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Troy

Gov't Providing Resume to its Incumbent to Hire on their Contract

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Given the title of this post what, if anything is wrong with this scenario?

Is there precedent whereby the Government, seeking to acquire a specific skill, is permitted to headhunt a resume from someone they know and to farm it out to one of their existing incumbent contracts; intending for them to be hired and to work in support of the Governments requirement under contract? What are the specific violations that would apply? What is an appropriate alternative?

Looking for GAO, court rulings, FAR, statute etc.

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Precedent? I don't know of any law or regulation that prohibits it, and I know that the practice is not uncommon. I'm not saying ii's a good idea, only that to my knowledge it's not illegal.

Do you presume that it's illegal or improper?

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I agree with Vern that the practice happens every now and then. I don't know if I'd go so far as to say it was "not uncommon" but it definitely happens. If the person is qualified to perform the required work, I don't think eyebrows would be raised. If the person is unqualified, that would be a different story.

Outside of government contracting, it is not uncommon for a company to provide a resume to a temporary labor staffing agency (job shoppers) and direct that agency to hire and then provide that individual back to the company. There are several legitimate reasons why that would make good business sense.

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Troy asked "Given the title of this post what, if anything is wrong with this scenario?"  While I cannot say that something is "wrong" with the scenario, I can see several potential problems depending on the facts of the case.

First, we don't know if the position to be filled is one that is covered by a collective bargaining agreement that contains provisions for how vacancies are to be filled.  Not following those procedures could result in an unfair labor practice. 

Similarly, we do not know if the position is one that may be subject to the right of first refusal under FAR 52.222-17.  If it is, not giving former employees the chance to exercise those rights could be a breach of contract.

If the contractor has already offered another person a job to fill the vacancy, there may be an employment law violation if the contractor does not follow through on the offer.  This could also be a violation of contract terms such as 52.222.35.

Is the person whose resume is being shopped a former government employee with post government employment restrictions on what (s)he can do?

 

 

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58 minutes ago, Retreadfed said:

First, we don't know if the position to be filled is one that is covered by a collective bargaining agreement that contains provisions for how vacancies are to be filled.  Not following those procedures could result in an unfair labor practice. 

Similarly, we do not know if the position is one that may be subject to the right of first refusal under FAR 52.222-17.  If it is, not giving former employees the chance to exercise those rights could be a breach of contract.

If the contractor has already offered another person a job to fill the vacancy, there may be an employment law violation if the contractor does not follow through on the offer.  This could also be a violation of contract terms such as 52.222.35.

Is the person whose resume is being shopped a former government employee with post government employment restrictions on what (s)he can do?

Retread:

Those are hiring issues, not referral issues. A referral issue would arise if it was by a government employee of a relative, or if it was a matter of tit for tat, or if it was something on the order of veiled direction or freighted suggestion.

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I appreciate all the feedback. Having come from a contracting office to now working in a program office, and seeing the various goings-on first hand, has been quite the education for me. To provide added perspective - the contract in play includes optional labor hour CLINs for a Lean Six Sigma specialist. The program manager knows a guy, recently retired from active duty, that he is wanting to refer to the incumbent for employment. Once the optional CLIN is exercised, the hope is, that the incumbent will be able to hire the specialist they received on referral. There may well be nothing inherently wrong here, just wanted to get a sanity check. I have also sought an opinion from OGC on this matter as well. I'll post their response for the benefit of this discussion.

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Troy, I should have guessed that it is a Program Office. I deleted my post above, explaining my experiences with the shenanigans within a high level Program Office for a Major Defense Acquisition Program. I'm going to bet that the answer you get is that it isn't a problem. It looks tame in comparison. 

EDIT: I only say that because I've become cynical over the years. 

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As noted an OGC response will be interesting to see.   I picked up on a couple of important tidbits in the OP's posts so far that makes me wonder.

OGC?   Considering FAR subpart 3.104 unless OGC is the agency's ethics official why isn't the agency ethics official part and parcel to the referral as well?  By my read of most agency regulations the ethics official is in the position to make determinations regarding employment and financial interests of Federal employees.

By my read the referral/contact is prior to the exercise of the option.  If this fact is correct it seems such contact could be construed to be prior to and during the conduct of an acquisition again drawing the matter into FAR subpart 3.104.   In this case I understand it is an employee (program manager) seeking employment for a another who was a previous employee (presumed specialist) but the manager might just be construed as being an agent for the specialist.

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@ Troy

On 3/4/2017 at 1:25 PM, Troy said:

The program manager knows a guy, recently retired from active duty, that he is wanting to refer to the incumbent for employment.

Troy:

Even if legal and ethical, I don't think your PM should refer "a guy" he knows personally (and has probably served with) to a contractor for a job providing services to the PM's office. I don't think that's the same as referring someone he knows about, but does not know personally. If the contractor hires the guy it might appear later to have been a personal favor, and it could give rise to an awkward situation during contract administration. Neither would be good. Hopefully, the PM is not related to the guy or involved with him socially or in business.

If I were the CO I would tell the PM that making such a referral would be a bad decision and that he should not do it, even if he/she gets an okay from the ethics official or OGC. And I would document the file.

 

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Why not just suggest to "the guy" that he send a resume to the contractor without the government getting involved with the contractor in any way.  That way it there is no perceived influence by the government on the contractor.  If the guy is truly good, the contractor will probably hire him.

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49 minutes ago, PepeTheFrog said:

Do people not know how to use phones anymore? PepeTheFrog agrees with Desparado.

Yes but only to text, not to call and carry on an oral conversation.

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49 minutes ago, PepeTheFrog said:

Do people not know how to use phones anymore? PepeTheFrog agrees with Desparado.

I would suggest a burn phone.

Agency IG's love this type of stuff.

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So I received an advisory opinion from OGC Procurement Law Group today (OGC Ethics Group opinion pending as well). Below is a synopsis of their response to my three main questions as follows:

1. Is there precedent permitting the PM to make such a referral?

Answer was No, with references to FAR 3.101-1, 5 CFR §§2635.502 and 2635.702. Essentially, by the PM making the referral it would be viewed as influencing the contractor to provide preferential treatment to the friend of the Government employee for their financial gain, and additionally, due to the PM also being a benefactor of the contract, there is a personal benefit to the PM gained by virtue of his Government position. They further stated that it would present a conflict of interest for the contractor in question to accept such a referral. Additionally, it would be improper for the CO to knowingly accept any candidate submitted by the contractor that had been hired under these circumstances.

2. What are specific violations that would apply?

Answer was, pursuant to the prohibitions cited at title 5 CFR, there would be a financial interest favoring a friend or affiliate of a Government employee and therefore the violation would be in accordance with 18 U.S.C. § 208(a).

3. What is an appropriate alternative?

Answer was, there was no prohibition against the PM making his friend aware of a public job announcement [emphasis on public information] that his friend could then respond to through typical hiring practices. They stated "by doing this, the employee avoids the appearance that the employee used his or her government position to influence or induce the government contractor to hire the personal acquaintance of the employee."

On this last answer, I would actually take exception given the details of this specific scenario, based on OGCs earlier assertion with regard to the PM being a direct benefactor of the contract service. While the PM might well avoid having actually influenced the contractors decision, if the contractor were to ultimately hire this friend, even if highly qualified, in accordance with 5 CFR 2635.702(d) I believe it would certainly give rise to the appearance that public office might have been used to influence the contractor. At the very least, like Vern stated, it would at a minimum give rise to an awkward situation during contract administration. If the OGC Ethics Group come back with an opinion that's fundamentally the same as the above, then I won't update this post, but if there is new information to inform this discussion I will share.

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On 3/7/2017 at 7:01 PM, Troy said:

due to the PM also being a benefactor of the contract, there is a personal benefit to the PM gained by virtue of his Government position.

That seems a real stretch.

Regardless, I am a firm believer in the "appearances matter" mantra.

Here are some questions to ask yourself:

1. What if someone at the agency found out? What would that do to this person's credibility?

2. What are the chances that this person won't demand a higher salary because "the PM wants him"?

3. What if he is terrible at his job?  Would you feel free to fire him?

4. Can you really "manage" someone who has a closer relationship with the PM than you do?

All in all, a terrible idea.

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