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FAR 3.601 prohibits award to offeror who is a federal employee - protocol?

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FAR 3.601 prohibits award to an offeror who is a federal employee. But how is the CO supposed to know whether an offeror is a federal employee or not?

And does anyone know of an agency-issued clause that encompasses this scenario, where the offeror is a federal employee?

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Read FAR 3.601( a ). It says, in pertinent part, "...a contracting officer shall not knowingly award a contract to a Government employee..."

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That is true, it says "knowingly." And there is in fact a GAO decision on this where GAO denied a protest because the CO did not "knowingly" award to a federal employee, so the award was fine. There might be an ethics violation on the part of the federal employee, but from a contract award perspective, the CO did not violate any applicable rules.

However, for best practices, one could argue that it would be in the agency's best interest to avoid as much as possible getting into a situation where the evaluators are having to consider proposals by offerors that are owned by federal employees.

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There is no mention of "federal employee" in FAR Subpart 3.6. FAR Subpart 3.6 is a prohibits a contract with a Government employee.

GAO Decision B-408477, Metro Offices, Inc., Sep. 27, 2013, makes zero mention of federal employee and 20 mentions of government employee.

But GAO Decision B-407215, TranLogistics, LLC, Nov. 30, 2012, isn't as precise. It has four mentions of federal employee, three mentions of federal government employee, and one mention of government employee.

I don't think you'll find a definition -- I think it will be self-evident.

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3.601 (b For purposes of this subpart, special Government employees (as defined in 18 U.S.C. 202) performing services as experts, advisors, or consultants, or as members of advisory committees, are not considered Government employees unless—

(1) The contract arises directly out of the individual’s activity as a special Government employee

(2) In the individual’s capacity as a special Government employee, the individual is in a position to influence the award of the contract; or

(3) Another conflict of interest is determined to exist.

18 U.S.C. 202 "definition"

(a) For the purpose of sections 203, 205, 207, 208, and 209 of this title the term “special Government employee” shall mean an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis, a part-time United States commissioner, a part-time United States magistrate judge, or, regardless of the number of days of appointment, an independent counsel appointed under chapter 40 of title 28 and any person appointed by that independent counsel under section 594© of title 28. Notwithstanding the next preceding sentence, every person serving as a part-time local representative of a Member of Congress in the Member's home district or State shall be classified as a special Government employee. Notwithstanding section 29© and (d) 1 of the Act of August 10, 1956 (70A Stat. 632; 5 U.S.C. 30r© and (d)), a Reserve officer of the Armed Forces, or an officer of the National Guard of the United States, unless otherwise an officer or employee of the United States, shall be classified as a special Government employee while on active duty solely for training. A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203 and sections 205 through 209 and 218. A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is serving involuntarily shall be classified as a special Government employee. The terms “officer or employee” and “special Government employee” as used in sections 203, 205, 207 through 209, and 218, shall not include enlisted members of the Armed Forces.

( B) For the purposes of sections 205 and 207 of this title, the term “official responsibility” means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action.

© Except as otherwise provided in such sections, the terms “officer” and “employee” in sections 203, 205, 207 through 209, and 218 of this title shall not include the President, the Vice President, a Member of Congress, or a Federal judge.

(d) The term “Member of Congress” in sections 204 and 207 means—

(1) a United States Senator; and

(2) a Representative in, or a Delegate or Resident Commissioner to, the House of Representatives.

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Guest Vern Edwards

I don't think you'll find a definition -- I think it will be self-evident.

See Title 5 of the United States Code, "Government Organization and Employees", Part III, "Employees", Subpart A, "General Provisions", Chapter 21, "Definitions", Section 2105, "Employee":

(a) For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is--

(1) appointed in the civil service by one of the following acting in an official capacity--

(A) the President;

( B ) a Member or Members of Congress, or the Congress;

( C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709© of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

( b ) An individual who is employed at the United States Naval Academy in the midshipmen's laundry, the midshipmen's tailor shop, the midshipmen's cobbler and barber shops, and the midshipmen's store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.

( c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of--

(1) laws administered by the Office of Personnel Management, except--

(A) section 7204;

( B ) as otherwise specifically provided in this title;

( C) the Fair Labor Standards Act of 1938;

(D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or

(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.

This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Regulatory Commission is deemed not an employee for purposes of this title.

(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees.

The prohibition against contracting with government employees is not statutory. There is no definition of "Government employee" in the FAR. If there was an issue about whether a person is an employee of the Government, it, the parties could look at the above definition from Title 5 of the USC, in which you will find the laws about Government employment, or in a standard dictionary.

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Vern, by that definition you provided, state and local government employees would be allowed to receive federal contracts. If I take your advice and look at the plain language and the dictionary definition, I think that the restriction also applies to any government employee, regardless if it is at a state, local or federal level.

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Guest Vern Edwards

I'll point out that in FAR 3.601 the word "Government" is capitalized, which presumably means that it is a proper noun and does not refer to just any government, but to a particular government, presumably the Federal Government.

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In addition the reference to 18 U.S.C. 202 within 3.601-b " For the purpose of sections 203, 205, 207, 208, and 209 of this title the term “special Government employee” shall mean an officer or employee of the executive or legislative branch of the United States Government..." there is no reference to any state or local government

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It should also be noted that FAR 3.601 describes the purpose of the policy prohibiting award to Government employees to include, among other things, "avoid[ing] the appearance of favoritism or preferential treatment by the Government toward its employees" (emphasis added). Because the party awarding the contract is the United States, and the policy is to avoid the appearance of favoritism toward "its" employees (i.e., employees of the United States), the policy only applies to U.S. Government employees.

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Would the policy apply to a state employee who is detailed to the Government under the Intergovernmental Personnel Act? Conversely, would it apply to a Government employee detailed to a state government under the same act? These are real questions in the R&D community where there is an exchange of personnel, particularly between agencies and universities.

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Well so much for the ability of a CO to do some critical thinking.....I mean after all what if the person is the employee of Afghanistan or Ireland as a Government....remember on one hand you are talking about principles and policies within the context of FAR and then there is applying common sense.

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