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  1. It is typical for government employees to get accustomed to on-site contractor staff, especially when they've been providing services under contract for an extended period of time. By extended, I mean at least one year. And I'm not referring to non-exempt contractor employees covered by the Service Contract Act. I'm specifically referring to exempt employees with formal educations, extensive experience and training; i.e., professionals. Executive Order (EO) 13495, “Nondisplacement of Qualified Workers Under Service Contracts,” signed by President Obama on January 30, 2009, became effective on January 18, 2013 and the associated clause has made it into the FAR (FAR 52.222-17). I think part of the rationale behind this new statute is simply to keep people who have jobs employed. I don't foresee this being terribly problematic for the incumbent contractor for several reasons. For example: 1. Per the clause, the incumbent has the option to retain its employees; 2. The cost and effort required to recruit and train a non-exempt employee is likely lower than the cost and effort required to recruit and train a professional; e.g., software engineer, business consultant, etc...; and 3. Often times the contractor has no work for its employees once a contract ends. However, I'm working on re-competing several follow-on contracts for services that require non-exempt contractors (mostly IT). Each of the customers I'm working with has stated that they wish to keep the current contractor staff in place even if the soon-to-end contract is awarded to a different contractor. They say that the learning curve is steep and that training will take months. I'm used to hearing this. In order to address this, language such as the one that follows has begun to appear in some of our solicitations. I believe it was drafted by an attorney: RIGHT OF FIRST REFUSAL The Contractor and its Subcontractors shall in good faith offer those employees (other than Key Personnel) employed under the predecessor contract whose employment will be terminated as a result of the award of this contract, a right of first refusal of employment under this contract in positions for which the employees are qualified. In evaluating proposals one of the things we consider is an offeror's staffing plan. With this language in the solicitation we would consider it a plus if their staffing plan includes retention of the current staff. My concern, and the reason for this topic, is that I'm not sure that we should be doing this on a service contract for professional services. At least not the way I'm seeing it done. In contracts covered by the SCA both the incumbent's contract and the successor's contract contain the appropriate language. So both parties are aware of this and no one can claim wrongdoing or poaching. But in my scenario, the predecessor contractor has no knowledge that we're requiring (see use of the word "shall" in the italicized language above) potential successors to try to poach employees from the incumbent contractor. The word "poach" may be too strong, but I'm trying to illustrate my point. I can see were this is fine if the contractor has no use for these individuals after the contract ends, but generally this type of employee is considered a valuable asset to a business. A business may need these individuals who possess specialized knowledge and education for other projects. Without them, their proposals may not be as strong. To lose their intellectual capital at the behest of the government with no forewarning could spark some anger at the least. Is this simply the nature of the game, or are there ethical or legal issues that we haven't considered? If we're including this language in solicitations, should we notify incumbent contractors that we're requiring this of offerors? I don't have the answer to these questions, so I'd like to hear some different point of views before including this language in my solicitations.
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