1 Contractors in the Workplace Some Legal, Ethical and Practical Considerations Presented by Barbara Amster Drafted by Acting Counsel/NAVSUP Contractors in the Workplace Some Legal, Ethical and Practical Considerations Presented by Barbara Amster Drafted by Acting Counsel/NAVSUP

2 Contractors in the Workplace Trend: more now and more to come... Outsourcing IPTs Advisory and assistance services Technical support Shared workspaces All day visits A new paradigm for the future workplace

3 Contractors in the Workplace Basic Tenet: Contractor employees are not government employees. Five Basic Problem Areas: 1. Gifts from contractors 2. Use of government resources 3. Personal services 4. EEOC complaint process 5. Contractor access to non-public information

4 The rule -- Nothing of value can be accepted from an outside source, except: $20/$50 exception Coffee and donut exception Discounts, other benefits offered to all Greeting cards and items of little intrinsic value The rule is not suspended because the contractor shares workspace. Contractors in the Workplace 1. Gifts from Contractors

5 Includes: Office Space Telephone Computers Governed by the terms of the contract Not covered by local instructions - they apply to civilian and military employees; contractor employees are not government employees Contract can be written to make the same rules apply (but not sanctions for violations) Contractors in the Workplace 2. Use of Government Resources

6 Problem Area: Contractors use of gov’t resources can blur the distinction between the gov’t and the private sector All individuals we make contact with must know who they are dealing with: General public Other DON activities Our own workers Avoids inadvertent disclosure of non-public information Distinct badging Marking of office spaces Bull pen address identifier Contractors in the Workplace 2. Use of Government Resources

7 Illegal to receive personal services from a contractor Personal Services Contract -- any contract that, by its express terms or as administered, makes the contractor personnel appear to be government employees Contractors in the Workplace 3. Personal Services

8 Key indicia of personal services contracts performance on-site principal tools and equipment furnished by the government services are applied directly to the integral effort of the command in furtherance of its assigned function or mission comparable services are performed elsewhere in the same activity or at other activities by government employees the need for the service provided can reasonably be expected to last beyond one year Contractors in the Workplace 3. Personal Services

9 How to avoid personal services situation: Do not treat contractor employees as if they were government employees: Do not direct them step-by-step: pass them a tasker and ask for a deliverable Do not supervise their performance: give feedback Do not “hire” them Do not “fire” them Do not “approve” their leave Do not discipline Do not include them in your training classes (unless contract specifically allows) Use only the Contracting Officers Representation (COR) to give direction to contractor Contractors in the Workplace 3. Personal Services

10 Support contractor employee’s use of agency EEO process to file complaint against you It can and has happened If the command controls the “means and manner” of the worker’s performance, the command can be subject to EEO complaints from support contractors Contractors in the Workplace 4. EEOC Complaint Process 4 4

11 Factors 1. Is the work done under the direction of a supervisor or is it done by a specialist without supervision? 2. The skill level of the occupation 3. Whether the government provides the equipment and place of work 4. Length of time the individual has worked 5. Method of payment: by time or by the job 6. Control over leave 7. Is the work an “integral” part of the business of the “employer” (i.e., command)? Contractors in the Workplace 4. EEO Complaint Process

12 Contractors in the Workplace 5. Non-Public Information Balancing Act - Protection of sensitive government information vs. contractors need to know Restrictions on gov’t employees 4 Procurement Integrity Act (41 USC 423) 4 Disclosure of Confidential Information (18 USC 1905) 4 Use of Non-Public Information (Joint Ethics Regs, 5 CFR ) 4 Contract Restrictions

13 Employees of Support Contractors Since they are not government employees, if you give contractor employees access to non-public information: 4 it has now been released outside the government 4 contractor employees are not covered by same laws and regulations 4 Except for: Bribery statues/ Privacy Act Contractors in the Workplace 5. Non-Public Information

14 Before giving access to non-public information: (1) Do you have the legal right to do so? (2) Do you need permission? (3) Is the purpose of using it within the scope of the contract (4) Is there a need to know? (5) Has contractor promised not to further disclose? in the contract by separate agreement Contractors in the Workplace 5. Non-Public Information l l

15 Remember that contractor employees are not Federal employees Identify contractor employees as such with distinctive security badges, by including their company’s name in their address, and otherwise ensuring that our employees and members of the public understand their status Respect the employer-employee relationship between contractors and their employees and do not interfere with it, pressuring the contractor to use “favorite” employees, or insisting on particular personnel actions Avoid incumbent contractor unfair competitive advantage by including its employees in meetings to discuss aspects of the re-competition, or by accidentally allowing the contractor’s employees to overhear or gain access to planning information Contractors in the Workplace Some Dos and Don’ts

16 Safeguard proprietary, Privacy Act, and other sensitive and nonpublic information. Release of certain types of information to contractor employees 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 to include mandatory removal. Beware of gifts from contractor employees. Even if they work in the federal workplace, they are “outside sources” and the rules for their gifts are very different than the rules for gifts between employees. Contractors in the Workplace 4 4 Some Dos and Don’ts (cont.)

17 Don’t require “out of scope” work, personal services, or “inherently governmental functions” The services that the contractor is required to provide through its employees are set out in the contract; there are no “and other duties as assigned.” When we contract, we give up control and flexibility. 4 Some Dos and Don’ts (cont.) Contractors in the Workplace l l l

18 Resolve inappropriate appearances created by close relationships between federal and contractor employees. Example: If a federal employee develops a close personal relationship with the contractor’s site manager, that federal employee probably should not be assigned or continue as the Contracting Officer Representative (COR). 4 Some Dos and Don’ts (cont.) Contractors in the Workplace l

19 Back-Up Material Non-Public Information

20 Procurement Integrity Act Government employees Shall not knowingly disclose procurement information before the award of a contract to which it relates. Shall not knowingly obtain procurement information before the award of contract to which it pertains. 4 4

21 Procurement Integrity Act Applies to: present and former officers and employees anyone who assisted with procurement anyone who had access to source selection information 4 4 4

22 Procurement Integrity Act What information is protected from disclosure? Contractor bid or proposal info cost or pricing data labor rates proprietary information information marked by the contractor as “Contractor Bid or Proposal Info ” 4 l l l l

23 What information is protected from disclosure? Source Selection Info lbid prices before bid opening lproposed costs of prices lsource selection plans ltechnical evaluation plans levaluations of technical proposals levaluations of cost proposals lcompetitive range determinations lrankings of bids, proposals or competitors lreports of source selection panels, boards or advisory councils Procurement Integrity Act 4

24 Penalties for Violation Criminal Penalties 5 years fines Civil Penalties $50K for each violation plus two times the amount of any compensation offered or received by gov’t employee in exchange for info Procurement Integrity Act 4 4 l l l

25 18 USC 1905 Gov’t employees may not divulge information received in the course of their employment or official duties Covers information related to: trade secrets, processes, operations, style of work, statistical data, or information relating to profit, losses or sources of income of any person, firm, partnership or corporation Penalty: Fine and/or 1 year in prison, must be removed from employment Disclosure of Confidential Information 4 4 4

26 Use of Non-Public Information Gov’t employee may not engage in any financial transaction using non-public information May not allow the use of it for employee’s private gain or for someone else's Whether by advice, recommendation or unauthorized disclosure Joint Ethics Regulations 5 CFR

27 Contractor provided technical data Limited rights software Contract Restrictions