CONTRACTORS IN THE FEDERAL WORKPLACE

1
CONTRACTORS IN THE FEDERAL WORKPLACE
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL
2
INTRODUCTION

• Contract employees are not federal employees
• Safeguard proprietary, Privacy Act, and other
  sensitive information
• Resolve possible conflicts of interest

3
INTRODUCTION

• Beware of gifts between contract employees and
  federal employees
• Post-government employment discussions need to be
  carefully vetted
• Dont let contractor/employee issues fester

4
CONTRACTORS ARE NOT FEDERAL EMPLOYEES

• No employer-employee relationship between federal
  and contractor employees.
• Relationship is between govt and contractor not
  govt and contract employees.
• Only contracting officer can modify the contract.
• Do not direct any work, especially out-of-scope
  work fine line between coordination and
  direction.

5
CONTRACTORS ARE NOT FEDERAL EMPLOYEES

• Federal employees do not supervise contract
  employees.
• Federal employees cannot approve contractor
  employee leave, approve weather delays, and does
  not give contractor employees appraisals or
  awards.
• Contracting Officer Representatives (CORs) will
  communicate any issues to Contracting Officer
  CORs must know the contract.

6
CONTRACTORS ARE NOT FEDERAL EMPLOYEES

• Contractors cannot perform inherently
  governmental functions.
• Some examples are
• direct conduct of criminal investigations
• command of military forces
• direction and control of federal employees
• determining agency requirements and
• determining agency policy.

7
CONTRACTORS ARE NOT FEDERAL EMPLOYEES

• Identify contractor employees.
• Be able to distinguish badges or other
  identifier.
• Govt employees should be aware of the different
  status and identify contractors in
  teleconferences and meetings.

8
SAFEGUARD SENSITIVE INFORMATION

• Protect classified informationenough said.
• Procurement Integrity Act prohibits disclosure
  and obtaining source selection information or bid
  or proposal information.
• Applies to present/former govt employees and
  contractors.
• Individuals face up to five years confinement,
  fines up to 50,000 per violation, and adverse
  personnel action.

9
SAFEGUARD SENSITIVE INFORMATION

• Source selection information is
• Bid prices
• Proposed costs or prices
• Source selection plans
• Technical evaluation plans
• Technical evaluation of proposals
• Costs or price evaluations of proposals

10
SAFEGUARD SENSITIVE INFORMATION

• Competitive range determinations
• Rankings of bids, proposals, or competitors
• Reports and evaluations of source selection
  panels, boards, or advisory councils and
• Other information marked as Source Selection
  Information.

11
SAFEGUARD SENSITIVE INFORMATION

• Privacy Act prohibits disclosure of Privacy Act
  information.
• Applies to govt employees.
• An individual faces conviction of a misdemeanor
  and a fine up to 5K.

12
SAFEGUARD SENSITIVE INFORMATION

• Trade Secrets Act, in part, prohibits the
  disclosure and receipt of trade secrets.
• Applies to everyone.
• Individuals face up to 500K in fines or up to
  ten years confinement (harsher when benefitting
  foreign govt or agent), and adverse personnel
  action.

13
RESOLVE POSSIBLE CONFLICTS OF INTEREST

• Prevent the existence of conflicting roles that
  might bias a contractors judgment.
• Prevent unfair competitive advantagewhen
  contractor competing for award of a contract
  possesses other contractors proprietary
  information or source selection information
  relevant to contract but not available to all
  competitors that would assist contractor in
  obtaining contract.

14
CONFLICT OF INTERESTCONFLICTING ROLES

• Before an acquisition for information technology
• (IT) is conducted, Company A is awarded a
• contract to prepare data system specifications
  and
• equipment performance criteria to be used as the
• basis for the equipment competition.
• With regard to the equipment competition, does a
• possible conflict of interest exist?

15
CONFLICT OF INTERESTCONFLICTING ROLES

• Since the specifications are the basis for
  selection
• of commercial hardware, a potential conflict of
• interest exists. Company A should be excluded
• from the initial follow-on IT hardware
  acquisition

16
RESOLVE POSSIBLE CONFLICTS OF INTEREST

• Resolve both real and appearances of conflicts of
  interest, for example,
• Close relationships between govt employees
• and contractor employees and
• Govt employee on source selection evaluation
  team has financial interest in offeror
  contractor.
• Violation of any principle of the 14 Principles
  of Ethical conduct is grounds for an adverse
  personnel action.

17
GIFT RULES

• Do not solicit or accept gifts from contractor
  employees.
• Exceptions
• Gifts (not cash) up to 20/occasion 50/year
• Based on personal relationship and
• Widely attended gathering there will be explicit
  guidance when this can be used.

18
Post-Govt Employment

• Dont begin post-government employment
• discussions with contractors until you talk to an
• Ethics Counselor at JA
• New DoD reqt for post-govt employment education
  and certification.
• Federal criminal statutes can apply to military
  officers and civilians if they fail to follow the
  rules.
• Ask for advice early.

19
Here comes the fun part
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL
20
NATIONAL GUARD BUREAUOFFICE OF THE CHIEF COUNSEL

• EXERCISES

21
BACKGROUND

• NGBs Office of Miscellaneous Affairs (NGB-XYZ)
  is re-competing its support service contract.
• IDIQ, 5 Years, gt 100,000,000 per year.
• Supports virtually all NGB-XYZ functions.
• KNOWALL, Inc. is incumbent.
• WANNABE, Inc. wants the new contract.

22
THE PHANTOM BRIEFER

• COL Hardcharger, PM for the support contract,
  tasks KNOWALLs marketeer, Mr. Icandoit, to
  brief General Getsued Daily on a concept plan to
  increase NGB-XYZs mission (which will also
  increase KNOWALLs support contract).
• Mr. Icandoit conducts the briefing but does not
  identify himself as a KNOWALL employee.
• The briefing convinces General Daily to double
  the size of the NGB-XYZ mission.
• Has Mr. Icandoit violated any laws?

23
THE PHANTOM BRIEFERTHE BOTTOM LINE

• Mr. Icandoit may brief NGB-XYZs plan to expand
  its mission since the IDIQ contract is broadly
  written to cover this activity.
• Mr. Icandoit did not violate any laws, BUT...
• COL Hardcharger should have introduced Mr.
  Icandoit as an KNOWALL employee to all attendees
  at the outset of the briefing
• Mr. Icandoit may not prepare or brief the
  acquisition strategy for the ESS procurement
  since such activity will result in an OCI problem
  and an unfair competitive advantage.

24
THE LEAK

• Mr. Gooddeal, a NGB-XYZ employee, and Mr. Wally
  Street, a KNOWALL employee, were not involved in
  the source selection process but overheard a
  conversation between two SSEB members.
• They heard that KNOWALL won the follow-on
  contract which will not be publicly announced
  until noon tomorrow.
• They immediately called their brokers and
  purchased 1000 shares of KNOWALL stock at 10 per
  share.
• After the award is announced the next day,
  KNOWALLs stock jumps to 20 per share giving
  both shrewd investors a tidy profit.
• Is there anything wrong with this?

25
THE LEAKTHE BOTTOM LINE

• The leak of sensitive information is a risk with
  contractors in the Federal workplace.
• Create an awareness of the need to safeguard
  sensitive information.
• Ensure that Government employees know who the
  contractor employees are.
• Keep co-location of Government and Contractor
  personnel to a minimum, especially in areas where
  sensitive information is present.

26
NGB-XYZ EMPLOYEE PICNIC AND ORGANIZATION DAY

• It is that time of the year for the NGB-XYZ
  Employee 1st Annual Picnic.
• LTC John Doe recommends that the NGB-XYZ CG
  invite all NGB-XYZ contractor employees to the
  picnic. After all, they are part of the NGB-XYZ
  family and should participate and enjoy the
  work-day off with the NGB-XYZ employees.
• Should the NGB-XYZ CG invite all contractor
  employees to participate in the picnic and
  organization day activities with the NGB-XYZ
  employees?

27
NGB-XYZ EMPLOYEE PICNIC THE BOTTOM LINE

• Although better to limit participation to NGB-XYZ
  employees, it is okay to permit KNOWALLs
  employees to attend the picnic, but
• It is up to KNOWALL as to whether they get time
  off and how
• We dont pay for services not provided
• We dont solicit KNOWALL employees when
  fundraising
• We dont subsidize KNOWALL employees.

28
THE LEVEL PLAYING FIELD

• Because of its incumbent status and because it
  routinely overhears nonpublic information from
  NGB-XYZ personnel, only KNOWALL fully understands
  the complex work described vaguely in the RFP.
• KNOWALL has five years of cost performance
  reports that show trends for the future.
• The NGB-XYZ CDR and her staff are totally
  satisfied with KNOWALLs outstanding work.
• WANNABE wants to unseat KNOWALL, but feels that
  it is at a significant disadvantage.
• Does KNOWALL have an unfair competitive advantage
  in the upcoming re-competition?

29
THE LEVEL PLAYING FIELDTHE BOTTOM LINE

• KNOWALLs advantages derived from its experience,
  resources, or skills obtained in the performance
  of its current NGB-XYZ contract are not unfair.
• But advantages derived from an inequitable
  release of information to KNOWALL or from an
  ambiguous RFP are unfair, jeopardizing the
  viability of the award and the integrity of the
  Federal procurement system.

30
ALL IN THE FAMILYDOES SPOUSAL EMPLOYMENT
MATTER?

• Susan, a KNOWALL technical expert, is assigned by
  her employer to help SSEB members evaluate
  proposals on a NGB-XYZ RFP for a new hi-tech
  navigation system.
• Someone knows her husband, and says that he works
  for one of the offerors as their Vice-President
  for Government Operations.
• Do the conflicts of interest rules prevent Susan
  from providing this technical assistance to the
  SSEB?

31
ALL IN THE FAMILY THE BOTTOM LINE

• Generally, conflict of interest laws and the
  Joint Ethics Regulation do not apply to
  contractor employees.
• Support contract should require disclosure and
  avoidance of potential conflicts.
• Susan may help the SSEB if no organizational
  conflict of interest and if she signs a
  non-disclosure agreement.
• But, Susan should not consult if her husband is
  employed by one of the offerors.

32
WHOS GUARDING THE CHICKEN COOP?

• KNOWALL is tasked to perform work requiring
  access to the proprietary technical data package
  (TDP) for the hi-energy navigation system (HENS).
• All of NGB-XYZs TDPs are stored in an electronic
  database. COL Hardcharger assigns KNOWALL a
  password to enter the database.
• COL Hardcharger, recognizing that the database
  contains proprietary TDPs of numerous
  contractors, orders the KNOWALL employees to
  access only the HENS TDP and not reveal its
  contents to anyone outside the Government.
• Has COL Hardcharger adequately protected the
  database (or has he let the fox into the chicken
  coop)?

33
WHOS GUARDING THE CHICKEN COOP?THE BOTTOM LINE

• Government may not give support contractors
  access to proprietary information unless
  proprietary owner consents.
• Contractor and its employees should sign
  nondisclosure agreements.
• Access should be limited--no carte blanche
  access.

34
CONTRACTOR LARGESSE DIFFERENT RULES FOR
DIFFERENT FOLK

• About to retire, COL Hardcharger, PM for the
  support contract, invites his employees to dinner
  at his house. Mark, a KNOWALL employee, who
  has no personal relationship with COL
  Hardcharger, brings a 22 bottle of wine.
• Mark invites COL Hardcharger and his wife for
  drinks dinner at his favorite restaurant.
• COL Hardchargers XO solicits contributions from
  everyone for his retirement gift (a 250
  briefcase). Mark contributes 25.
• May COL Hardcharger accept Marks gifts?

35
CONTRACTOR LARGESSE THE BOTTOM LINE

• COL Hardcharger may not accept the wine the
  value exceeds 20 and no other exception applies.
• COL Hardcharger may not accept the invitation
  from Mark for dinner at his favorite restaurant.
• XO may not solicit gifts or contributions to
  gifts from outside sources, e.g., contractor
  employees.

36
THE OPPRESSIVE PM

• COL Hardcharger routinely directs KNOWALLs
  design engineer, Mr. Meek, to perform tasks that
  are beyond the scope of the contract.
• Mr. Meek is afraid to object to the contracting
  officer because COL Hardcharger has threatened to
  give KNOWALL an adverse past performance report
  (past performance will be a significant
  evaluation factor in the follow-on competition).
• COL Hardcharger required Mr. Meek to work
  uncompensated overtime on slides for his wifes
  save the whales presentation.
• Is COL Hardchargers conduct improper?

37
THE OPPRESSIVE PMTHE BOTTOM LINE

• Dont require performance outside the contract
  scope -- keep CO in the loop.
• Dont supervise contractor employees or risk
  improper personal services.
• Dont let contractor employees perform inherently
  governmental functions.
• Dont use government contractors for personal
  benefit.

38
THE DATING GAME

• LTC Megabyte is the new NGB-XYZ Information
  Manager.
• He is dating Jane Data, the KNOWALL employee
  responsible for Information Management support.
• The Information Management COTR works for LTC
  Megabyte and is responsible for a number of
  KNOWALL task orders, and the Information
  Management part of the upcoming re-competition.
• Must LTC Megabyte stop dating Jane Data?

39
THE DATING GAME THE BOTTOM LINE

• No, but
• LTC Megabyte should not participate in any
  contract issues, including the follow-on
  contract.
• LTC Megabyte should not rate COTR.
• LTC Megabyte should issue a written notice of
  disqualification.
• Commander might want to select someone else as
  Information Manager.

40

• QUESTIONS?