Friday, December 3, 2010

Work that Government Employees May Not Perform for Contractors

Yesterday we discussed the topic of inherently governmental functions and the prohibition against contracting for any services that are considered inherently governmental. There are similar prohibitons on Government personnel performing contractor functions. Now this might surprise some of you who have "hosted" Governmental audit and contract administration personnel - especially when those folks are permanently in residence at contractor locations. There is seemingly no limit to their intrusion into the perogatives of contractor management. But there are limits and its good for contractors to know those limits. Generally, Government employees may not:

  • Supervise contractor employees
  • Stipulate contractor duty hours
  • Require contractor employees to report to them
  • Maintain contractor personnel records/time cards
  • Approve leave for contractor employees
  • Approve bonuses for contractor employees
  • Develop duty rosters including names of contractor employees

As a general rule, Government employees should not be involved in contractors’ personnel decisions. Federal employees’ participation in contractors’ hiring and firing decisions clouds the traditional and appropriate allocation of contract performance and cost risks between the Government and the contractor. That allocation is embedded in the contract (via the federal procurement process, e.g., by the choice of source selection technique, contract type, terms, and conditions).

In rare cases, there might be circumstances where, due to the nature of the services or supplies being procured, a pressing Federal interest in the contractor’s selection of certain employees may call for some Federal officials’ involvement in the hiring decision. In those instances, the risks of violating the prohibitions regarding personal services or inherently governmental functions and of muddying the contractual relationship must be explicitly acknowledged. Then they must be appropriately mitigated, preferably by written communication from the contracting officer that includes the rationale for Federal involvement. An example of a Federal action that would be appropriate in some cases is the contracting officer’s expressing to contractor management that a contractor employee performed poorly in a critical area (e.g., safety or security) and should not continue to be assigned to that area. It would never be appropriate for any Federal official to direct or imply to the contractor that the employee should be terminated.

Government employees, such as procurement contracting officers, administrative contracting officers, contracting officer technical representatives, and auditors must not:

  • Direct a contractor to hire a particular individual (but they may provide the contractor with the names of individuals that are competent)
  • Direct a contractor to fire a particular individual
  • Design work requirements around a single individual

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