • Authorizing additional Government Furnished
    Property (GFP) outside of the contract.
  • Disclosing source selection or proprietary
    information.
  • Allowing or authorizing personal services. The
    COR shall maintain an arms-length relationship
    with Contractor employees.
  • Interfering with Contractor's personnel practices
    or organized labor.
  • Directly or indirectly changing pricing, cost,
    fee, quantities, quality, scope, schedule, or
    other terms/conditions or modify the contract.
  • Personal services contract implies direct
    supervision and control of Contractor employees
    by Government employees. The COR must maintain
    surveillance, not supervision.

17
Contract Deficiency Reporting
  • Contract Deficiency Reports (CDRs) are used to
    report and resolve identified contract
    deficiencies. (DD1716)
  • Contract deficiencies in requirements include
  • - quality
  • - quantity
  • - delivery
  • Deficiency impacts
  • ? What is the requirement
  • ? What is the deficiencies
  • ? What is the impact.
  • KO tools to address Deficiencies.

18
Government Employee Ethics Rules
  • Bribery -18 USC 201
  • Representation 18 USC 203/205
  • Post Government Employment 18 USC 207
  • Conflicts of Interest 18 USC 208
  • Supplementation of Salary 18 USC 209
  • Standards of Conduct -5 CFR 2635
  • Joint Ethics Regulation DOD 5500.7-R

19
Contractor Ethics Rules
  • Federal Acquisition Regulation (FAR)
  • 3.1 -Procurement integrity
  • 3.2 -Contractor gratuities to Government
    personnel
  • 3.10 -Contractor Ethics Programs
  • 9.1 -Responsible contractors
  • 9.4 -Debarment/Suspension
  • 9.5 -Organizational and Consultant COI
  • 37.104 -Personal Services Contracts
  • DFARS 203.70 Contractor Standards of Conduct

20
What Conflict of Interest Laws Apply?
Selected Laws and Regulations That Address Personal Conflicts of Interest Applicable to federal employees? Applicable to DOD KTR employees?
Bribery, kickback, other graft Yes Yes
Participating in matter affecting personal financial interest Yes No
Avoiding appearance of partiality when performing duties Yes No
Disclosing financial interests Yes No
Accepting travel and gifts Yes No
Using nonpublic info for personal gain Yes No
Future employment contact Yes No
Misusing position to provide preferential treatment to a private interest Yes No
21
Organizational Conflicts of Interest
  • Organizational conflict of interest arises
    because of other activities or relationships with
    other persons.
  • OCI occurs when a person is (potentially) unable
    to render impartial assistance or advice to the
    Government, a person's objectivity in performing
    the contract work is or might be otherwise
    impaired, or a person has an unfair competitive
    advantage.
  • FAR 9.504 requires Contracting Officers to
    analyze planned acquisitions in order to
  • Identify and evaluate potential organizational
    conflicts of interest as early in the acquisition
    process as possible and
  • Avoid, neutralize, or mitigate significant
    potential conflicts
  • before contract award

22
Contractor Ethics Programs FAR 3.10
  • Mandatory requirements for contractor Codes of
    Conduct, ethics training and internal control
    systems.
  • Objectives Program suitable to the size of the
    company and extent of its involvement in
    Government contracting Facilitate timely
    discovery and disclosure of improper conduct in
    connection with Government contracts Ensure
    corrective measures are promptly instituted and
    carried out.
  • Applicable to contracts over 5 million and 120
    days in duration
  • Not applicable to commercial-item contracts and
    contracts performed entirely overseas ...
    portions not applicable to small businesses

23
Contractor Ethics Programs FAR 3.10
  • Contractor self-reporting requirements
  • To avoid suspension or debarment, all federal
    contractors must disclose credible evidence of
  • Violations of certain procurement-related
    criminal law involving fraud, conflict of
    interest, bribery, or gratuity violations found
    in Title 18 of the United States Code.
  • False Claims Act violations.
  • Significant contractor overpayments.
  • Suspension/debarment disclosure obligation
    creates an three-year examination requirement for
    all federal contractors.
  • Effective date of December 12, 2008.
  • Disclosure is required for three years after
    final contract
  • payment. In order to comply, contractors
    must look now
  • examine contracts closed in the last three
    years and
  • examine currently closing contracts.

24
Processing Notification
  • Notification of possible contractor violation. If
    the contracting officer is notified of possible
    contractor violation of Federal criminal law
    involving fraud, conflict of interest, bribery,
    or gratuity violations found in Title 18 U.S.C.
    or a violation of the civil False Claims Act, the
    contracting officer shall
  • (1) Coordinate the matter with the agency Office
    of the Inspector General or
  • (2) Take action in accordance with agency
    procedures

25
Time Management
  • Contractor personnel not subject to Government
  • time-keeping, leave or pass policies.
  • Government employees may not direct work, such as
    changing reporting times, working hours or
    overtime.
  • Contractor employees may participate in office
  • events on their own time or on contractor
  • time, not on time charged to the contract.

26
Use of Government Resources
  • Contractor employees may not use
  • Government resources unless provided for in the
    contract. Use must be consistent with GFP
    clauses, including hours, duration and return.
  • Installation commanders have discretion to allow
    contractor employees on the installation limited
    use of military MWR activities (restaurants, gym,
    golf course).

27
Training
  • Government-provided Training is allowed if
  • Required by the contract or otherwise
    appropriate.
  • Does not create appearance of favoring a
    contractor.
  • Government determines whether training necessary
    and a reasonable expense under its
    appropriation.
  • Contractor-provided Training
  • Gift rules apply. Examine accepting as gift
  • to agency or Widely Attended Gathering.

28
Unofficial and NFE Events
  • Unofficial Events -Contractor employees may pay
    their share and participate on their own or
    company time not charged to the contract.
  • Widely Attended Gatherings
  • Government employees may attend for free
  • if approved by Department designee.
  • Considered a personal gift.
  • Government personnel can speak or participate .
  • Considered neither a gift to agency or person.

29
Charitable Fundraising
  • Contractor personnel cannot solicit
  • Government personnel and vice versa!
  • Approved official fundraising consist of CFC
  • and certain service-related, such as AER, Navy
    Mutual Aid, AFA, etc.
  • Contractor personnel can donate, but
  • should not be solicited.

30
Political Activities
  • Government personnel are prohibited from
    conducting political activities in the workplace
    and from engaging in some political activity.
  • Contractor employees are not bound by same rules.
    Contracts should prohibit Contractor employee
    political activities in the workplace.
  • Government site regulations prohibit
  • political posters, signs and activities.

31
Awards
  • Contractors have their own awards and bonus
    programs.
  • Government may provide honorary awards to
    private citizens recognizing contributions to DoD
    mission.
  • Contractors not eligible unless the
    contribution is substantially beyond that
    specified or implied within the terms of the
    contract establishing the relationship, or the
    recognition is clearly in the public interest
    DoD 1400.25-M.
  • Always coordinate proposed honorary award
  • with contracting officer.

32
Transportation Government Vehicles
  • Contractor employees may use shuttle bus systems
    when conducting official defense business.
  • Contractor personnel may not be issued
    Invitational Travel Orders. All travel should be
    priced and included in the contract. See JTR
    Appendix E, Part I, D and FAR 31.205-46.
    Government contractors are not eligible under any
    circumstances for city pair airfares.

33
Transportation Contractor Vehicles
  • Transportation in contractor vehicles is
    considered a gift to the person or to the agency
  • 5 CFR 2635.204
  • 31 USC 1353
  • Rideshare
  • Car/Van Pools

34
Gifts - Contractors to Government Personnel
  • The Contractor is a prohibited source and so
    are contractor employees.
  • Government personnel may not accept gifts that
    are either (1) from prohibited sources, or (2)
    given because of their official position.
  • There are exceptions
  • 20/50 rule
  • Modest food/beverages
  • Personal Relationship

35
Gifts- From Government Personnel to Contractors
  • Government personnel can give a gift to a
    Contractor employee. There is no statute or
    regulation prohibiting gifts.
  • Contractors are required to have their own ethics
    programs and training. These rules may (and
    usually do) prohibit gifts.
  • Ask contractor employees supervisor.

36
Switching Sides - Contractor Personnel Moving to
Government
  • No preferential treatment in hiring process
  • May be disqualified from working on some matters
    if
  • Received extraordinary payment or
  • Hold financial interest (i.e., retirement
    benefits or stocks)
  • with prior employer.
  • An extraordinary payment is any item, including
    cash or investment interest, exceeding 10,000
    based on a determination made after it
  • became known that the employee was being
    considered for or has accepted
  • a Government position, and other than pursuant to
    the former
  • employers established compensation, partnership,
    or benefits
  • program.

37
  • Questions??
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