Wisconsin National Guard Contractors in the Workplace Training February 2014

AGENDA Introduction: CPT Ron Adams Contracting: Gwen Duncan (JAG) Legal: MAJ Douglas Moore/ Capt Tyler White (J2) Security: LTC Virginia Egli Summary: CPT Ron Adams

Gwendolyn.f.duncan2.civ@mail.mil 608-427-7271 Contractors in the Workplace Defined… Gwen Duncan Supervisory Contract Specialist Gwendolyn.f.duncan2.civ@mail.mil 608-427-7271

Federal Employee Oath I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 5 U.S.C. §3331

Contract Employee Contractor employees have no such oath. They follow the direction of their employer and the terms of the contract.

Why the Government Uses Contracts Services Necessary: to Acquire support in areas that are not inherently government Admin Support Help Desk Support Data Analysis Janitorial Services

Guidelines for Service Contract Federal Acquisition Regulation (FAR) Subpart 37.1—Service Contracts TAG Policy Memo 36

What is a Service Contract Usually set up as a fixed price contract, that is Performance Based. The contractor is paid a predetermined amount for the services requested. Statement of Work – What the Federal Government expects completion of. If the company provides us what we ask for in the Statement of Work - they bill us on a monthly basis a predetermined amount.

Statement of Work Statements of Work shall define requirements in clear, concise language identifying specific work to be accomplished. Describe the work in terms of "what" is to be the required output rather than either "how" the work is to be accomplished or the number of hours to be provided. Federal Acquisition Regulations [FAC 97-11]

DELIVERABLES The statement of work is an overall picture of the desired work . It discusses the Project OR Technical Outcome that is required of the Contractor Time frame of Completion of a project or it identifies the number of hours the government will pay for contract employee to work (i.e. 40 hours a week)

Measuring and Evaluating Contractor Performance The Contract Describes the Deliverables Describes how successes will be measured If Company meets the Deliverables – Company is paid

Role of Contracting Officer Representative (COR) In short, Contracting Officer Representatives (COR) are qualified individuals appointed by Contracting Officer to: Maintain liaison and direct communications with both the contractor and the contracting officer. To assist in the technical monitoring or administration of a contract. The greater the degree of reliance on contractors, the greater the need for Government oversight

Understanding the Government-Contractor Relationship Government personnel cannot supervise Contractor personnel stipulate contractor duty hours (except for that directed in the contract) require contractor employees to report to Government personnel maintain contractor personnel records/time cards, e.g. approve leave for contractor personnel Respect the employer - employee relationship between contractors and their Company.

Frequently Asked Questions on Service Contracts Do we control what a person is paid that works on a contract? No with a little bit of yes The contract has to abide by the state of Wisconsin’s wage determinations for the type of work the contract employee is performing. What about a contract Employee Benefit Package ? We do not control a companies benefit package It is up to their companies policy. (i.e. insurance, paid time off, retirement package, etc …)

Questions?

LEGAL MAJ Douglas Moore Deputy Staff Judge Advocate and Capt Tyler White Assistant Staff Judge Advocate 608-242-3077

Working with Contractors: What You Need to Know An introduction to many of the most common ethics areas that you might encounter when you work with contractor employees.

What This Course Doesn't Cover This course is not a comprehensive introduction to the ethics rules and regulations that will affect you. This course is not a substitute for ethics advice. If you are faced with a specific issue, you should always seek advice from an ethics official – Legal Office. Finally, although this course will touch on some provisions of procurement law, it also is not a substitute for training in Federal procurement law and policy.

The Federal Workplace Changing Workplace Unchanging Laws Contractors Support DoD Mission Contractors are “Partners” Unchanging Laws Fundamental Differences Legal and Ethical Limitations 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

Investigations Reveal “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." Government Executive, February 2004, p. 21.

Goals Re-establish the LINES Recognize when contractors and Federal employees must be distinguished 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.

What’s the Big Deal? Generally, conflict of interest (COI) laws and Standards of Ethical Conduct & JER do not apply to contractor employees, even when: Performing same / similar work Working side-by-side in the Federal workplace, contractor workplace, or on the battlefield Different loyalties: Public vs. Private Result? Ethical Issues and actual / apparent COIs! Increasingly, private sector contractor employees are being used to accomplish the business of Government. These contractor employees can work either off-site or even in the same location as you. This may sometimes cause certain ethical issues to arise which you'll need to think about. It is important for you to know about the ethics rules and principles that focus on the specific situations that are likely to come up when Government and contractor employees work closely together. Some of these rules will be familiar to you, especially if you have taken ethics training before in your agency. Some may not be so familiar.

What’s the Big Deal? (continued) Inappropriate NG/contractor relationships may cause: - You to inadvertently commit the NG - Embarrassment to the NG -Legal implications; including lawsuits - Negative impact to Mission Accomplishment resulting from misuse of funds and wasted resources NG 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.

Government / Contractor Relationship The Government establishes a relationship with the contractor, which is defined by the CONTRACT The contractor must be allowed to operate under the terms of their contract without undue Government influence NG officials must not: Direct or suggest subcontracting arrangements Imply that they can influence the outcome of source selections Tell or suggest to a contractor whom to hire or what to pay an employee

Government / Contractor Relationship (continued) Government personnel must not exercise any of the following functions over contractor employees: Supervise or direct Approve leave or other absences Train or approve training (Normally a contractor is expected to provide a trained workforce that is responsive to and meets the contract obligations.) Conduct individual performance appraisals or other evaluations Provide or approve awards and recognition Evaluations should be written around the work product, not the individual contractor employees Ensure Government surveillance of contract performance, NOT supervision, in order to avoid the appearance of a “personal services” contract. It is not the government’s role to grade or discuss the performance of individual contractor employees. The Contracting Officer or COTR will contact the contractor, verbally or in writing, in a timely manner when there is concern that the product and/or services are unsatisfactory.

Government / Contractor Relationship (continued) Contractor employees in turn must not: Supervise Government personnel Supervise employees of other contractors Administer contracts or supervise Government procurement activities Perform inherently governmental functions Evaluations should be written around the work product, not the individual contractor employees Ensure Government surveillance of contract performance, NOT supervision, in order to avoid the appearance of a “personal services” contract. It is not the government’s role to grade or discuss the performance of individual contractor employees. The Contracting Officer or COTR will contact the contractor, verbally or in writing, in a timely manner when there is concern that the product and/or services are unsatisfactory.

Risk of Unlawful Personal Services Contracts Appearance of employer / employee relationship Personal services contracts do require the exercise of discretion and may place the contract employee in a position to direct government policy and/or employees. Prohibited unless authorized specifically by statute Subverts civil service laws and OPM regulations Potential Antideficiency Act violations!!!

Recognizing Unlawful Personal Service Contracts The key question will always be: “Will the Government exercise relatively continuous supervision and control over the contractor personnel performing the contract?” FAR 37.104(d) provides the following additional guidance: Is performance on site? (i.e., on a Government Installation) Are the principal tools and equipment furnished by the government? Are the services being performed by the contractor directly related to the accomplishment of the agencies assigned mission or function? Are comparable services being performed in the same agency by civil service personnel? Will the need for this type service be expected to last beyond 1 year? Does the nature of the service being provided reasonably require Government direction or supervision of contractor employees in order to adequately protect the Government’s interest, retain control of the function involved, or retain personal responsibility for the function by a duly authorized Federal officer or employee?

Avoiding Personal Services 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, nor “interview” 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

EEOC Complaint Process 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 A means for military members and DOD civilian employees to present allegations of unlawful discrimination and sexual harassment by an offending party, or someone in a position of authority, or both Goal: Resolution at lowest level possible

Gifts and Travel from Contractors When employees and contractors work closely, a common issue is how to deal with gift-giving between contractor employees and Government employees.  Even though you may work together with contractor employees on a daily basis, remember that contractor employees are not Government employees. Ethics rules generally forbid you from accepting gifts from "prohibited sources." Contractors working for your agency or looking for business with your agency are "prohibited sources." And it's important to remember that contractor personnel, not just the company that employs them, are also "prohibited sources" of gifts. When employees and contractors work closely, a common issue is how to deal with gift-giving between contractor employees and Government employees.  Even though you may work together with contractor employees on a daily basis, remember that contractor employees are not Goverment employees. Ethics rules generally forbid you from accepting gifts from "prohibited sources." Contractors working for your agency or looking for business with your agency are "prohibited sources." And it's important to remember that contractor personnel, not just the company that employs them, are also "prohibited sources" of gifts.

Gifts Contractor employees are prohibited sources Exceptions: General rule is NO gifts solicited or accepted NO solicitation for retirement or other gift for Gov’t employee Exceptions: Modest items of food and refreshment. The gift does not exceed $20 value per occasion. Total gifts cannot exceed $50 per source, per year. Discounts, other benefits offered to all. Greeting cards and items of little intrinsic value. What is a "Prohibited Source?” A person or entity is a prohibited source of gifts for you, if that person or entity: Is seeking official action by your agency ; Does business or seeks to do business with your agency ; Conducts activities regulated by your agency ; Has interests that may be substantially affected by the performance or non-performance of your official duties Therefore, any contractor working for your agency or any prospective contractor, and any employees of those contractors are prohibited sources of gifts to you . One common exception allows you to accept non-cash gifts from a prohibited source if the gifts from that person or company have a value of no more than $20 per occasion and no more than a total of $50 per calendar year.  A contractor and an employee of a contractor are considered the same source under the gift rules.  So, for example, you can accept two $20 meals from contractor employees who work for the same contractor, but you can't accept more than a total of $50 worth of meals a year from all employees of the same contractor. Be careful; you may not use any of the gift exceptions, including this exception, to accept gifts from the same or even different sources so frequently that a reasonable person would believe you're using your public office for private gain. For example, accepting free lunches from different contractors every week would present the appearance that you were using your public office for private gain. The rule is also not suspended because the contractor is a retiree (military/technician).

Specific Situations Birthday clubs & gift exchanges Cannot solicit No cash or investments Gift rules apply Best answer is contractors don’t participate! Use of DoD, AR, AF or NG Seal Contractors 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).

Awards Awards to military personnel (10 U.S.C. §§ 1124, 1125) and civilian employees (Incentive Awards IAW 5 U.S.C. §§ 4511-4513) are legal Based on statute Contractor employees are not authorized recipients! Contracts may include provisions for awards (incentive fee; award fee; etc.) Preferential treatment

Awards Contractors have their own awards and bonus programs Gov’t may provide honorary awards (certificates and other small items) IAW agency program DoD 1400.25-M, Subch. 451, Apps. 1 and 2) Always coordinate proposed honorary award with contracting officer

Time Management Contractor employees work on clock controlled by contractor supervisor, not Gov’t supervisor Leave and other time off controlled by contractor supervisor Holidays and other time off governed by contract, not Gov’t supervisor “59 Minute Rule” and training holidays are unavailable to contractors

Time Management The Government may not: Authorize compensatory time for contractor employees Invite contractor employees away from their assigned workplace or otherwise authorize contractor employees to attend activities unrelated to the performance of their contract. (i.e., sports days, retirement ceremonies, and office social events.) Ask for help to set up an office or command event (Unless authorized in the contract) Ask contractor employees to volunteer time to help set up an office or command event.

Time Management It’s Organization Day – May contractors participate? Yes, if: Invited by Gov’t, and Contractor supervisor approves, and Contractor employees are in leave or other non-billing status

Specific Situations Inclement Weather Dismissals Government does not determine contractor leave policy Government generally does not compensate contractor for non-performance Contracting Officer will refer to the contract terms and conditions that address government down time Combined Federal Campaign Cannot solicit contractor employees directly or indirectly Cannot have contractor perform as CFC representative

Use of Government Resources Includes: Office Space Telephone E-mail 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) Contractor use of Government office space, telephone, e-mail, computers, etc. Contractors are usually required to provide property necessary for performance of the contract (FAR 45.102) Government may supply property if cost effective, in Government’s best interest (FAR 45.509-2) Proper use of Government equipment is governed by the terms of the contract Local instructions for use of Government property do not apply to contractor employees Contracting Officer should discuss issue with contractor supervisor Contract can be written to make the same rules apply (but not sanctions for violations)

Use of Government Resources 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 DA activities Our own workers Avoids inadvertent disclosure of non-public information Distinct badging Marking of office spaces Bull pen E-mail address identifier Contractor use of Government office space, telephone, e-mail, computers, etc. Contractors are usually required to provide property necessary for performance of the contract (FAR 45.102) Government may supply property if cost effective, in Government’s best interest (FAR 45.509-2) Proper use of Government equipment is governed by the terms of the contract Local instructions for use of Government property do not apply to contractor employees Contracting Officer should discuss issue with contractor supervisor Contract can be written to make the same rules apply (but not sanctions for violations)

Contractor Travel in Government Vehicles Generally contractor personnel are not allowed to use government vehicles. If use is in government’s best interest must be in the contract and only if it is in compliance with FAR: Number of vehicles required is predictable and constant Proposed contract will bear entire cost of vehicle use Vehicles will be used only on specific contract Prospective contractors do not or would not be expected to have existing and continuing capability to provide vehicles from their own resources Substantial savings to the government are expected Contractor may be a passenger in GOV If no appearance of favoritism Government employees generally may not ride in contractor vehicles!

Contractors in the Workplace Some Dos and Don’ts 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 e-mail 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 (cont.) 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 Some Dos and Don’ts (cont.) 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.

Contractors in the Workplace Some Dos and Don’ts (cont.) 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).

Questions?

Contractors in the Workplace Security LTC Virginia Egli Deputy J2 virginia.l.egli.mil@mail.mil

Background Investigation Contract Employee Background Investigation All contractors are subject to a National Agency Check w/ Inquiry (NACI) and/or Access National Agency Check w/Inquiry (ANACI) A NACI is required for issuance of a Common Access Card (CAC) and/or access to DoD networks An ANACI is required for access to classified information and/or performance of other duties (ie: IT)

Background Investigation Contract Employee Background Investigation Requirement per contract Need to know Suitability and/or eligibility Access Process J1 notified of contractor in the workplace Fingerprints (six locations throughout the state) PSIP request form (birth certificate or citizenship paperwork required) Open e-QIP through PSIP CoE Completion of SF 86/85 to include resume and OF 306 Duration 60-180 days

Contract Employee Identification Wear a contract agency supplied identification badge Identify themselves as a contract employee when they answer the phone Written communication (email or letter) must include contract information

Contract Employee Identification Use of Military title/rank or reserve retired, is inappropriate while performing duties as a contractor All documents and reports must be suitable to ensure contractor participation is appropriately disclosed

Improper Disclosure Of Information Protecting Sensitive Information Improper Disclosure Of Information A Government employee may not Allow contractor employee access to data and information to be used in planning or access to an acquisition plan where the contractor is a potential source for the procurement Give the contractor access to information relating to any confidential or financial data of some other person or firm, when no consent has been obtained Other sensitive nonpublic information, i.e., information you would not release under the Freedom of Information Act

Protecting Sensitive Information Before providing information to a contractor, we must ensure that the contractor is authorized access to the sensitive information The consequences of unauthorized disclosure include: Violations of the Privacy Act Violations of the Procurement Integrity Act Causing a competitive advantage, risking protests and/or possible subsequent litigation

Protecting Sensitive Information Contractors have no access to sensitive information unless it is required for them to accomplish the tasks required in the contract. Sensitive information is only releasable to a contractor if protected by appropriate contract clauses and non-disclosure agreements. Consult with SJA before releasing sensitive information to a contractor.

Protecting Sensitive Information What is sensitive information? Classified information Planning, programming, budgeting and execution information Privacy Act Information Personally Identifiable Information Contractor proprietary information Unsolicited proposal information Source selection information Any information that would create an unfair advantage

Summary Remember that contractor employees are not Federal employees Process to identify contractor employees Respect the employer-employee relationship between contractors and their employees Safeguard procurement, Privacy Act, confidential or other sensitive non-public information Insure that contractor employees do not perform “out of scope” work Address potential ethical issues with your ethics counselor promptly.

Questions?