Presentation on theme: "Government and Contractor Employee Interaction:"— Presentation transcript:
1 Government and Contractor Employee Interaction: Appropriate and Effective Interaction with Our AFSPC Mission PartnersHQ AFSPC/MSK HQ AFSPC/JAQDSN: DSN
2 Overview Introduction The Basics Why We’re Learning This, The Facts, The Rules, and The RisksThe BasicsPersonal/Non-Personal Services, Inherently Governmental, Contractor IDsTheory Meets Practice: Specific SituationsProtecting Sensitive InformationEmployee morale, Gifts, Travel, Rewards, ReservistsSpecific ScenariosConflict of InterestDo’s and Don’ts
4 What has changed?Contractor employees have become a large part of the DoD missionMany of these positions were outsourced to private companies at a lower cost.Contractors have become our mission partners.Service ContractsIn the DoD…816,00071%(% of all Federal Contracts)Federal Employees630,00051%1995200119841996
5 What has changed? 1941- World War II 1960 1942 most services were performed by Government personnelVietnam through Gulf WarGovernment saved resources and funds by contracting out non-essential functionsAfghanistan and Iraq – Global War on Terrorism (GWOT)Government stands “shoulder-to-shoulder with Contractor personnel” (Deidre Lee, April 2004)19421960-19901995-2005
6 Facts, Rules and RisksFACT: The Federal Government is reliant on support contractors – and for more than just administrative or technical support.FACT: For mission success, government employees must understand the government/contractor relationship.Government employees must understand the rules and recognize that risks.As the federal government becomes increasingly reliant on support contractors to perform the mission, it is important for government employees to understand the nature of the relationship between the government and the contractor as well as individual contractor personnel. The desire to treat the contractor as part of the team is understandable, but government employees must understand the potential risks they impose on the government and contractor when they inform a contractor that it is acceptable for contractor personnel to attend the office picnic or participate in “Sports Day” and still bill those hours to the contract. This facet of the government-contractor relationship is particularly important for cost/time and material (or labor hour) contracts.ust as different rules apply to AF Civilians and military, so too, contractors abide by a different set of rules. The government employee must understand these rules and recognize that the contractor presence in the workplace may create certain issues. The reality is that contractor personnel are not civil servants who are hired, fired, supervised or rewarded by the government. They are employees of a contractor, subject to the terms and conditions of their individual contracts with their employer and with the applicable terms and conditions of their employer’s contract with the government. They work billable hours (cost contracts), providing a capability, which must be tied to the contract work statements in the contracts with the government. The focus of these guidelines is to provide government employees an understanding of the laws and rules and how they apply to various situations that may arise within the government-contractor relationship.This presentation aims to mitigate the risks by providing government employees an understanding of the laws and rules in the government-contractor relationship.
7 Facts, Rules and RisksGovernment, including uniformed, civilian and contractor personnel, are “all on a team” providing the unique mission support to defend this nation.However, different standards apply to the various members of the team. These are the rules for government employees:“Each [government] employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the federal government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.” [5 CFR : DOD R, Chapter 2, Section – also known as the Joint Ethics Regulation]We are all on a team providing the operator/user a capability to defend this nation; however, different standards apply to the various members of the team. Just as contractor personnel are legally bound to a standard (i.e., the employment agreement with his/her employer and the terms and conditions of the respective contract), the government employee is legally bound to a different standard:“Each [government] employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the federal government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.” [5 CFR : DOD R, Chapter 2, Section – also known as the Joint Ethics Regulation]
8 Facts, Rules and RisksInappropriate gov’t/contractor relationships may cause:Contractors to “over-offer” in order to generate businessGovernment employee to inadvertently commit the GovernmentEmbarrassment to Commands during a ratificationLegal implications, to include lawsuitsIMPACT TO MISSION resulting from misused funds and wasted resources on ratifications or disciplinary actionp.s. This symbol in this presentation denotes a key pointUniformed and civil service employees must keep an “arms length” relationship with contractor employees.The APPEARANCE of inappropriate behavior is the same as the behavior itself. Perception can be reality.
10 Personal vs. Non-Personal Services What are “Personal Services”?Per FAR Personal services contracts are characterized by the employer-employee relationship created between the Government and the contractor's personnel.Obtaining personal services by contract, rather than by direct civilian or military hire, circumvents the personnel laws and is subject to stringent limitations.What are “Non-Personal Services”?A non-personal services contract is a contract under which the personnel providing the services are not subject to the supervision and control usually prevailing in relationships between the government and its employees. The company, not the individual, is hired to perform.One area of the government-contractor relationship that causes the most consternation is the issue of the personal services contract. A personal services contract is characterized by the employer-employee relationship, and such employees are normally obtained by direct hire under competitive appointment or other procedures required by the civil service laws. Personal services contracts trigger certain rights and responsibilities, including payment of benefits, tax withholding and conflicts of interest statutes. Obtaining personal services by contract, rather than by direct hire, circumvents those laws unless Congress has specifically authorized acquisition of the services [5 USC 3109 and FAR Part ].
11 Personal vs. Non-Personal Services What’s the difference?The difference between government employees and contractor personnel is control. Under a non-personal services contract, a contractor – not the government customer – directs its employees and dictates its employees’ compensation, benefits and rewards.“Control” is the means and manner of a worker’s performance, extent of supervision and direction, type of work and skills required, and compensation.The government hires a contractor for the work products, not for the individual contractor employee.Personal Services: an employer-employee relationship through practice or appearanceExamples:Determining who should perform contract tasks or how they should be donePressuring/influencing contractor to use “favorite” employees, or insist on particular personnel actionsUse government and contractor personnel interchangeablySupervising contractor employeesRating individual contractor employee performanceRequire “out of scope” work or “inherently governmental functions.” Required services are specified in the contract -- there are no “and other duties as assigned.”Government personnel are employees of the government. They are hired, fired, supervised and rewarded by the government.Contractor personnel are employees of a contractor, and are subject to:…the terms and conditions of their individual contracts with their employer and…the applicable terms and conditions of their employer’s contract with the government.Contractor employees work billable hours to provide a capability, which must be tied to the contract work statement.Many of the contractor employees working side by side with government employees were once government employees themselves (e.g. retired military or former civil servants). It is important that government employees recognize that these individuals’ status has changed and, therefore, so have the rules applied to that employee.
12 Inherently Governmental Functions Only government officials can legally perform “inherently governmental functions”, which are defined as:Functions that are so intimately related to public interest as to mandate performance by government employees, such as:Direction/control of federal employeesDetermination of budget policy, guidance and strategyResource allocation or program management dutiesApproval of contractual documents or administering contractsObligating Congressional authorized fundingThe Details of Allowable contractor costs.In cost-type contracts (including labor hour contracts), in order for a contractor to receive payment from the government for its employees’ time, the cost must be an allowable cost under the contract. An allowable cost is one that is “allowed” to be charged IAW FAR Costs must be both allowable and allocable. A cost is allocable if it is assignable or chargeable to one or more contract cost objectives. [FAR ] Normally a service contract does not identify the task of participation in morale-building activities during business hours—so the contractor would not get paid for such activities. Simply making such tasks part of the work requirements does not resolve the issue. Bona Fide need, proper purpose of appropriated funds and anti-deficiency issues must carefully be considered before adding such a requirement to the contract. Contractor personnel (excluding fixed-price contracts) work billable hours tied to the contract performance requirements. They are not paid to attend morale building events and do not get paid time-off for “down days.” Any compensation or payment for work not accomplished is a violation of federal statute, criminally punishable as a false claim under 31 USC Submitting a claim to the government for payment of time not worked is a violation of the law regarding false or fraudulent claims. Additionally, if you tell a contractor to submit a false claim, and the contractor does so, you could both be charged with conspiracy to defraud the United States. Contractor personnel can attend appropriate mission-related off-sites, planning sessions, program management reviews, or other program-related activities. However, adding a requirement in the contract for the contractor to support “team building” activities (sports day, office picnics, golf outings, holiday parties or other like functions) is unacceptable.In general, while the government may elect to pay contractor personnel for participation in training or dispute resolution discussions when required by the contract, the government cannot pay the contractor for entertainment costs. [FAR ] Reimbursement of contractor morale and welfare expenses is also limited. [FAR ] The government should be cautious about inviting contractor personnel to leave their place of employment for recreational events because it creates the expectation of payment. Even when the contractor knows that it will not be paid for services not delivered during the absence of its employees, the contractor may feel obligated to have its employees attend.
13 Who’s Who in the Workplace: Contractor ID Contractor identification is key to avoiding problemsContractor personnel must wear obvious identification. Nearly all service contracts specifically require contractor personnel to wear conspicuous badges. If you don’t know, ASK!Identify contractors in telephone conversations, meetings and all written correspondence, including (per AFI , paragraph 5.3).Many contractor personnel are retired military/civil service employees.Both government employees and contractors must realize their professional relationship has changed - especially when dealing with sensitive or “FOUO” information.
14 Contractor Identification Unidentified contractors increase risk of:Unauthorized advance release of procurement information - giving unfair advantage to one or more contractorsDisclosure of source selection information, such as source selection plans, evaluation factors, exact funding amounts, proposals, and proposal evaluationsConversion to improper personal services contracts where contractor personnel are managed as though they are government employeesRisk of unauthorized work direction (mistaken for Gov’t employee)Performance of inherently governmental functions by contractors, such asProgram Element Monitor (PEM) duties,Program Management duties, andother resource allocation and/or decision-makingImpartiality is required, with favoritism for noneOrganizational Conflicts of InterestMust eliminate unfair competitive advantages amongst contractsMust ensure objective performanceEnsure timely delivery/performance IAW contractEnsure performance required is obtainedPreserve government rightsCannot waive rights unless consideration obtainedResolve performance issues through COR/COTR, task monitor, and Contracting Officer
15 Why It’s Important To You Administrative sanctionsCivil sanctionsCriminal sanctions
16 Ramifications That May Be Triggered Misuse of Appropriations (Anti-deficiency Act violations)Trade Secrets Act ViolationsProcurement Integrity Act ViolationsStandards of Conduct ViolationsConflicts of InterestGift rulesPreferential treatmentUnauthorized commitmentsEndorsementsPreserve and protect government property/resourcesAdditional Potential Ramifications:Invoices for payment & contract claimsBid protestsSocial Security & IRS reclassificationLiability IssuesClaims for Payment of Employee BenefitsWorkers compensationUnemployment benefitsRetirement benefitsClaims for Interference of ContractsEEO complaints w/Government liability
17 (and other day-to-day situations) Theory Meets Practice(and other day-to-day situations)
18 Protecting Sensitive Information Because contractor personnel have access to our offices, we must protect sensitive information.Hallways, bathrooms, cafeterias, break rooms and even the “cube farm” are not secure areas for discussing sensitive informationKnow who is in the room when discussing sensitive information (including meetings)Before providing information to a contractor to develop visual aids, create a database, provide consultations, or even repair the hard drive on our computer, we must ensure that the contractor is authorized access to the informationThe results of unauthorized disclosure include:Causing a competitive advantage, risking protests and/or possible subsequent litigationViolations of the Procurement Integrity Act [41 USC 423] and the Trade Secrets Act [18 USC 1905] leading to criminal prosecutionThe increasing presence of contractors in the federal workplace has raised concerns in the area of physical security and the allowability of contractor personnel performing end-of-day security checks. Several questions arise in the area of physical security and its application to contractor personnel:(a) Is it legally permissible for contractors to perform after hours security checks?(b) Does the contractor assume total responsibility/liability for this activity?(c) Is it permissible to add a requirement to the contractor’s statement of work (SOW) requiring the contractor to perform end-of-day security checks?Many organizations have contractor personnel from several different companies, all working in close proximity. Many of these companies are in direct competition for support contracts. If access to any classified, sensitive unclassified or company proprietary information gets into the wrong hands and one company gains unfair advantage over another, it could result in legal action. AFI , paragraph 5.2.4, mandates that contractor access be limited to “contract specific information.” Therefore, requiring offices must ensure that the contract’s scope clearly extends to the daily support being requested and the contractor performance. This is particularly important when competing contractors occupy the same work area and one could be responsible for the after-hours check of the other.
19 Protecting Sensitive Information DoD policy identifies information that is not releasable, including:Classified informationPlanning, Programming, Budgeting and Execution (PPBE) informationContractor proprietary informationUnsolicited proposal informationInternal agency communicationsSource selection information, andInformation that would create an unfair competitive advantageMore specific rules on disclosure are summarized as follows: (a) Non-public information. Employees may not disclose “non-public information” to further the private interest of any individual, company or organization. [5 CFR (a)] “Non-public information” means information that the employee gains by reason of federal employment and that he or she knows (or reasonably should know) has not been made available to the general public. [5 CFR (b)] (b) Advance procurement information. “A high level of business security must be maintained in order to preserve the integrity of the acquisition process.” [FAR 5.401(a)] Employees participating in the acquisition process may not disclose: (a) information on plans that would provide undue or discriminatory advantage to private or personal interests, (b) information received in confidence from an offeror, (c) information otherwise requiring protection under the Freedom of Information Act or Privacy Act, or (d) information pertaining to internal agency communications (e.g., technical reviews, contracting authority or other reasons, or recommendations referring thereto). [FAR 5.401(b) & (c)] (c) Releasing information about a procurement before solicitation is issued. “Information concerning proposed acquisitions shall not be released outside the government before solicitation except for presolicitation notices IAW FAR or FAR , or long-range acquisition estimates IAW FAR 5.404, or synopses IAW FAR Within the government, such information shall be restricted to those having a legitimate interest. Releases of information shall be made (a) to all prospective bidders, and (b) as nearly as possible at the same time, so that one prospective bidder shall not be given unfair advantage over another.” [FAR (a)](d) Information related to a source selection. Employees may not disclose contractor bid or proposal information or source selection information. [41 USC 423(a), (f)(1), (f)(2); FAR (a)] [Note: This is information related to a specific source selection.](e) Information Protected Under the Trade Secrets Act. The Trade Secrets Act states that, unless authorized by law, an employee may not publish or disclose any information (a) that comes to him/her in the course of his/her employment or official duties, and (b) that concerns or relates to the trade secrets, processes, operations, style of work or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association. [18 USC 1905](f) Intelligence. Releasing intelligence to contractors must comply with AFI , Release of Intelligence to US Contractors, 1 April 1999.
20 Protecting Sensitive Information Guidelines for Protecting Sensitive InformationWhen you are in a meeting in which advanced acquisition or sensitive information is to be discussed, ensure you know who the participants are. If in doubt, ask!Do not discuss sensitive information in areas that are not secure (e.g., bathrooms, hallways, cafeterias). Do not leave sensitive information where contractor personnel may observe it (i.e., your desk or work area).Proprietary information is releasable to a contractor only if protected by appropriate contract clauses and non-disclosure agreements.Do not place contractor personnel in a position of liability for property over which they have no contractual authority, accountability or control.Do not delegate responsibility for end-of-day security checks to contractor personnel (unless their contract specifically allows it).Consult your legal counsel if you have questions about releasing sensitive information. An attorney’s advice is confidential and privileged.Do not delegate responsibility for end-of-day security checks to contractor personnel (unless their contract specifically allows it). Keep in mind that many times competing contractors occupy the same work area when contractually requiring one contractor to perform end-of-day security checks over another contractor. Under these circumstances, a contracting officer must exercise extreme caution when placing an end-of-day security check requirement in the contract.
22 Specific Situations 1. Inclement Weather Dismissals Government does not determine contractor leave policyGovernment generally does not compensate contractor for non-performanceContracting Officer will refer to the contract terms and conditions that address government down time2. Combined Federal CampaignCannot solicit contractor employees directly or indirectlyMay accept voluntary contributions of checks made to CFCPerforming as CFC rep--is it in the contract?
23 Specific Situations 3. Birthday clubs & gift exchanges Cannot solicitNo cash or investmentsGift rules apply4. Use of Air Force SealContractors may NOT use Agency Name, Seal or any “colorable imitation of such words, initials in seals” in connection with merchandise, retail products, impersonation, solicitation, or commercial activity if reasonably calculated to convey impression that such use is approved, endorsed, or authorized (10 USC 445).
24 Specific Situations5. Activated Reservists in AFSPC may be contractors in their civilian life.It is important to ensure that reservists do not have a conflict of interest between their reserve duty and their civilian careers (with defense contractors, for example). Be aware that having a reservist work on FOUO or sensitive projects or information may not only be a risk to the government, but puts the reservists in a personal CoI situation.
25 Assignment of Reservists A reservist may not be assigned to duties involving access to:Information that would help his or her private employer in an ongoing or future source selection, ORProprietary or confidential information about the competitors of his or her private employer. [JER para ]
26 Assignment of Reservists Problem AvoidanceAssignment of ReservistsCommanders have an affirmative obligation under the JER § to refrain from assigning reservists to perform duties that could enable them to obtain non-public information or gain unfair advantage over competitors, or which present an actual or apparent conflict of interest.Commanders must screen reservists to ensure that no actual or apparent conflict exists between their private interests and their duty assignment.Reservists have an affirmative obligation to disclose material facts in this regard. However, receiving commands cannot assume compliance and must independently screen incoming personnel to avoid conflicts of interest.Accomplish “screening document” with review annually/on change of circumstances; constant surveillance
27 Assignment of Reservists Problem AvoidanceScreening document should include (at minimum):Civilian employer of the reservist, location, job title, phone number;Duties and responsibilities of the reservist with his/her civilian employer;Government contracts held by the reservists civilian employer, as well as any pending or potential contracts;Reserve assignment and job responsibilities (include office symbol);Whether the reservist is being mobilized or involuntarily ordered to active duty;Whether the reservist will be performing duty relating to contractual actions (and, if so, the nature of the duty); andThe reservist’s supervisor’s name, date and an affirmative (signed) statement that a conflict of interest analysis has been performed.
28 Disclosure of Non-Public Information Assignment of ReservistsDisclosure of Non-Public InformationFederal employees, including reservists, may not disclose non-public information:To further their own private interests, ORTo further the private interests of another (such as their private employer). [5 CFR ]“Non-public information” means information the employee gains by reason of Federal employment, and that he or she knows (or reasonably should know) has not been made available to the general public.
29 Be aware of whom sensitive information is sent to! Specific SituationsBottom Line:Be aware of whom sensitive information is sent to!
30 Specific Situations: Scenario #1 Bill is a retired GS-12. He now is a contractor employee working for ACME Engineering Services in support of an AFSPC A1 mission system. The A1 mission system team includes 100 active-duty and civilian personnel, and 15 support contractors. Each quarter the entire team has an afternoon off-site or picnic to build team unity and morale.Question:As a member of the A1 Program team, can Bill attend the picnic?Answer:
31 Specific Situations: Scenario #1 No, Bill cannot normally attend the picnic.It is up to Bill’s employer, ACME Engineering, to decide whether Bill can have the afternoon off to attend the picnic.Government officials are not authorized to grant “administrative leave” or expend government resources to compensate contractor personnel to attend government-sanctioned morale building activities (e.g., picnics, golf outings, holiday parties, sports day events, fitness time).Individual contractor personnel time off, and the nature of the time off (e.g., leave, Personal day, administrative absence) are between the contractor and its employees. When a contractor’s employee is absent, the contractor cannot bill for services not delivered. The contractor may also have concerns about issues such as contract schedules, delivery dates, and other matters. Accordingly, the contractor must decide if, and under what conditions, its employees may be absent.Holiday time off for contractor personnel is governed by the terms and conditions of the specific contract. Keep in mind that contractor personnel are not government employees, so if the President of the United States declares a federal holiday (or any other time off) that is not addressed in the contract, that day is not a holiday for contractor personnel. If the government office is closed on that day, then contractor personnel should seek appropriate guidance on duty location from his/her contractor supervisor. The contractor supervisor will then work with the government contracting officer to determine the appropriate guidelines and contractor personnel status.Whether or not contractors can participate depends on if the activity official sanctioned? are appropriated funds being used?if yes, is there statutory authority for providing the same to contractors?if no, is the Government “allowing” participation?is the activity within the scope of the contract? contractor employee time is government resource; gov't must ensure that requirements of contract are met; gov't must be cautious about creating expectation of payment; gov't should not encourage “non-performance” of contractBottom Line: The morale of the contractor employees is the responsibility of the contractor.
32 Specific Situations: Scenario #2 Margaret works for ACME Telecommunications and serves as a technical advisor on and Advisory and Assistance (A&AS) Contract in AFSPC/MS. Margaret also was an NCAA Volleyball player at UMASS. The Peterson AFB Sports Day is in two weeks and MS could really use Margaret on their co-ed volleyball team.Question:Could Margaret play for the MS Volleyball squad at Sports Day?Answer:
33 Specific Situations: Scenario #2 No. Like Bill, Margaret cannot participate in morale building activities.Margaret's employer, ACME Engineering, not the government, may decide whether she can participate.
34 Specific Situations: Scenario #3 Dr. X Consulting and Engineering Services offers to provide free consulting services to support the requirements development of the AFSPC Potato Launcher (PL1) program. The company VP offers to provide two weeks consulting services from his “top people” to support the PL1 Program Manager.QuestionCan the program manager accept the service?Answer:
35 Specific Situations: Scenario #3 No. Accepting a free service constitutes a violation of the law against accepting voluntary services (31 USC 1342) except under limited authority (10 USC 1588)When H&R Block offers to check your old tax returns for free…they are looking for influence – just like Dr. X.Accepting a gift of training from a prohibited source (such as a contractor) is generally prohibited under 5 CFR 2635 Subpart B. There are some statutory and regulatory exceptions to these prohibitions that may permit government employees to take advantage of free contractor training. When offered a gift of training, a government employee’s first step should be to contact his/her local ethics counselor. The counselor will determine if a particular exception would permit the employee to accept the training. If an exception applies, the counselor must then determine if any appearance issues would preclude accepting the gift. If the counselor determines that an exception applies and no substantial appearance of a conflict of interest arises from accepting the gift, then the counselor may advise an employee that he or she may accept the gift of free training.Government employees should be aware that training provided by a contractor in accordance with a statement of work, or that is intended to facilitate the use of products or services that have been provided under a government contract, is not considered to be a “gift.” Government employees may attend such training.
36 Scenario #4SituationMary works for ABC Command Support. She has been doing an outstanding job in her position with ABC. As the government employee she supports, you want to recognize her for her above and beyond performance.Question:Can you give her a “Letter of Appreciation”?Answer:
37 Rewards and Recognition of Contractors No, you cannot give Mary a letter of appreciation.DoD policy is to not recognize or endorse private citizens or private entities that have a commercial or profit-making relationship with the Department, unless the contribution is substantially beyond that specified in the contract (DOD Manual and AFI , paragraph 1.9)It’s the contractor’s duty to incentivize its employees and to increase morale and productivity. Any awards for good performance must be tied to the contract, approved by the government program manager and Contracting Officer, and sent to the contractor, not the contractor employee.Providing recognition of performance may be counter to the overall performance of the contract – other areas may be less than stellar.Frequently, the subject of what can be done to recognize and award contractor personnel comes up. The ability to provide awards to military and civilian employees is authorized by statute and the discretionary authority of the organizational commander [10 USC Chapter 857 & 5 USC Subpart C]. No such statutory authority covers contractor personnel. The regulations that authorize awards to government employees do not apply to contractor personnel. DOD Manual and AFI , paragraph 1.9 specifically indicate that it is the DoD policy to not recognize private citizens or private entities that have a commercial or profit making relationship with the Department, unless the contribution is substantially beyond that specified or implied in the terms of the contract establishing the relationship, or the recognition is in the public interest. Even in such an extreme situation, recognition is honorary only (emphasis is provided in AFI ). If individual contractor personnel have performed exceptionally well or made a contribution which significantly exceeds the terms of the contract, the government may acknowledge that contribution by a letter to the individual’s company. This “letter of appreciation” should be coordinated with the cognizant contracting officer before sending to the contractor who will then present it to its contractor employee.In addition, numerous contractual and legal reasons limit the recognition of individual contract personnel. These include issues involving contract administration and past performance evaluations; statutory limitations on personal services contracts, and the need to clearly delineate contractor personnel and government employee roles; limitations under the Joint Ethics Regulations and other DoD guidance; the terms and conditions of contracts and the nature of the services the government is buying; and specific Air Force guidance found in AFI In order to fully understand this issue, we must review the relationship between the contractor and the government and the appropriate mechanisms available to reward contractor performance.
38 Contractor Travel in Government Vehicles Unless specified in the contract, contractor personnel are not allowed to use government vehiclesException (FAR & ) only if:number of vehicles required is predictable and constantproposed contract will bear entire cost of vehicle programvehicles will be used only on specific contract approvedprospective contractors do not or would not be expected to have existing and continuing capability to provide vehicles from their own resourcessubstantial savings are expectedContractor may use shuttle bus between installationsContractor may be a passenger in GOVif no appearance of favoritismGovernment may issue letter that contractor is performing government business IAW JTR/FTRGOVERNMENT EMPLOYEES MAY NOT RIDE IN CONTRACTOR VEHICLES EXCEPT IN VERY LIMITED CIRCUMSTANCES!Gov't may issue notice of official travel on Agency letterheadNot eligible for City Pair AirfaresNot eligible for Invitational Travel OrdersNot entitled, but may get AMTRACK discountNot entitled, but may get hotel/motel discountNot entitled, but may get car rental discountContractor reimburses employees IAW contractor policyGov't reimburses IAW FTR/JTROCONUS exceptions if emergency or no options
40 Contractor Organizational CoI Cannot award a contract to a contractor that:May be unable to render impartial assistance/adviceHas potential future gain or past involvement in a program, such as:Drafting Statements of WorkEvaluation of competitor’s offersAccess to Government info not available to others (source selection info)Access to competitor info obtained performing a Gov't contract (proprietary data)Any other access that creates a competitive advantageRules apply to officers and employeesMust be real possibility employee will gain or loss as a resultRules enable employees to be objective when carrying out their dutiesHonesty is not a defenseFailure to recognize OCIFailure to take steps to mitigateRESULTS IN:improper procurement, even if good faithBottom Line: We must prevent the existence of conflicting roles that may bias a contractor’s judgmentMitigation may include prohibition from bidding
41 Government Employee CoI RULE: You cannot make decisions, give advice, or make recommendations pertaining to any matter IF you (or those imputed to you) have a financial interestIMPUTED to YOU:Spouse, Minor children, Members of household, Prospective employersOrganizationsIF you currently or w/n past year served as employee, trustee, partner, consultant, or employeeactive participantFINANCIAL INTEREST includes:Seeking or negotiating for non-federal employmentWorking for associated profit or non-profit entitiesOutside job/business activitiesOwnership in a companyInvestments, stocks, bonds--exception if: < $15,000; < $50,000 in sector; Independently managed, widely-diversified (i.e. Mutual Fund)
42 Conflicts Of Interest: Remedial Actions Contractor:Disqualification from AcquisitionGovernment Employee:Divestiture of company stockWaiver (after Determination)Reassignment or Transfer to other programResignation from outside position if “moonlighting”**Other restrictions also apply, seek advice from ethics counselor
44 Do’s1. Remember: Contractor personnel are not government employees – different rules apply.2. Ensure contractor personnel wear distinctive badges and can be easily identified - including correspondence and on the telephone.3. Respect the employer-employee relationship between contractors and their employees.Protect intellectual property rights when contractor work products are created or shared in the federal workplace.Identify possible conflicts by contractor personnel to include violations of the law (including but not limited to Procurement Integrity statutes and regulations). Be sensitive to inappropriate appearances created by close relationships between government employees and contractor personnel.As necessary, seek assistance from legal counsel in resolving these inappropriate relationships.Intellectual Property Rights:The terms of the specific contract will determine the contractor’s rights, but frequently the contractor will legally be able to commercially exploit software or inventions it develops in the federal workplace.
45 Do’sSafeguard sensitive information, including proprietary, Privacy Act and source selection information.Clearly describe all contract taskings and ensure they are in-scope.Maintain contact with on-site contractor personnel in order to assess performance and ascertain progress or delivery status. In an IPT environment, closer working relationships are needed; however, be careful to ensure only the contractor’s task leader assigns taskings to individual contractor personnel.“Zoom out” - Look at your situation from the contractor and contractor employee perspective.- Are you putting the employee in a difficult situation by asking for performance above or outside the contract?- Does your interaction with contractor personnel give the perception of an favoritism?11. Be aware of foreign disclosure limitations, including when working with our international partners (there are some things that a contractor cannot disclose to a foreign national, including members of Canadian Air Force working in the building, without a license).Protection of Sensitive Information:Release of certain types of information to unauthorized contractor personnel to analyze, create charts and graphs, enter into databases, etc., could violate the Procurement Integrity Act, the Trade Secrets Act, the Privacy Act, or other laws or regulations that could subject the releaser to civil and/or criminal penalties including mandatory removal.
46 Don’tsDon't become involved in the operations and policies of the contractor such as:Selecting, recruiting, hiring or firing contractor personnelDirecting, scheduling, or critiquing individual contractor tasks on a continuous basisSupervising contractor personnelPressuring the contractor to use “favorite” personnel, or insisting on particular personnel actionsDon't use government and contractor personnel interchangeably.Don't require “out of scope” work, personal services, or “inherently governmental functions.” - there are no “and other duties as assigned”Don't give the incumbent contractor unfair competitive advantage by including its personnel in meetings to discuss aspects of the re-competition, or by allowing access to planning information.Don't solicit or accept gifts from contractor personnel (other than coffee, small food items, etc. IAW Ethics Regulations).Don’t Direct Out of Scope workDon’t assume a service is automatically “in the contract”. Directing contractor personnel to perform outside the contract can cause problems for the government by increasing costs, the contactor by forcing them to file a claim, and the contractor employee by putting them in a position where they don’t want to say “no” to their customer. When we contract, we give up an element of control and flexibility.Accepting GiftsBecause they work for a contractor, they are “prohibited sources” and the rules for giving and getting gifts are very different than the rules for gifts between employees. One major difference is that government employees may not solicit contractors and their personnel to provide or contribute to gifts such as a retirement gift for a government employee. In addition, government employees may not solicit Combined Federal Campaign (CFC) contributions from contractor personnel. Before accepting any gift from a contractor, whether from the company as an organization or a specific employee, you should consult with the Ethics Advisor at the legal office.
47 Don’tsDo not encourage contractor personnel to leave their workplace to attend a morale building activity, ask them to volunteer to organize morale building events, or participate in office gift-giving, funds, etc.Do not give only one contractor AUTHORIZED/LEGALLY RELEASABLE information that may be of commercial value. If you share it with one, you must share it with all. Don’t Direct Out of Scope workDon’t assume a service is automatically “in the contract”. Directing contractor personnel to perform outside the contract can cause problems for the government by increasing costs, the contactor by forcing them to file a claim, and the contractor employee by putting them in a position where they don’t want to say “no” to their customer. When we contract, we give up an element of control and flexibility.Accepting GiftsBecause they work for a contractor, they are “prohibited sources” and the rules for giving and getting gifts are very different than the rules for gifts between employees. One major difference is that government employees may not solicit contractors and their personnel to provide or contribute to gifts such as a retirement gift for a government employee. In addition, government employees may not solicit Combined Federal Campaign (CFC) contributions from contractor personnel. Before accepting any gift from a contractor, whether from the company as an organization or a specific employee, you should consult with the Ethics Advisor at the legal office.
48 Being familiar with the information in this briefing will help you to maintain appropriate relationships with contractor employees. If you find yourself in a situation that is not addressed or you have any doubt as to how to handle a contracting situation, contact contracting activity or HQ AFSPC/JAQ at DSN and ask for clarification
49 QUESTIONS? This briefing may be accessed on the AFSPC/MSK website:
50 ResourcesThe Defense Acquisition University (DAU) has created an on-line course entitled “Ethics in the Era of Partnering.”This guidance is not a substitute for ethics and legal advice. If you have questions or need advice about a specific situation, you should always consult your legal counsel.
51 Thanks to…This presentation and the associated materials were developed from a compilation of information gathered from various sources within the Department of Defense.CONTRIBUTORSWR-ALC/JA and WR-ALC/PK, Enhancing Relations with Support Contractors, undated BriefingAFMC Contracting Guide For The Government- Contractor RelationshipAFMC Contracting (AFMC/PK) Guide to Government-Contractor RelationsSusan J. Harvey, Service Contract Management; No Place For Amateurs, Program Management Magazine, Jan-Feb 02, pp56-7Department of Defense, Ethics Issues in Government-Contractor Teambuilding, 15 Jul 99AFSPC/JA Government-Contractor Interactions.
52 Additional Resources5 CFR Standards of Ethical Conduct for Employees of the Executive BranchBasic Obligation of Public Service5 CFR Definitions regarding gifts5 CFR Exceptions to general ban on gifts5 CFR Use of Nonpublic Information5 CFR Use of Government Property5 CFR 2635 Subpart B Gifts from Outside Sources5 USC Subpart C Awards for Superior Accomplishments5 USC Employment of Experts and Consultants5 USC Acceptance of Contributions, Awards and Other Payments5 USC Receipt and Distribution of Foreign Gifts and Decorations10 USC Chapter 857 Decorations and Awards10 USC General Gift Funds18 USC Disclosure of Confidential Information Generally26 USC Exemption from Tax on Corporations, Certain Trusts, etc.28 USC United States as Defendant28 USC Definitions29 USC Chapter 15 Occupational Safety and Health29 USC Definitions29 USC Duties of Employers and Employees 31 USC 1301(a) The Purpose Statute31 USC 1344(a) Passenger Carrier Use31 USC Acceptance of Travel and Related Expenses from Non-Federal Sources31 USC False Claims41 USC Restrictions on Disclosing and Obtaining Contractor Bid or Proposal Information or Source Selection Information (referred as the Procurement Integrity Law)FAR Federal Acquisition RegulationJER Joint Ethics RegulationOGE “Letter to a Private Organization” Office of Government EthicsDODR R Joint Ethics Regulation