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rios0311

Limitations on Government Vetting Contractor's Employees

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What are the limitations on the Government sitting in on a contractor's interview with prospective contractor employees for a particular contract? Can the Government "approve" or "reject" a candidate for employment with a contractor under a specific contract?

Scenario: Government solicitation includes labor category descriptions for a T&M contract. Solicitation includes minimum qualifications contractor employees are required to have (skills, education, experience, etc...). Contractor invites Government to sit-in during contractor's interview with contractor candidate. Candidate's resume suggests candidate is qualified for employment under a specific labor category based on stated skills and experiences. However, candidate's responses during interview suggest that candidate is unqualified for the labor category.

Is it proper and allowable for the Government tell the contractor that the candidate is unsuitable for the labor category in question?

I'm used to hearing that the Government cannot interfere with the contractor's internal operations. But it would seem to me that if the Government knows that a contractor employee is unsuitable for a category of labor, the Government should be allowed to voice its concerns and request that the unsuitable employee not provide services under the Government's contract with the contractor.

What is the appropriate way of approaching this scenario?

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What are the limitations on the Government sitting in on a contractor's interview with prospective contractor employees for a particular contract? Can the Government "approve" or "reject" a candidate for employment with a contractor under a specific contract?

Scenario: Government solicitation includes labor category descriptions for a T&M contract. Solicitation includes minimum qualifications contractor employees are required to have (skills, education, experience, etc...). Contractor invites Government to sit-in during contractor's interview with contractor candidate. Candidate's resume suggests candidate is qualified for employment under a specific labor category based on stated skills and experiences. However, candidate's responses during interview suggest that candidate is unqualified for the labor category.

Is it proper and allowable for the Government tell the contractor that the candidate is unsuitable for the labor category in question?

I'm used to hearing that the Government cannot interfere with the contractor's internal operations. But it would seem to me that if the Government knows that a contractor employee is unsuitable for a category of labor, the Government should be allowed to voice its concerns and request that the unsuitable employee not provide services under the Government's contract with the contractor.

What is the appropriate way of approaching this scenario?

I will take a bite at this one. I'm sure that someone else can chime in and correct me if I'm wrong.

Is this a contract for services?

If the contract contains minimum qualifications contractor employees are required to have (skills, education, experience, etc...) and the employee meets those qualifications on paper, you might have to wait until the employee performs the service to object. If the employee doesn't meet the requirements under actual performance and the work doesn't conform to the contract requirements, I would think that you can reject the (services?), pursuant to the clause 52.246-6 -- Inspection -- Time-and-Material and Labor-Hour. The Contractor must also inspect the work under this clause.

If this were a construction contract, then the clause 52.236-5, Material and Workmanship, allows the KO to require removal of any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable. I would say that the KO could reject somebody that he/she determines wouldn't be competent, assuming that there is a valid basis for the objection.

"(c ) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable."

I will admit that I'm not an expert in administration of service contracts. But the contract should contain some type of quality standards - especially if it as a time and material type. What controls quality of performance or resasonabloe amount of time spent performing a task under T&M? Standards in the Statement of Work?

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In addition to what I said above, you can always voice your concerns to the Contractor and advise that you expect it to inspect that person's work and that you will avail the government of all of its rights under the Inspection clause, should the employee be deemed less than competent during performance.

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I would not recommend sitting in on job interviews, or being involved in the contractor's hiring process. Your agency might wind up being considered a "joint employer" and thus subject to potential liability for Title VII claims under the Civil Rights Act. See, for example, Harris vs. Attorney General of the United States at: http://www.fedsmith.com/articles/records/file/04-220-3harrisvag.pdf. It is a DC District case, but is illustrative of what can happen when an agency gets into the HR business with respect to contractor employees.

There is certainly nothing wrong with specifying certain qualifications in your work statement, and there is nothing wrong with notifying the contractor when the Government believes that the contractor has not complied with the requirements of the contract in that it might have supplied personnel lacking appropriate qualifications (and taking appropriate action under the contract should the contractor fail to correct the situation). However, the Government should not get involved in hiring and termination decisions.

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If the contract is a performance based service contract, then it shouldn't have been written to specify, "minimum qualifications contractor employees are required to have (skills, education, experience, etc...)". In fact, if it is an IT services contract (which we don't know if it is or not), FAR 39.104 states that contracts for those types of services, "must not describe any minimum experience or educational requirement for proposed contractor personnel", with a couple of exceptions. Certifications (professional certs, etc.) would be a different issue however. In all of my training regarding performance based service contracts I was taught the contracts should be written to focus on the (measurable) outcomes, and not the manner in which the work should be performed. The onus to provide employees who can meet the performance outcomes required should be on the contractor. In a nutshell the contractor is staking their reputation on providing employees who can meet the performance objectives and outcomes. If they hire employees who cannot, then that should be documented in their past performance record. I know there are a lot of instances where the government is part of the interview process for contractor employees, but I have also been a part of one agency that strictly prohibited that.

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Guest Vern Edwards

What are the limitations on the Government sitting in on a contractor's interview with prospective contractor employees for a particular contract? Can the Government "approve" or "reject" a candidate for employment with a contractor under a specific contract?

I know of no limitations. It is not illegal and not necessarily inappropriate for the government to sit in on an interview and express an opinion. The government can approve or reject a candidate based on contract requirements. If the government rejects a candidate the contractor should request that in writing.

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It is not uncommon for my firm to seek Government concurrence on the strong candidates we identify for positions on engineering services contracts. We are not contractually required to do this, but it serves the interests of providing the customer with the solution that best suits their needs.

Even if this is done at the insistence of the Government, I doubt it would have offended the contractors I have worked for.

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We have contracts that require the contractor to conduct an oral board intended to stress the candidate and our rep sits in. If he thinks a candidate may not be as good as his resume states or shakier than his psycological test shows, he will strongly suggest the company HR reject the candidate. Our contractors carry weapons and advise high level foreign officials so we have to be certain of thier abilities and mental state before they deploy.

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