Government and Contractor Employee Interaction: Appropriate and Effective
Government and Contractor Employee Interaction: Appropriate and Effective Interaction with Our AFSPC Mission Partners HQ AFSPC/MSK August 2005 1 Overview Introduction Why Were Learning This, The Facts, The Rules, and The Risks The Basics Personal/Non-Personal Services, Inherently Governmental, Contractor IDs Theory Meets Practice: Specific Situations Protecting Sensitive Information Employee morale, Gifts, Travel, Rewards, Reservists
Specific Scenarios Conflict of Interest Dos and Donts HQ AFSPC/MSK August 2005 2 Introduction Introduction (What and Why) HQ AFSPC/MSK August 2005
3 What has changed? Contractor employees have become a large part of the DoD mission Service Contracts In the DoD 816,000 71% Federal Employees (% of all Federal Contracts) 1995
630,000 51% 1984 2001 1996 Many of these positions were outsourced to private companies at a lower cost. Contractors have become our mission partners. HQ AFSPC/MSK August 2005 4 What has changed?
1941- World War II 1960 1942 most services were performed by Government personnel 1960 Vietnam through Gulf War Government saved resources and funds by contracting out non1990 essential functions 1995 Afghanistan and Iraq Global War on Terrorism (GWOT) Government stands shoulder-to-shoulder with Contractor 2005 personnel (Deidre Lee, April 2004) HQ AFSPC/MSK August 2005 5
Facts, Rules and Risks FACT: 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. This presentation aims to mitigate the risks by providing government employees an understanding of the laws and rules in the government-contractor relationship. HQ AFSPC/MSK August 2005 6 Facts, Rules and Risks Government, 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 2635.101: DOD 5500.7-R, Chapter 2, Section 2-100 also known as the Joint Ethics Regulation] HQ AFSPC/MSK August 2005 7 Facts, Rules and Risks
Inappropriate govt/contractor relationships may cause: Contractors to over-offer in order to generate business Government employee to inadvertently commit the Government Embarrassment to Commands during a ratification Legal implications, to include lawsuits IMPACT TO MISSION resulting from misused funds and wasted resources on ratifications or disciplinary action
p.s. This symbol in this presentation denotes a key point Uniformed 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. HQ AFSPC/MSK August 2005 8 The Basics HQ AFSPC/MSK
August 2005 9 Personal vs. Non-Personal Services What are Personal Services? Per FAR 37.104 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? HQ AFSPC/MSK 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. August 2005 10 Personal vs. Non-Personal Services Whats 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 workers 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. HQ AFSPC/MSK August 2005 11 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:
HQ AFSPC/MSK Direction/control of federal employees Determination of budget policy, guidance and strategy Resource allocation or program management duties Approval of contractual documents or administering contracts Obligating Congressional authorized funding August 2005 12 Whos Who in the Workplace: Contractor ID Contractor identification is key to avoiding problems
Contractor personnel must wear obvious identification. Nearly all service contracts specifically require contractor personnel to wear conspicuous badges. If you dont know, ASK! Identify contractors in telephone conversations, meetings and all written correspondence, including e-mail (per AFI 33-119, 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. HQ AFSPC/MSK August 2005 13 Contractor Identification Unidentified contractors increase risk of: Unauthorized advance release of procurement information - giving unfair advantage to one or more contractors
Disclosure of source selection information, such as source selection plans, evaluation factors, exact funding amounts, proposals, and proposal evaluations Conversion to improper personal services contracts where contractor personnel are managed as though they are government employees Risk of unauthorized work direction (mistaken for Govt employee) Performance of inherently governmental functions by contractors, such as Program Element Monitor (PEM) duties, Program Management duties, and other resource allocation and/or decision-making HQ AFSPC/MSK August 2005 14 Why Its Important To You Administrative sanctions
Civil sanctions Criminal sanctions HQ AFSPC/MSK August 2005 15 Ramifications That May Be Triggered Misuse of Appropriations (Anti-deficiency Act violations) Trade Secrets Act Violations Procurement Integrity Act Violations Standards of Conduct Violations
Conflicts of Interest Gift rules Preferential treatment Unauthorized commitments Endorsements Preserve and protect government property/resources HQ AFSPC/MSK August 2005 16
Theory Meets Practice (and other day-to-day situations) HQ AFSPC/MSK August 2005 17 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 information Know 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 information The results of unauthorized disclosure include: Causing a competitive advantage, risking protests and/or possible subsequent litigation Violations of the Procurement Integrity Act [41 USC 423] and the Trade Secrets Act [18 USC 1905] leading to criminal prosecution HQ AFSPC/MSK August 2005 18 Protecting Sensitive Information DoD policy identifies information that is not releasable, including: Classified information Planning, Programming, Budgeting and Execution (PPBE) information Contractor proprietary information
Unsolicited proposal information Internal agency communications Source selection information, and Information that would create an unfair competitive advantage HQ AFSPC/MSK August 2005 19 Protecting Sensitive Information Guidelines for Protecting Sensitive Information 1. When 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! 2. 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). 3. Proprietary information is releasable to a contractor only if protected by appropriate contract clauses and non-disclosure agreements.
4. Do not place contractor personnel in a position of liability for property over which they have no contractual authority, accountability or control. 5. Do not delegate responsibility for end-of-day security checks to contractor personnel (unless their contract specifically allows it). 6. Consult your legal counsel if you have questions about releasing sensitive information. An attorneys advice is confidential and privileged. HQ AFSPC/MSK August 2005 20 Theory Meets Practice: Specific Situations HQ AFSPC/MSK August 2005 21
Specific Situations 1. Inclement Weather Dismissals Government does not determine contractor leave policy Government generally does not compensate contractor for nonperformance Contracting Officer will refer to the contract terms and conditions that address government down time 2. Combined Federal Campaign Cannot solicit contractor employees directly or indirectly May accept voluntary contributions of checks made to CFC Performing as CFC rep--is it in the contract? HQ AFSPC/MSK August 2005 22 Specific Situations
3. Birthday clubs & gift exchanges Cannot solicit No cash or investments Gift rules apply 4. Use of Air Force 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). HQ AFSPC/MSK August 2005 23 Specific Situations 5. 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. HQ AFSPC/MSK August 2005 24 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, OR Proprietary or confidential information about the competitors of his or her private employer. [JER para.
5-408] HQ AFSPC/MSK August 2005 25 Assignment of Reservists Problem Avoidance Commanders have an affirmative obligation under the JER 5408 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 HQ AFSPC/MSK August 2005 26 Assignment of Reservists Problem Avoidance Screening 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); and The reservists supervisors name, date and an affirmative (signed) statement that a conflict of interest analysis has been performed. HQ AFSPC/MSK August 2005 27
Assignment of Reservists Disclosure of Non-Public Information Federal employees, including reservists, may not disclose non-public information: To further their own private interests, OR To further the private interests of another (such as their private employer). [5 CFR 2635.703] 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. HQ AFSPC/MSK August 2005 28
Specific Situations Bottom Line: Be aware of whom sensitive information is sent to! HQ AFSPC/MSK August 2005 29 Specific Situations: Scenario #1 Situation: 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 offsite or picnic to build team unity and morale. Question:
As a member of the A1 Program team, can Bill attend the picnic? Answer: HQ AFSPC/MSK August 2005 30 Specific Situations: Scenario #1 No, Bill cannot normally attend the picnic. It is up to Bills 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). Bottom Line: The morale of the contractor employees is the
responsibility of the contractor. HQ AFSPC/MSK August 2005 31 Specific Situations: Scenario #2 Situation: 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 coed volleyball team. Question: Could Margaret play for the MS Volleyball squad at Sports Day? Answer:
HQ AFSPC/MSK August 2005 32 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. HQ AFSPC/MSK August 2005 33 Specific Situations: Scenario #3 Situation:
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. Question Can the program manager accept the service? Answer: HQ AFSPC/MSK August 2005 34 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 freethey are looking for influence just like Dr. X. HQ AFSPC/MSK August 2005 35 Scenario #4 Situation Mary 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: HQ AFSPC/MSK
August 2005 36 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 1400.25 and AFI 36-1004, paragraph 1.9) Its the contractors 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. HQ AFSPC/MSK
August 2005 37 Contractor Travel in Government Vehicles Unless specified in the contract, contractor personnel are not allowed to use government vehicles Exception (FAR 45.102 & 45.304) only if: number of vehicles required is predictable and constant proposed contract will bear entire cost of vehicle program vehicles will be used only on specific contract approved prospective contractors do not or would not be expected to have existing and continuing capability to provide vehicles from their own resources substantial savings are expected
Contractor may use shuttle bus between installations Contractor may be a passenger in GOV if no appearance of favoritism Government may issue letter that contractor is performing government business IAW JTR/FTR GOVERNMENT EMPLOYEES MAY NOT RIDE IN CONTRACTOR VEHICLES EXCEPT IN VERY LIMITED CIRCUMSTANCES! HQ AFSPC/MSK August 2005 38 Conflict of Interest (CoI) HQ AFSPC/MSK
August 2005 39 Contractor Organizational CoI Cannot award a contract to a contractor that: May be unable to render impartial assistance/advice Has potential future gain or past involvement in a program, such as: Drafting Statements of Work Evaluation of competitors offers Access 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 advantage
Bottom Line: We must prevent the existence of conflicting roles that may bias a contractors judgment Mitigation may include prohibition from bidding HQ AFSPC/MSK August 2005 40 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 interest IMPUTED to YOU: Spouse, Minor children, Members of household, Prospective employers Organizations IF you currently or w/n past year served as employee, trustee, partner, consultant, or employee active participant
FINANCIAL INTEREST includes: Seeking or negotiating for non-federal employment Working for associated profit or non-profit entities Outside job/business activities Ownership in a company Investments, stocks, bonds--exception if: < $15,000; < $50,000 in sector; Independently managed, widely-diversified (i.e. Mutual Fund) HQ AFSPC/MSK August 2005 41 Conflicts Of Interest: Remedial Actions Contractor: Disqualification from Acquisition Government Employee:
Divestiture of company stock Waiver (after Determination) Reassignment or Transfer to other program Resignation from outside position if moonlighting* *Other restrictions also apply, seek advice from ethics counselor HQ AFSPC/MSK August 2005 42 The Dos and Donts HQ AFSPC/MSK
August 2005 43 Dos 1. Remember: Contractor personnel are not government employees different rules apply. 2. Ensure contractor personnel wear distinctive badges and can be easily identified - including E-mail correspondence and on the telephone. 3. Respect the employer-employee relationship between contractors and their employees. 4. Protect intellectual property rights when contractor work products are created or shared in the federal workplace. 5. 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. 6. As necessary, seek assistance from legal counsel in resolving these inappropriate relationships.
HQ AFSPC/MSK August 2005 44 Dos 7. Safeguard sensitive information, including proprietary, Privacy Act and source selection information. 8. Clearly describe all contract taskings and ensure they are in-scope. 9. 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 contractors task leader assigns taskings to individual contractor personnel. 10. 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). HQ AFSPC/MSK August 2005 45 Donts 1. Don't become involved in the operations and policies of the contractor such as: (a) Selecting, recruiting, hiring or firing contractor personnel (b) Directing, scheduling, or critiquing individual contractor tasks on a continuous basis (c) Supervising contractor personnel
(d) Pressuring the contractor to use favorite personnel, or insisting on particular personnel actions 2. Don't use government and contractor personnel interchangeably. 3. Don't require out of scope work, personal services, or inherently governmental functions. - there are no and other duties as assigned 4. 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. 5. Don't solicit or accept gifts from contractor personnel (other than coffee, small food items, etc. IAW Ethics Regulations). HQ AFSPC/MSK August 2005 46 Donts 6. Do 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.
7. 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. HQ AFSPC/MSK August 2005 47 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 692-3916 and ask for clarification HQ AFSPC/MSK August 2005
48 QUESTIONS? This briefing may be accessed on the AFSPC/MSK website: http://www.peterson.af.mil/hqafspc/contracting/ HQ AFSPC/MSK August 2005 49 Resources The 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. HQ AFSPC/MSK August 2005 50 Thanks to This presentation and the associated materials were developed from a compilation of information gathered from various sources within the Department of Defense. CONTRIBUTORS WR-ALC/JA and WR-ALC/PK, Enhancing Relations with Support Contractors, undated Briefing AFMC Contracting Guide For The Government- Contractor Relationship AFMC Contracting (AFMC/PK) Guide to Government-Contractor Relations Susan J. Harvey, Service Contract Management; No Place For Amateurs, Program Management Magazine, Jan-Feb 02, pp56-7 Department of Defense, Ethics Issues in Government-Contractor Teambuilding, 15 Jul 99
AFSPC/JA Government-Contractor Interactions. HQ AFSPC/MSK August 2005 51 Additional Resources 5 CFR 2635.101 Standards of Ethical Conduct for Employees of the Executive Branch Basic Obligation of Public Service 5 CFR 2635.203 Definitions regarding gifts 5 CFR 2635.204 Exceptions to general ban on gifts 5 CFR 2635.703 Use of Nonpublic Information 5 CFR 2635.704
Use of Government Property 5 CFR 2635 Subpart B Gifts from Outside Sources 5 USC Subpart C Awards for Superior Accomplishments 5 USC 3109 Employment of Experts and Consultants 5 USC 4111 Acceptance of Contributions, Awards and Other Payments 5 USC 7342 Receipt and Distribution of Foreign Gifts and Decorations 10 USC Chapter 857 Decorations and Awards 10 USC 2601 General Gift Funds 18 USC 1905 Disclosure of Confidential Information Generally 26 USC 501 Exemption from Tax on Corporations, Certain Trusts, etc. 28 USC 1346
United States as Defendant 28 USC 2671 Definitions 29 USC Chapter 15 Occupational Safety and Health 29 USC 652 Definitions 29 USC 654 Duties of Employers and Employees 31 USC 1301(a) The Purpose Statute 31 USC 1344(a) Passenger Carrier Use 31 USC 1353 Acceptance of Travel and Related Expenses from Non-Federal Sources 31 USC 3729 False Claims 41 USC 423 Restrictions on Disclosing and Obtaining Contractor Bid or Proposal Information or Source Selection Information (referred as the Procurement Integrity Law)
FAR Federal Acquisition Regulation JER Joint Ethics Regulation OGE Letter to a Private Organization Office of Government Ethics DODR 5500.7-R Joint Ethics Regulation HQ AFSPC/MSK August 2005 52
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