Contractor Employees in the Workplace (AMC Panel)

Journal of Power and Ethics, January 2001 | Go to article overview
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Contractor Employees in the Workplace (AMC Panel)


I. Introduction.

A. They're Everywhere!

1. Always have been.

2. But even more so!

B. They're Different!

1. A fact;

2. Different rules for different folk;

2. But, does not mean adversity.

C. But, we need to recognize that their presence in the workplace create issues -- many of them ethical, but others are fiscal, contract, and personnel in nature:

1. Information

2. Gifts

3. Government Resources

4. Conflicts of Interest

5. Appearances of Conflicts

6. Personal Services

7. Interference with Contractor's

a. Performance of contract

b. Employer-employee relationship

c. Conduct of business!

D. Problems in dealing with issues:

1. People to people relationships (nice guys).

2. Inclusiveness.

3. Family, teaming, partnering.

II. Keys to Resolving Issues.

A. Contractor employees are not Federal employees.

1. Different loyalties.

2. Different rules apply.

B. The relationship is with the contractor, not with the contractor's employees.

1. We do not supervise employees.

2. We do not approve leave, sick leave or other absences of the contractor's employees.

3. We are not responsible for the contractor's employee's training, off-site activities, performance appraisals, awards and other recognition.

C. This relationship is defined by the contract:

1. What services the contractor is supposed to provide, under what terms, how fast, where and in what format.

2. What equipment, supplies, services, training, etc. that we are supposed to provide to the contractor.

D. Avoid paying twice:

1. The contractor is supposed to recruit, establish, train and maintain a workforce (employer-employee relation).

2. The contract price includes what it includes...

III. Non-Public Information.

A. FAR Parts 3, 14, 15, and 24.

B. Section 4304, National Defense Authorization Act for FY 1996, aka "Clinger-Cohen Act" as implemented by Federal Acquisition Regulation (FAR) 3.104, 61 Fed. Reg. 226, January 2, 1997, effective January 1, 1997 (Procurement Integrity).

1. RULE: Shall not knowingly disclose procurement information before the award of the Federal agency procurement contract to which it relates.

RULE: No one shall knowingly obtain such information before award of the Federal agency procurement to which it pertains.

a. Applies to:

(1) Present or former officer or employee

(2) Anyone who acted on behalf of the US or advised the US with respect to a Federal agency procurement, and

(3) Had access to bid or proposal, or source selection information.

2. Definition -- Procurement information is:

a. Contractor bid or proposal information (used to be "proprietary information") --

(1) Cost or pricing data;

(2) Indirect costs and direct labor rates;

(3) Proprietary information;

(4) Information marked by the contractor as "contractor bid or proposal information."

b. Source selection information:

(1) Bid prices before bid opening;

(2) Proposed costs or prices;

(3) Source selection plans;

(4) Technical evaluation plans;

(5) Technical evaluations of proposals;

(6) Cost or price evaluations of proposals;

(7) Competitive range determinations;

(8) Rankings of bids, proposals, or competitors;

(9) Reports and evaluations of source selection panels, boards or advisory councils.

(10) Other information marked as "SOURCE SELECTION INFORMATION--See FAR 3.104."

3. Penalties for violation:

a. Criminal violations under Procurement Integrity:

(1) 5 Years, fines, or both;

(2) If exchanged information for anything of value or trying to get or give a competitive advantage.

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