2 Learning Objectives 410th COR Training Understand rules for working with ContractorsUnderstand ethical standardsUnderstand prohibitions
3 Working with Contractors in the Federal Workplace 410th COR TrainingWorking with Contractors in the Federal WorkplaceWhy Am I Here?
4 Modern Workplace 410th COR Training Contractors support the mission Contractors are perceived as “partners”The last decade has seen remarkable change, not only in the way Army competes and awards contracts, but also a fundamental change in the role contractors play in supporting the Army’s mission. A widely-held, but inaccurate, view is that contractors are no longer outsiders with whom we deal at arms length. Instead, acquisition reform has encouraged the view that contractors are partners – the one team concept. Although contractors play a key role, they have different loyalties than those of Federal employees. So, there remain fundamental differences between the Government and the contractor, and very definite legal and ethical limitations on the degree to which we may act as “partners.”The following are numbers associated with the changing workplace:72,000 contracts worth over $215B*5.6M contractor personnel worked on Federal contracts**DoD approximately 60% contractor personnel*GSA’s Federal Procurement Data Center**Data from Paul C. Light, The True Size of Government (1996), as of 1996“The lines became too easy to cross, and no one was paying attention. I don't even think most people know where the lines are anymore."The purpose of this training is to re-establish those lines. In many cases, the ethics rules governing your relations with contractor personnel are different from the rules governing your relations with your fellow Government employees. The goal of this training is to enhance your awareness of the differences in these rules.
5 Modern Workplace 410th COR Training But Contractors are NOT Government employeesConflict of interest rules N/A to Contractor employees -- even when:Performing the same/similar work as Government employeesWorking side-by-side with Government employeesThe lines between Federal employees (to include military personnel) and contractor personnel have become blurred. The next three slides are used to emphasize the principles guiding Federal employee conduct and that guiding contractor personnel.
6 COR/Contractor Relationship BLUF 410th COR TrainingCOR/Contractor Relationship BLUFPublic service is a public trustYour duties as a COR are to the GovernmentProfessional friendships are not prohibited…however…no favoritism or preferential treatmentAlways avoid a conflict of interest or appearance of a conflict of interest
7 Traps for the Unwary COR 410th COR TrainingTraps for the Unwary CORCOR is Contracting Officer Representative. The term is found in DFARSThe contract clause found in the DFARS is found at: DFARS Contracting Officer's Representative.As prescribed in , use the following clause: CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991)(a) Definition. “Contracting officer's representative” means an individual designated in accordance with subsection of the Defense Federal Acquisition Regulation Supplement and authorized in writing by the contracting officer to perform specific technical or administrative functions.(b) If the Contracting Officer designates a contracting officer's representative ( COR ), the Contractor will receive a copy of the written designation. It will specify the extent of the COR 's authority to act on behalf of the contracting officer. The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract.The term “COTR” or “COR-T” is means contracting officer technical representative. A COTR differs in that he or she has specialized technical knowledge in overseeing a contract, such as engineers.
8 Information Security 410th COR Training 18 USC 1905 Government employees may not divulge information received in the course of their employment or official dutiesPunitive: fine and/or 1 year in prison
9 Information Security 410th COR Training Do not discuss acquisition or sensitive information:In areas that are not secure (e.g., bathrooms, hallways, DFAC)At a meeting, until you know who is at the meeting(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 employeegains by reason of federal employment and that he or she knows (or reasonablyshould know) has not been made available to the general public. [5 CFR(b)](b) Advance procurement information. “A high level of business security must bemaintained in order to preserve the integrity of the acquisition process.” [FAR5.401(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 thegovernment before solicitation except for presolicitation notices IAW FARor 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 contractorbid or proposal information or source selection information. [41 USC 423(a),(f)(1), (f)(2); FAR (a)] [Note: This is information related to a specificsource selection.](e) Information Protected Under the Trade Secrets Act. The Trade Secrets Act statesthat, unless authorized by law, an employee may not publish or disclose anyinformation (a) that comes to him/her in the course of his/her employment orofficial duties, and (b) that concerns or relates to the trade secrets, processes,operations, style of work or apparatus, or to the identity, confidential statisticaldata, amount or source of any income, profits, losses, or expenditures of anyperson, firm, partnership, corporation, or association. [18 USC 1905](f) Intelligence. Releasing intelligence to contractors must comply withAFI , Release of Intelligence to US Contractors, 1 April 1999.
10 OPSEC!!! Information Security 410th COR Training Be aware of your surroundings!OPSEC!!!
12 Gifts: BLUF 410th COR Training You may not accept a gift: Because of your official positionFrom a prohibited source (e.g., a Contractor)
13 Conflicts of Interest 410th COR Training Joint Ethics Regulation, DoD R5 CFR 263518 USC 201: Bribery/Kickback14 Principles of Ethical Conduct for Employees of the Executive Branch
14 Definition of Gift 410th COR Training Anything of value, including cash or investment interests (e.g., stocks or bonds), with exceptionsNot all of the gift exceptions will be discussed. Those exceptions that acquisition personnel will normally encounter are discussed:Gifts of $20.00 or less.Gifts based on personal relationships.Discounts.Gifts from prospective employersRemember: If pay fair market value, it is not a gift.
15 Not a Gift 410th COR Training Modest items of food, refreshments (coffee and donuts), but not a mealGreeting cards and items with little intrinsic value (plaques, certificates) intended only for presentationCommercial discounts available to the public or to all Government personnelAnything for which you pay market value (i.e., face value)Not all of the gift exceptions will be discussed. Those exceptions that acquisition personnel will normally encounter are discussed:Gifts of $20.00 or less.Gifts based on personal relationships.Discounts.Gifts from prospective employersRemember: If pay fair market value, it is not a gift.
16 Gift Exceptions 410th COR Training Gifts of $20 or less per occasion or $50 in a calendar yearGifts of $20 or less per source per occasion, not exceeding $50 per calendar year from single sourceMay decline gifts to keep aggregate value at $20 or lessMay not pay differential over $20 to retain giftNot all of the gift exceptions will be discussed. Those exceptions that acquisition personnel will normally encounter are discussed:Gifts of $20.00 or less.Gifts based on personal relationships.Discounts.Gifts from prospective employersRemember: If pay fair market value, it is not a gift.
17 Gift Exceptions 410th COR Training Gifts based on personal relationshipGifts based on a personal relationship (family, good friend) rather than the position of the employeeConsider history of the relationship and whether family member or friend personally pays for the gift
18 Gift Exceptions 410th COR Training Commercial discounts available to general public or all Government or military personnelHowever, you cannot accept discounts to subgroups based on rank, position or organization
19 Gift Exceptions 410th COR Training Gifts from prospective employers Meals, lodging, transportation, etc,IF, customarily offeredBut…must be reported
20 Gift Exceptions 410th COR Training Gifts between Employees Departing SoldiersTraditional gift-giving occasions
21 However… 410th COR Training It is NEVER acceptable to: Accept a gift in return for being influenced to perform an official actAccept gifts so frequently that a reasonable person would think you are using your office for private gainPublic service is a public trust
22 Misuse of Contractor Personnel 410th COR TrainingMisuse of Contractor Personnel
23 Prohibitions 410th COR Training Prohibition on personal services contracts (which make contractors appear to be Government employees)Contractor personnel cannot perform Federal functionsFARThe following statutory and regulatory provisions are applicable to personal services contracts:5 U.S.C Employment of experts and consultants; temporary or intermittent10 U.S.C. 129b - Authority to procure personal services10 U.S.C Personal services contracts (at medical treatment facilities)FARDFARSAFARSA personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor’s personnel. The Government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws. Obtaining personal services by contract, rather than by direct hire, circumvents those laws unless Congress has specifically authorized acquisition of the services by contract. To determine if Federal functions, ask whether comparable services performed in the same or similar agencies by Government personnel or are services in furtherance of assigned functions or mission.
24 Remember Your Charter 410th COR Training Monitor contract compliance Do not interfere with Contractor-employee relationsDo not tell Contractors to:Hire or fire a particular employeeReassign or discipline an employeeGrant or deny leaveChange employee duty hours
25 Contractor-Employee Relationship 410th COR TrainingContractor-Employee RelationshipContractor supervisor determines:Who works what hoursLeave and other time offHolidays workedNo “59 Minute Rule”No fitness timeOrganization Day Picnic? Perhaps, if…The following statutory and regulatory provisions are applicable to personal services contracts:5 U.S.C Employment of experts and consultants; temporary or intermittent10 U.S.C. 129b - Authority to procure personal services10 U.S.C Personal services contracts (at medical treatment facilities)FARDFARSAFARSA personal services contract is characterized by the employer-employee relationship it creates between the Government and the contractor’s personnel. The Government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws. Obtaining personal services by contract, rather than by direct hire, circumvents those laws unless Congress has specifically authorized acquisition of the services by contract. To determine if Federal functions, ask whether comparable services performed in the same or similar agencies by Government personnel or are services in furtherance of assigned functions or mission.
26 Traveling with Contractors 410th COR TrainingTraveling with ContractorsThe following presentation will deal with a number of different situations concerning travel with contractor personnel. See “Travel Alternatives When Visiting Contractor Facilities,” issued as an information paper by OSD SOCO (November 2003), at the following website address:
27 Transportation and Travel 410th COR TrainingTransportation and TravelGeneral rule: Official travel of Government employee must be funded by the GovernmentSharing a vehicle can pose a problemDoes it look bad?? Well, does it?If you travel in an official capacity to a “meeting” and your spouse will accompany you, your agency may accept travel expenses from a non-Federal source for your spouse, if your spouse will:Support the mission of your agency or substantially assist you in carrying out your official duties;Attend a ceremony at which you will receive an award or honorary degree; orParticipate in substantive programs related to the agency’s programs or operations.” [41 CFR ]
28 Contractor Required to Provide Under Contract? 410th COR TrainingContractor Required to Provide Under Contract?Transportation is acceptable if it is included in a contract between the Government and the Contractor. Contracts for on-site inspections may contain a provision requiring the Contractor to make available to the Federal employee reasonable assistance for carrying out those official duties.DoD Standards of Conduct Office memo, “Travel Alternatives When Visiting Contractor Facilities”, November 2003, pages 1-2 (italics in original).
29 Transportation Integral to a Site Visit? 410th COR TrainingTransportation Integral to a Site Visit?If the Contractor offers transportation within a single site, it may be acceptable as transportation integral to the site visit. Such transportation is not gift because it does not have an independent market value, is not otherwise available, entails unique capabilities, or is of nominal value.Source: DoD Standards of Conduct Office memo, “Travel Alternatives When Visiting Contractor Facilities”, November 2003, page 2.
30 Travel Hypothetical 410th COR Training COR lives on lovely Camp Arifjan; Contractor employee lives downtownCOR wants to purchase gifts for spouse; Contractor employee offers to take COR to local storeCan COR still objectively monitor Contractor compliance with contract?Public service is a public trustIf you travel in an official capacity to a “meeting” and your spouse will accompany you, your agency may accept travel expenses from a non-Federal source for your spouse, if your spouse will:Support the mission of your agency or substantially assist you in carrying out your official duties;Attend a ceremony at which you will receive an award or honorary degree; orParticipate in substantive programs related to the agency’s programs or operations.” [41 CFR ]
31 Awards and Certificates for Contractor Personnel 410th COR TrainingAwards and Certificates for Contractor Personnel
32 Awards And yes, this includes coins 410th COR TrainingAwards And yes, this includes coinsAwards programs are based on statute:Military – 10 USC 1124, 1125Civilian USCNO statutory authority for giving coins to Contractors, so…cannot use funds to purchase coins
33 Certificates of Appreciation 410th COR TrainingCertificates of AppreciationDo not use certificates to recognize Contractor or individual Contractor employeesComplicates selection process on future contractsSee also AR ,
34 Organizational Conflicts of Interest 410th COR TrainingOrganizational Conflicts of Interest
35 Statement of Work 410th COR Training Contractor cannot provide both an item or service and correspondingItem specificationsORSystem or service work statementUnless the Contractor is the sole source or did not solely prepare SOWSee FAR
36 Proprietary Information 410th COR TrainingProprietary InformationContractors performing Government advisory and assistance services must:Agree to protect information of other companies from unauthorized use or disclosureRefrain from using the information for any purpose other than that for which it was furnishedSee FAR
38 Procurement Integrity Act (PIA) 410th COR TrainingProcurement Integrity Act (PIA)Ban on obtaining or disclosing Contractor bid or procurement infoOne-year ban on accepting compensation from certain Contractors after leaving Federal employmentRequirement for procurement officials to report employment contacts with a Contractor
39 Criminal/Civil Penalties for Disclosure 410th COR TrainingCriminal/Civil Penalties for DisclosureImprisonment up to 5 yearsUp to $50,000 fine per violation plus twice the amount of compensation an individual or organization received or offered for the prohibited conduct
40 Administrative Actions 410th COR TrainingAdministrative ActionsCancellation of the procurementDisqualification of an offerorRescission of the contractSuspension or debarmentAdverse personnel actionOther action in the best interest of the Government
41 Contractor Bid or Proposal Information (CBPI) 410th COR TrainingContractor Bid or Proposal Information (CBPI)Cost or pricing dataIndirect costs & direct labor rates, and overhead ratesProprietary information about manufacturing processes, operations or techniques marked by the Contractor
42 CBPI Does NOT Include 410th COR Training Information already disclosed or made available to publicInformation disclosed by contractorsInformation disclosed pursuant to a proper request from Congress, Comptroller General, or Inspector General (if certain conditions met)
43 PIA & Post-Government Employment 410th COR TrainingPIA & Post-Government EmploymentThese rules pertaining to the post-employment one year compensation ban are prescribed by the Procurement Integrity Act. These rules, if applicable, are in addition to other post-government restrictions discussed later.
44 One-Year Ban Rule 410th COR Training Federal employees who serve in one of seven positions or who make decisions on a contract over $10M may not accept compensation from the contractor for one year as an employee, consultant, officer or directorBan applies to officers, enlisted, civilians
45 The Seven Positions 410th COR Training Procuring contracting officer Source selection authorityMember of source selection evaluation boardChief of financial or technical evaluation teamProgram managerDeputy program managerAdministrative contracting officerOn 10 August 1999, the DoD Standards of Conduct Office (DoD/GC-SOCO) issued a memorandum on the subject, "Guidance on Application of Procurement Integrity Compensation Ban to Program Managers." This memo is helpful in determining whether and individual is a program manager. It may be found on OSD SOCO’s website:
46 The Seven Decisions 410th COR Training Award a contract, subcontract, modification, or task or delivery order over $10MEstablish rates applicable to a contract or contracts valued over $10MApprove issuance of a contract payment or payments over $10MPay or settle a claim over $10MOn 10 August 1999, the DoD Standards of Conduct Office (DoD/GC-SOCO) issued a memorandum on the subject, "Guidance on Application of Procurement Integrity Compensation Ban to Program Managers." This memo is helpful in determining whether and individual is a program manager. It may be found on OSD SOCO’s website:
47 PIA & Reporting Contacts 410th COR TrainingPIA & Reporting ContactsIf you are:Participating personally and substantially in a…Competitive procurement…Valued in excess of the simplified threshold (currently $1M OCONUS)And you contact or are contracted by a bidder or offeror in the procurement…You MUST:This concerns the PIA.
48 PIA & Reporting Contacts 410th COR TrainingPIA & Reporting ContactsPromptly report the contact in writing to your supervisor & ethics counselorandReject the offerorDisqualify yourself from further involvement in the procurementGive written report to supervisor & ethics counselor, and either:(1) reject the possibility of employment, or(2) seek disqualification from working on procurement until job discussions end & there is no arrangement for employment.Rule applies only to contracts in excess of simplified acquisition threshold ($100,000).Rule applies only between date when bids or proposals are received & contract award date.Rule applies to contacts with “bidders” & “offerors.”The maximum penalty is: Civil penalty of $50,000 for each violation, & adverse personnel action (i.e., termination).
49 Disqualification Actions 410th COR TrainingDisqualification ActionsTo avoid violating the PIA:Take no actionWritten notice to supervisor (JER 2-204)Supervisor response:Written RecusalCopy to Ethics Counselor & subordinates
50 410th COR TrainingWe may operate as a team with our contractors, but we are in different lanesAvoid appearance problemsAsk your ethics counselor!
51 YOU MAKE THE CALL! 410th COR Training The holiday weekend is fast approaching and your OIC invokes the “59-minute rule” for all members of the office – including the Contract support team.Is it permissible to allow Contractor personnel to leave 59-minutes before their scheduled departure time?
53 YOU MAKE THE CALL! 410th COR Training The day is going by fast and the boss has been tied up on a project. Bob, a former Soldier and friend who now works for a Contractor on the support contract, is going to the food court for lunch. You ask him to stop by “Chick-on-a-Stick” to pick up lunch for the boss.Is it permissible to ask Bob to pick up lunch?
59 YOU MAKE THE CALL! 410th COR Training A Contractor for your organization wants to offer ALL NCOs in your unit free tickets to the home opener for the Seattle Mariners! The Contractor hopes that this will further promote the partnership between Army and Contractor personnel. The tickets have a face value of $55 but the Contractor paid $20 each.May the NCOs accept the tickets?
60 410th COR TrainingNo!Contractor is a prohibited source, so no gifts are permissible unless an exception applies:$20/$50 rule: No – Rule is “face value” not what Contractor paidGeneral discount or benefit? No – offered only to NCOs within your organizationPersonal Relationship? No – offered because of status as NCO
61 YOU MAKE THE CALL! 410th COR Training Your unit is having an Organization Day. Place of duty for all employees is the post picnic ground or the office. The COR tells Contractor employees they must attend.Did the COR properly exercise his/her authority?
62 410th COR TrainingNo!CORs cannot interfere with the Contractor’s management prerogative by “supervising” Contractor employees or otherwise directing their work effortsUnless Organization Day attendance is part of the Statement of Work, the Government cannot REQUIRE Contractor employees to attend
63 HOWEVER… 410th COR Training Contracting employees CAN attend the Organizational Day activitiesAt their own expense and on their own timeProvided the Contractor allows them to attend