From the Air Force GUIDE FOR THE GOVERNMENT- CONTRACTOR RELATIONSHIP, OCTOBER The general rules governing. Contractors in the Workplace. Some Legal, Ethical and Practical Considerations. Office of Counsel, Naval Air Systems Command. October 2. Contractors. GUIDE FOR THE GOVERNMENT- CONTRACTOR RELATIONSHIP OCTOBER TABLE OF CONTENTS TABLE OF CONTENTS 2 CHAPTER I.
Normally a minister will look to departmental staff for support for non-political activities within the scope of her or his departmental or portfolio responsibilities. Departmental staff assigned to a minister's office are public service employees in the employ of their department.
These persons cannot transfer with a minister when he or she changes portfolio. Persons whose main duties have been to provide a personal service to a minister e. For this reason, two departments may make arrangement to transfer such persons, provided this does not duplicate roles. The Treasury Board will consider any other requests for exceptions to this policy. In developing proposals for exceptions, ministers should give due consideration to the potential implications for departmental employees who may be displaced by other public service employees who may move from the previous portfolio.
Departmental staff may be physically located near the minister's office and normally receive direction and supervision from the minister or exempt staff members in the conduct of the business of the minister's office.
They are, however, at all times an integral part of the human resources of the department and, as such, are ultimately responsible to departmental authorities. Departmental staff in ministers' offices should not provide support services that are readily available in the department.
Ministers should look to the deputy minister for professional advice and support on both policy and operations across the full range of their responsibilities. The minister, or his or her designate, is responsible for communicating in a timely and expeditious manner to the Office of the Ethics Commissioner the names and titles designations of staff members whose employment has terminated or who have transferred out.
Severance pay stays the same, whatever the circumstances of termination; that is, the amounts will be the same for resignation, death, dismissal, lay-off, and retirement. When a person on a minister's exempt staff ceases to be employed, severance pay is calculated at the rate of two weeks' pay based on salary at termination for each year of service.
Calculations are pro-rated in respect of part of a year's service. There is no ceiling on the maximum number of weeks to be paid. Severance payments are to be funded centrally, through Treasury Board Vote 5, as required. For severance purposes, in certain cases ministers may recognize or "transfer in" an exempt staff member's previous service with a member of Parliament's staff or in the Public Service, as described in the Public Service Superannuation Act PSSA.
The exempt staff member must have gone directly from this service to the minister's office in other words, there must not have been a break in service of more than three months. Furthermore, the exempt staff member must not have received severance payment from the House of Commons or from the previous public service employer. If the exempt staff member wants to transfer in previous service, he or she must obtain approval in writing from the minister at the time of hiring.
GUIDE FOR THE GOVERNMENT- CONTRACTOR RELATIONSHIP
The exempt staff member then sends one copy of this approval to the department's pay office and another copy to the House of Commons or to the previous employer. Upon termination of employment, an exempt staff member's severance pay for service as a member of Parliament's staff member or in the Public Service will be one week's pay per completed year of service based on the salary at termination of employment as an exempt staff member as long as the exempt staff member, with the combined service of the previous employer and service with the minister, has fulfilled the requirements of the previous employer to receive severance pay.
For those exempt staff members in their day period, starting November 4,and who transferred in to a minister's office from an MP's office or the Public Service as defined in the PSSA immediately prior to April 1, i.
Severance for this previous service will be calculated at one week's pay per completed year of service as an MP's staff member, at the final salary at termination of employment as an exempt staff member. Employees may not disclose contractor bid or proposal information or source selection information. This is information related to a specific source selection. Releasing intelligence to contractors must comply with AFIRelease of Intelligence to US Contractors, 1 April In addition, government employees are strongly cautioned to identify the true source of information before relying on a document.
Many documents that may appear to be "government" documents may actually be documents drafted by an outside source.
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A good rule of thumb is to always check the source of the document before relying on it. Several questions arise in the area of physical security and its application to contractor personnel: Many of these companies are in direct competition for support contracts. If classified, sensitive unclassified or company proprietary information gets into the 11 wrong hands and one company gains unfair advantage over another, it could result in legal action.
AFIparagraph 5. 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.
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Therefore, security checks should be the responsibility of government employees who are authorized to control the physical premises. As a general rule, it is preferable to have only government employees perform end-of-day security checks; however, situations may arise when contractor personnel may end up accomplishing this activity. Contractor personnel may not be delegated the responsibility for end-of-day security checks unless their contract specifically provides for such delegation.
Before placing an end-o f-day security check requirement in the contract, the multi- functional team should address issues that may arise in the following situations: Ensure you disclose and discuss sensitive information only with those who have a need to know.
Do not include contractor personnel in discussions or otherwise give them access to information if it will violate a law or regulation see restrictions in paragraph 4.
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! Be aware of the environment around you. Do not discuss sensitive information in areas that are not secure e. Do not leave sensitive information in an area where contractor personnel may observe the information i. Proprietary information is releasable to a contractor only if protected by appropriate contract clauses and non-disclosure releases.
Consult your legal counsel if you have questions about releasing sensitive information. Generally legal opinions are protected by client-attorney privilege and are not releasable outside of the government. An attorney's advice is confidential and privileged and only legal counsel has the authority to waive the privilege. In addition, contractors are not entitled to legal advice from government attorneys.
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 provides for such delegation. Keep in mind that in any 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. Legal problems could result if contractor personnel obtained unauthorized access to classified, sensitive unclassified, or company proprietary information.
No such statutory authority covers contractor personnel. The regulations that authorize awards to government employees do not apply to contractor personnel. 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 that 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" must be coordinated with the cognizant contracting officer who will send it to the contractor. The contractor will then present it to the employee.
The contracting officer must ensure, prior to coordination, that 1 the letter of appreciation does not conflict with any CPARs information and the recognition cited does not exceed the scope of the contract. 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.
Through their individual contracts, contractors provide a capability that must be tied to the contract statement of work. Contractor personnel are subject to the laws that apply to all individuals such as briberythe terms and conditions of their individual employment agreements with their employer and with the applicable terms and conditions of their employers' contract with the government.
Under a nonpersonal services contract, the contract employer sets forth the employee's compensation, benefits and rewards. Under this arrangement, it's the contractor's duty to incentives its employees and to increase morale and productivity.
Ultimately, good performance is rewarded by either explicit financial incentives such as an award fee or indirectly by way of positive Contract Performance Assessment Reports CPARwhich gamer future business. Future business may very well come by the extension of the present contract through exercise of an option.
The use of local awards programs for individual contractor personnel performance could potentially undermine the formal regulatory framework for 14 monitoring such performance.
The employee awards program ostensibly rewards superior individual effort. While this appears equitable to the individual, the government ultimately depends on the output of the contractor as one entity. A situation could arise whereby the local contractor personnel are rewarded, but overall the contract performance is inadequate.
In such a situation, a poor contractor CPAR on a specific contract would seem inconsistent with individual employee awards, resulting in confusion and potential litigation. We contract for the overall service, not with the individual contractor personnel.
If individual contractor personnel are rewarded by the government rather than the contractor, it gives the appearance of an improper personal services contract. Do not become involved with the contractor's management of its personnel. Contractors supervise their personnel and we must allow them to decide the best method and forum for rewarding them.
Do not bypass the contractors' management to present "letters of appreciation" directly to individual contractor personnel. Coordinate the "letter of appreciation" with the contracting officer and local ethics official and let the contractor make the presentation to its employee.
Use the contracting officer to ensure consistency in our interactions with the contractor. Although a contractor may be doing outstanding work in one area, the contracting officer may be taking corrective action to resolve deficiencies in other areas of the same contract.
The conflicting signals may confuse the contractor and any outside parties who attempt to resolve the situation. Ensure contract performance is within the scope of the contract. Recognizing a contractor for something above and beyond the tasks we are paying for could result in a claim for additional funds. The question of whether contractor personnel can participate in these activities has caused a great deal of frustration, confusion and concern.
Since contractor personnel are not government employees, the government cannot grant contractor personnel the same duty time activities as government employees. A contractor has a legal right to establish rules of conduct and attendance for its employees. Interfering with these rules may create a liability for which the contractor may claim compensation. Directing or inviting contractor personnel to participate in government employee duty time activities generally interferes with the manner in which a contractor manages its business.
Such direction may transform contractor services from non-personal to personal and is not permissible. A cost is allocable if it is assignable or chargeable to one or more contract cost objectives.
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Simply making such tasks part of the work requirements does not resolve the issue. Fiscal law considerations such as bona fide need, proper purpose of appropriated funds and anti-deficiency issues operate to discourage this option. 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. 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 planning sessions, program management reviews, or other program-related activities. However, adding a requirement in the contract for the contractor to support morale activities sports day, office picnics, golf outings, holiday parties or other like functions is unacceptable.
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.
The contracting officer, considering the terms of the contract and the specific nature of the event, should make 17 the determination as to whether the performance of contractor personnel would be enhanced by attending such a function and an ethics counselor should be consulted. Additionally, the contractor personnel must make arrangements with their contractor supervisor for appropriate leave or other unbillable status under the contract. Care must also be taken neither to permit the contractor to subsidize the DoD event, which would be a gift from a prohibited source, nor to allow government funds to pay for the morale and welfare of unauthorized persons.
While it is commendable to work productively with contractors as part of a team, you cannot ignore your responsibility as a government employee to manage government resources carefully. The overarching ethical principle is to avoid any action that creates even an appearance of violating either the law or ethical standards.
There should be no official encouragement for contractor personnel to leave their workplace to attend a morale building activity. Individual contractor personnel time off, and the nature of the time off e. 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.
Contractor personnel may not be tasked or asked to volunteer to organize morale building events. Before allowing them to "volunteer" to assist and participate, on their "own time" the circumstances should be reviewed with your legal counsel. 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.
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. The contractor supervisor will then work with the government contracting officer to determine the appropriate guidelines and contractor personnel status.
For emergency base closures to include closure due to inclement weatherthe contracting officer should refer to the contract terms and conditions that address government down time. If the contract does not address emergency closures, the contracting officer should permit the contractor to a reschedule the time lost due to base closure; b report to an alternate duty location; or c provide equitable adjustment in accordance with the contract terms and conditions.
When gift issues arise within the governmentcontractor relationship, the rules established for category 1 must apply because contractor personnel are not considered employees under the Joint Ethics Regulation JER. A brief summary of the rules follows: Except as provided in this subpart, an employee shall not, directly or indirectly, solicit or accept a gift: The term does not include an employee of a contractor or subcontractor A gift under 5 CFR b is any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value.
It includes services as well as training, transportation, local travel, lodgings and meals. It does not, however, include certain types of items described further below A prohibited source under 5 CFR d is any person who: This means government employees may not solicit gifts from contractor personnel.
They also may not accept unsolicited gifts from contractor personnel unless specifically authorized under an exception to the gift restriction.
The safest course of action when dealing with any kind of gift is to seek advice from your ethics counselor.