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ddoggett

Contracts vs. Civil Service Employees

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First, I find it idiotic for Contracting Officers to accept the guidance of “well, we have always done it that way”. That said, my agency has an issue regarding the use of contractors rather than Civil Service employees to fill a vacant position. The agency has several hard to fill positions (mostly medical) and have exhausted all recruiting efforts to hire individuals under OPM guidelines. Therefore, in certain situations, the agency wishes to fill this void with a non-personal service contract. However, the response from several Contracting Officers has always been that this practice is illegal. The agency would be filling a Civil Service position with a contractor. The only avenue for the agency is to eliminate the Civil Service position from the staffing inventory and then solicit and award a non-personal service contract for the position. This has been the standard response for as long as I can remember.

However, after careful research, I find nothing that supports this interpretation. FAR 37.104 is very clear that personal service contracts cannot be used to circumvent civil service laws. However, the FAR is silent regarding the use of non-personal service contracts. Therefore, it is my interpretation…….if the performance work statement can be written where the duties/responsibilities of the contractor clearly fit within the framework of a non-personal service contract, the agency can use a contractor to fill this need.

Is my interpretation inaccurate?

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I don't agree it is "illegal", but FAR 37.112 does address this issue by refering you to 5 CFR 300 Subpart E. Here you will see that there is a time limit that these non-personal services can be used (max of 240 days). You didn't mention your agency, but the DFARS does have an authorization for personal services for health care (237.104), perhaps your agency supplement has something similar.

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I believe many agencies including those under DoD supplement their work force with various temp staffing arrangements, many using the GSA MOBIS schedule, so I am not sure where anyone can say it is illegal. http://www.gsaelibrary.gsa.gov/ElibMain/sinDetails.do?scheduleNumber=874&specialItemNumber=874+6&executeQuery=YES

874 6 Acquisition Management Support Contractors shall provide professional support services to agencies in conducting federal acquisition management activities. Services covered by this SIN are: acquisition planning assistance, including market research and recommending procurement strategy: acquisition document development, including cost/price estimates, quality assurance surveillance plans, statements of work, synopses, solicitations, price negotiation memoranda, etc.: expert assistance in supporting proposal evaluations, including price/cost analysis or technical proposal analysis: contract administration support services, including assistance with reviewing contractor performance, developing contract modifications, and investigating reports of contract discrepancies: contract close-out assistance; Competitive Sourcing support, including OMB Circular A-76 studies, strategic sourcing studies, privatization studies, public-private partnerships, and Federal Activities Inventory Reform (FAIR) Act studies. Inherently Governmental services as identified in FAR 7.503 or by the ordering agency are prohibited under MOBIS. It is the responsibility of the Contracting Officer placing the order to make this determination. Ordering activities must require prospective contractors to identify potential conflicts of interest and address those, prior to task order award. For more information, see www.gsa.gov/mobis.

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Having had the experience of being involved in such acquisitions I do want to pose a couple of thoughts. Has your research specifically included conversations with your human resource folks? Sometimes I have found where program folks with the needs have a disconnect with HR and all the intricacies of OPM rules and regs (example the reference to 5 CFR in the FAR). Experience with one agency was that HR had to sign off on temp need requests from program folks before acquisition could carry the effort to contract forward. And, with no intent to complicate or even imply that your situation is applicable but consideration may need to be given to FAR Part 7.3 which again in my experience brought HR into the picture with regard to agency inventories related to inherently governmental and associated considerations.

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The answer to any of the COs who say hiring a contractor when a civil service position is unfillable or that hiring a contractor to fill a medical position is this: cite your law/regulation or keep your opinions to yourself. I know of at least one DoD installation that hired medical personnel on both a personal services basis and on a non-personal basis: Ft Benning's Martin Army Community Hospital.

In non-medical offices, every organization that I have worked in has had at least some contractor personnel filling a postition that could be filled by a civil service employee. One of those office had contractors working in Contract Specialist positions. In my current office there are hundreds of contractors working next to civil service employees, and in some cases they are doing the exact same jobs.

DHS is sensitive to this situation, and has established a program to reduce the number of contractors working in "inherently" government positions, but the upcoming (April 7, 2013) hiring freeze will do little to assist the agency in that task. DoD is also trying to get a handle on the problem from what I have heard, but they are probably in a worse situation than DHS right now. In many cases, its either have a contractor fill a position or do without altogether due to the hiring freeze or lack of applicants who are qualified.

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It drives me crazy when someone writes in saying that someone told them that something is illegal and they would like to know if it's true.

The agency has several hard to fill positions (mostly medical) and have exhausted all recruiting efforts to hire individuals under OPM guidelines. Therefore, in certain situations, the agency wishes to fill this void with a non-personal service contract. However, the response from several Contracting Officers has always been that this practice is illegal... However, after careful research, I find nothing that supports this interpretation.

What should be obvious to all, but apparently is not, is that when someone tells you that something is illegal, you should tell them to cite chapter and verse: a statute, a regulation, and/or an official statement of agency policy. If the person cannot cite a source for his or her assertion, that does not mean that the the action would not be illegal, but it means that the person who told you that it would is professionally unreliable and/or ignorant and that you have no reason to believe them. You should tell them that to their face (unless, of course, the person is your superior). Maybe they won't offer you b.s. assertions from then on.

When you doubt the legality of an action that you want to take, don't ask co-workers who cannot back up what they say, don't rely on your own research unless you have good legal research skills, and don't ask strangers at a website (unless your interest is purely a matter of personal curiosity). Instead, ask your agency's attorney. That's what they are there for. Many agency attorneys are overworked and won't give you the time of day. In that case, go to someone in your office who has sufficient authority to require an answer within a reasonable time. But the same rule applies to attorneys: Don't take their word for it. Make them show you through facts and sound reasoning.

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All,

To answer some of your questions,

1. We are a civilian agency, not DoD.

2. Within the agency, there are civilian service employees and contractors performing the same duties. Quick example, agency staffing guideline includes two (2) Dental Hygienist. However, the medical need requires an additional Dental Hygienist. Therefore, a non-personal service contract is solicited and awarded for an additional Dental Hygienist.

3. To Vern’s last comment……..My thought process for the original post was to see if other fellow Contracting Officers have had a similar experience. If yes, I would value the opinion/comment. If no, ignore the question. I have used Wifcon on numerous occasions while researching an issue and found it to be a valuable asset. I am not going to utilize the services of this website just for giggles and grins. Therefore, I apologize if my question annoyed you. At the request of a superior, I was simply researching an issue that has been a question mark in my mind and several other CO’s in my agency for many years.

That said, I understand the use of private sector temps as outlined in FAR 37.112. However, the medical personnel are needed to fill a permanent need, not on an intermittent basis. I do agree with you that it is time to take the next step and request assistance from our commercial law branch. This question has lingered too long with no one within the agency knowing what is the correct answer

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This question has lingered too long with no one within the agency knowing what is the correct answer.

The questions involved in this matter entail statutory and regulatory research and interpretation of which few COs are capable. The solution is simple: Take the purchase request to legal and ask for a written opinion as to whether the acquisition is permissible. That is the only way to know whether the acquisition would comply with all laws and regulations. That's what the counsel is there for. If they won't provide the requested opinion, ask your boss for confirmation that the acquisition is legal and document the file. The CO is personally responsible for anything he or she signs: See FAR 1.602-1(B). Protect yourself. Get professional legal advice or written direction from a superior and document the file. "Asking around" is not good enough.

If you are not sure that a contracting action is legal, then you are a fool to sign it.

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It is only because I listened to Vern's advice many years ago that I have been able to shut a lot of folks down when they start talking out of the sides of their heads. I've also incurred the spurious title of the "researcher" because I actually take the time to research and consult with my legal staff on a regular basis before assuming anything.

I'm sure things like this happen in the private sector, but, I too, like Vern get so aggravated when it happens in government service. UUGGHH! Dang it I'm a Contracting Officer. The FAR says "I" am responsible, therefore, "I" will research an issue to my satisfaction and no one elses. If in the end my judgement is found to be incorrect then I'll take it as a lesson learned. When I first entered government service I worked for a crotchety old Senior Chief in the Navy. His advice to me was to learn your regulations and policies inside and out. If it pertains to the government it is written in black and white your job is to find it. Luckily I'm a reader so researching doesn't bother me. I'm also humble enough to consult with others that are a lot smarter than I am when making important decisions.

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I believe many agencies including those under DoD supplement their work force with various temp staffing arrangements, many using the GSA MOBIS schedule, so I am not sure where anyone can say it is illegal.

If I understand your point, Biz Man, you are saying that the fact that something is done by many is an indication that it is not illegal.

If I understood you correctly, then I must disagree.

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@Brian - - Not what I was trying to relay in my comment, more to the point that the avenue to award a "non-personal" temp service contract is legal and that contracting is one of those areas it can be done, showing that via the GSA schedule. I would insert that contractors are for administrative work and not contracting officer authority work, as I believe that area is still "inherently governmental" with signatory authority and not passed to contractor staff.

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