Scenario: Does it cross the personal services line?

[KeithB18]

The following scenario occured in my agency. I would like the community's thoughts on whether the scenario could be considered personal services or inherently governmental (FAR 37.104/7.5).

The Senior Executive (Also HCA) of a group of approximately 50 Federal employees held an "All-Call" that included approximatley 25-35 contractors. (Total of ~80 people) There was no distinction on the schedule invitation--everyone was listed as "mandatory." The meeting discussed the group's vision statement, mission statement, and annual goals. Additionally, ideas for ways to further the mission/vision were solicited. It lasted two hours and included vocal opinions from multiple contractors and Feds.

I came away from the meeting thinking that we had stepped over the personal services line by creating an "employer--employee relationship" with the contractor staff. I also think that including them in that meeting may have performed inherently governmental functions (7.503© (5), (6) & (16)).

Some other pertinent facts:

- The contractors perform on site with equipment furnished by the government.

- Other agencies may use civil service personnel for similar services.

- Services, via option, last beyond 1 year. (many of the contractors have been onsite for many years)

- Government directly or indirectly exercises supervision of the contractors.

I made my position clear to the Executive in question but there is still some disagreement on the issue. So what say you? With the stated facts, was the meeting the type of thing that pushes it into the personal services category?

For further discussion, the requirements of the A-76 circular and the prohibition of personal services contracting seems to create a tightrope for contracting professionals to walk. (Contract out as many commercial services as possible but make sure you don't create employee-employer relationships!) What's your view on that?

[Retreadfed]

What is your rationale for thinking that attending the meeting may have resujlted in a personal services contract and that it involved performance of an inherently governmental function?

[David Bodner]

Why do we always conflate personal services with inherently governmental? Aren't they two different things?

In my cynical mind, Keith's scenario (with or without the meeting) probably crosses the line. On the other hand, that line is so blurry that any claim to being able to recognize exactly where it is is questionable. Keith brought up the issue with his management. That was the right thing to do. Now Keith has to determine where his organization's culture draws the line and try to apply it that way in the future.

[KeithB18]

What is your rationale for thinking that attending the meeting may have resujlted in a personal services contract and that it involved performance of an inherently governmental function?

I think that requiring contractors to attend a meeting that was far outside of their scope of work and that touched on division strategy created or created the impression of a personal services relationship between those contractors and my agency. Additionally, though I am not as sure of this one, I think that the contractors could have participated in what are considered inherently governmental functions at that meeting--those functions listed at the FAR citation I listed above.

Also one note--A-76 was halted in 2009. I mean the legacy of years of outsourcing commercial services.

[Guest Vern Edwards]

Requiring contractor personnel to attend the meeting and listen to the blowhard was not enough to make their work personal services, nor was allowing them to participate in the discussion.

What makes work personal services is when the service recipient (employer) tells the service provider (employee) when, where, and how to do the work and with what tools and then directs the service provider in the details of task performance.

It's nonpersonal services when the service recipient (customer) specifiers what's to be done and leaves it to the service provider (contractor) to decide when, where and how to do the work and lets the service provider do the work without detailed direction.

The boundary is fuzzy. The distinction between personal and nonpersonal services is not always crystal clear.

It is the relationship between the service recipient and the service provider that determines whether or not services are personal services, not the content of the work, i.e., inherently governmental versus non inherently governmental.