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Non-Personal Service Contracts - Not Subject to Supervision and Control


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The program office has an issue with Contractor A's employee that provided support services for their office. Three months ago, Contractor A dismissed the employee because the employee stopped coming into work. Contractor B hired the same employee to provide similar services to the same program office. Due to performance issues, the program office did not want the contractor to bring this employee aboard to provide these services for their office under a different contract. The program office contacted me and questioned whether they could contact the contractor's HR department regarding this employee.

My response to the program office: Our agency is only authorized to award non-personal services contracts. This means that the contractor providing these services are not subject to the supervision and control usually prevailing in relationships between the government and its employees. Under a non-personal services contract, a contractor dictates its employees' compensation, benefits, hiring, etc. We (the government) specify the details in the SOW and review, approve, and pay for work products, not individual performance, hiring firing, etc.

The program office responded back and questioned whether the government has to (knowingly) accept a contractor's employee whose performance is unacceptable.

How should I handle this? I would appreciate any recommendations you can provide.

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Fixed-Price? Cost-Reimbursement? Time-and-Materials or Labor-Hour?

Are there any words in your contract giving the Government approval of contractor employees? Or words saying the Government may deny facility access to any contractor employee?

Is the contractor failing? Is the contractor's performance unacceptable?

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ji20874,

This is a time-and-material type contract.

There is no wording in the contract giving the Government approval of contractor employees nor words saying the Government may deny facility access.

The contractor's performance is satisfactory; however, the program office has an issue with this one individual coming aboard.

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But, since it is time and material, is the performance of this person unacceptable? It is unfortunate, though understandable that there is no specific clause for service contracts similar to the material and workmanship clause for construction contracts (52.236-5), which allows the KO to direct the removal of any employee that the KO determines to be "incompetent, careless, or otherwise objectionable". That clause or one like it has been in DoD construction contracts since long before FAR.

I'm not sure of the volume of service contracts in pre-FAR days. However, the work climate might have been more sympathetic back in the day. With the loud criticism of the government's seemingly overprotection of poor performing govt employees, you'd think it would be politically correct to be able to require service employees to be competent!

But since you are paying for specific performance in a T&M arrangement, it would seem that there would be some way to require competence.

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Joel,

According to the COR, the employee worked for 3 months before he/she was dismissed. Within those 3 months, the employee's performance was unacceptable. Additionally, the employee came into the office a few days out of the week when he/she was required to work 8 hours a day/5 days a week. Due to the large volume of work required by this employee, the program office felt the need to inform the contractor's project manager of the employee's unacceptable performance.

I appreciate your input.

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Are the services considered commercial so that they are subject to FAR 52.212-4, Alt I?

Who decided the employee was required to work 8 hrs. a day and five days a week?

When you say the employee's work was unacceptable, does that mean you rejected the work and had the contractor re do it?

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Retreadfed,

The services are considered commercial subject to FAR 52.212-4, Alt I.

The program office identified the hours of operation (in the SOW) required by the contractor.

The project manager re-assigned the employee's work to another employee within the same company so that the work would be completed within the time required.

Thanks for your input.

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Retreadfed,

If I am interpreting this clause correctly, the Government may require the Contractor to correct the problem by replacing the contractor's employee.

In this situation, Contractor A dismissed the employee from further employment with their company. Now, Contractor B has hired the same employee; and Contractor B is not aware of the employee's performance with Contractor A. At what point would Contractor B replace the employee? The start date for this employee to begin services is not until next month.

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Guest Vern Edwards

I don't see anything wrong with the CO telling the company that the employee was unreliable and that the agency prefers that the contractor not bring him on board. The question is: What you will do if the company brings him on anyway?

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