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charles

Personal or Non-Personal

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Hypo

Contract Firm is awarded a K for non-personal services. However, advertisements for contracted positions required all potential contracted workers to submit resumes to Gov persons not KTR. This requirement was not included in the K. Gov persons reviewed resumes, recommended persons, and KTR hired recommend persons.

What are your thoughts?

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Guest Vern Edwards

It's not consistent with non-personal services, but it's a very common practice. In some places, government personnel conduct contractor employee employment interviews and choose the person to be employed.

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It's not consistent with non-personal services, but it's a very common practice. In some places, government personnel conduct contractor employee employment interviews and choose the person to be employed.

I appreciate the response. I am surprised it is a common practice. I would think such practices potentially expose G to joint employer liability. What would happen to a contracted worker who was essentially hired by G that could not meet performance expectations? Would the G fire them as well, if so, then why do we have 48 CFR 37.104? IMO hiring and firing contractors not services, although these distinctions are often blurred, could circumvent cited regulation.

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No, the government would say to the contractor that the new employee is not working out/meeting requirements of the contract, and the employee should be replaced.

I agree that the practice you described isn't quite proper. Normally the government wants to be sure a new employee of the contractor will work out, especially when the contractor requires a lot of interaction with other government employees and/or the public. That usually means a face-to-face meeting to approve the person in advance. Unfortunately the tight job market means a contractor may not hire a recruit to fill a vacancy until the governement approves the person. But having resumes go to the government directly instead of the contractor is a real stretch.

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I've seen this happen where the government provides a name and resume to the contractor of a recommended candidate that they want the contractor to hire. The contractor, wanting to keep their government customer happy, hires the candidate, the candidate doesn't work out (can't meet performance objectives) and the government then tells the contractor to fire the person. The contractor essentially then says, "this was the person you told us to hire, so don't hold this against our performance rating on the contract." It certainly puts the government in a sticky situation, so I don't allow my customers to do this. Although I'm sure it still happens on occasion without my knowledge.

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Guest Vern Edwards

Anyone interested in this issue should read the Report of the Acquisition Advisory Panel to the Office of Federal Procurement Policy and the United States Congress (January 2007), https://www.acquisition.gov/comp/aap/24102_GSA.pdf, Chapter 6?Appropriate Role Of Contractors Supporting Government, Section III, Personal Services Contracts. The panel researched the history of the FAR prohibition against personal services contracts and reached this conclusion:

For the reasons stated above, the existing FAR prohibition on PSCs, which focuses upon the type of supervision provided to contractor personnel in an effort to preclude the creation of an employer-employee relationship, is not compelled by applicable statutes and case law. Given the statutory definitions of a federal employee, as that definition has been interpreted by the courts, the activities that are currently barred as PSCs by the FAR would not create such an employer-employee relationship. And the PSC prohibition, to the extent it is observed in practice, often creates inefficiencies and adds to costs for both agencies and contractors.

The panel made the following recommendation:

In order to reduce artificial restrictions and maximize effective and efficient service contracts, the current prohibition on personal service contracts should be removed. Government employees should be permitted to direct a service contractor?s workforce on the substance of the work performed, so long as the direction provided does not exceed the scope of the underlying contract. Limitations on the extent of government employee supervision of contractor employees (e.g., hiring, approval of leave, promotion, performance ratings, etc.) should be retained.

Nothing has been done in response to the panel's recommendation, and given the deficiencies in our government's acquisition policy making apparatus, it is unlikely that anything will be done. At present, there is little serious enforcement of the FAR prohibition, although IGs still complain from time to time, and, in my experience, government participation in hiring, performance appraisal, and even bonus pay decisions, is not rare.

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No, the government would say to the contractor that the new employee is not working out/meeting requirements of the contract, and the employee should be replaced.

FWIW, government's counterargument would most likely be ineffective in front of the EEOC. I appreciate the discussion.

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.

If AFGE had smarter leadership, they would organize these PSC's to get them the federal civil service retirement benefits they have earned.

.

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Guest carl r culham

There is more impact with regard to this subject than simply application of the FAR. This report gives some hint.

http://www.dol.gov/oasam/programs/history/...contractors.htm

It would be interesting to see how some of the examples indicated in this thread and those that occur every day would stack up when a specific case is scrutinized by the DOL or IRS? It might be that Charles and Brian?s latest comments are not too far off.

http://www.irs.gov/businesses/small/articl...d=99921,00.html

All told it might be why the panel report referred to in this thread has never been acted on.

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On what basia do say that?

Vern, the concept of a contractor employee bringing an EEO complaint against the govenrment is not detached from reality. I remember some years ago when I was working for the Navy that a female contractor employee who was hired to provide support to the finance office was able to bring a sexual harassment complaint against the Navy. The Navy argued she was not an employee, thus not entitled to the protections of the Civil Rights Act. However, the EEOC held that the way the contract was administered, she became an employee and was entitled to have a chance to prove her case.

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Guest Vern Edwards

Retread:

My last post in this thread was on January 31, when I asked charles for the basis for his statement. He never answered and I don't care enough to pursue it. The issue, if there is one, doesn't seem to have been a big problem, and it is too speculative for me to devote any time to. Please pursue the matter, but I'm thinking about other things. Now, if you want an interesting problem -- What is a subcontract and who is a subcontractor?

Vern

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Hello

I am not an avid poster or perhaps more accurately I am a lazy poster and in my opinion Vern's question did not warrant a response. Vern asked, "On what basia do say that?" Among other things basia is a city in Iraq and assuming he meant basis I am unclear with "do say that." Was he asking for my opinion, commission's opinion, or court's opinions? I suppose I could have responded with, "What you talkin bout Willis/Vern?" (Does anyone remember Diff'rent Strokes ?)

I believe Vern was asking for my opinion. And IMO federal agencies should not be involved in the direct hiring and firing of contingent workers (contracted personnel).

My rationale:

EEOC has applied the common law of agency test to determine whether an individual is an agency employee under Title VII. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).

Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereinafter referred to as the ?Guidance?) (available at www.eeoc.gov.), the Commission has recognized that a ?joint employment? relationship may exist where both the agency and the ?staffing firm? are considered joint employers. Clients of contract firms, including the federal government, qualify as employers of workers assigned them if the clients have sufficient control over the workers, regardless of whether the worker is on the federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Enforcement Guidance: Application of EEO Laws to Contigent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Staffing Service Work Arrangements section provides the following example regarding a staffing firm.

In Baker v. Dep?t of Army, 106 FEOR 292 (EEOC 2006) the Commission held the agency improperly dismissed an EEO complaint alleging discriminatory nonselection. Although complainant was a contracted worker, the agency's participation in contracted worker's selection and supervision was determined sufficient to hold agency as a joint employer.

There are several more decisions holding agencies as joint employers. It appears the current EEOC will use a much broader brush to determine whether contingent workers are connected to the agency with ?aspects of the relationship that are indicative of an employer/employee relationship? under anti-discrimination laws.

For example, In Fearn v. TVA, 97 FEOR 1129 (1996) determining whether appellant was an employee of the contractor or of the agency, the Commission noted, first of all, that the contractor gave him a job assignment at the agency. In addition, appellant did not receive a pay check from the agency, was not a member of the agency retirement system, did not earn agency sick or annual leave, did not participate in the agency's health plan, and was not a member of the agency's retirement system. Furthermore, his work for the agency was accomplished under the guidelines of the contract between the contractor and the agency; thus, the agency did not have complete control over the means and manner of his work. Taking all the above factors into consideration, the appellant was deemed an employee of the contractor and not that of the agency.

Contrast the above cited case with the following where the complainant was jointly employed by FSS Alutiiq Joint Venture and the Department of the Navy. She was supervised by a Navy employee. Her only contact with Alutiiq staff was to send them time cards and leave slips that were previously approved by the agency. She attended agency meetings at the beginning and end of her shift, the agency assigned her work and provided her with safety training, and she worked on agency premises, using agency tools for the most part. Schwartz v. Dep?t of Navy, 107 FEOR 518 (2007).

Best regards,

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Guest Vern Edwards

charles:

I apologize for the sloppy question. I have eye problems, which sometimes get bad and make it difficult to see the computer screen. I try to be scrupulous, but failed on that occasion. No excuses, though. I'm horrified, mortified, embarrassed, and ashamed. :o But it looks like you knew what I meant.

I don't recognize some of your citations, such as 107 FEOR 518. I couldn't find it on Westlaw or even Google. I don't know what "FEOR" stands for. Perhaps some private reporting service. However, I did look up the last decision of which you wrote, which Westlaw reports as Schwartz v. Winter, EEOC DOC 0120071769, 2007 WL 2228941 (E.E.O.C.). It may be the case that Retread recalled. A female electrician employed by a private firm and working on a Navy installation complained of job discrimination and filed an EEO complaint. The Navy rejected the complaint on grounds that the woman was not a government employee. She appealed to the EEOC, which found that she was for purposes of EEO complaining.

Here is a pertinent excerpt for other readers:

Clients of contract firms, including the federal government, qualify as employers of workers assigned them if the clients have sufficient control over the workers, regardless of whether the worker is on the federal payroll.

***

Here, the record shows that complainant has served as an electrician for the agency since January 2005. She was initially employed by Management Consulting, Inc. serving as an electrician for the agency. Alutiiq was awarded the contract to provide staff on October 1, 2005, and complainant continued to serve as an electrician for the agency under the employ of Alutiiq. The agency assigns complainant her work, which involves many electrical projects and tasks. She has the same schedule as agency electricians in her area, mustering with them at the beginning and end of her shift. In argument the agency concedes that at the musters general information was given out and there was safety training. The record contains a sign-in sheet indicating complainant received safety type training along with agency employees on March 9, 2006. While the contract between the agency and Alutiiq specifies that Alutiiq will provide on-site supervisors to direct, control and supervise its staff, the record shows there was no on-site supervisor and complainant had virtually no contact with Alutiiq staff other then to send in timecards and leave slips which were previously approved by the agency. Complainant avers she was supervised by the agency Maintenance Supervisor I. According to the counselor's report, Maintenance Supervisor I stated that while he was not officially complainant's supervisor, he supervised her work assignments and checked on the quality of the work she completed. Complainant worked at the agency's premises using agency tools, materials and equipment, including a truck and power tools. She supplied some personally owned hand tools. Complainant was paid by the hour.

In International Union v. Clark, 2006 WL 2598046 (D.D.C. 2006), the court ruled that contrary to the contention of the United States Marshals Service, Court Security Officers (CSOs) were jointly employed by the agency and the staffing firm contracting companies. The court noted the United States Marshals Service power, on a case by case basis, to decide whether any particular CSO can be removed from the contract for failure to meet the qualifications of the job. The court found that the agency's power to decide whether a particular CSO could be removed from the contract for failure to meet the qualifications of the job was tantamount with removal power since an adverse agency determination in most cases of a CSO resulted in termination by the contractor. Here, Alutiiq's termination letter to complainant explained the government asked that she be removed from the worksite due to unsatisfactory performance ?and as such your employment with Alutiiq has been terminated.?

While complainant was a highly skilled worker who did not require close supervision and received pay from Alutiiq, the weight of the evidence is that the agency jointly employed complainant with Alutiiq.

The EEOC returned the case to the agency (Navy) and ordered it to investigate the complaint. I could find nothing more in the record and don't know the outcome of the Navy's investigation.

My reaction? Interesting. But so what? Agencies are not supposed to enter into contracts for personal services or to manage nonpersonal service contracts in such a way as to become de facto personal service contracts. That's been in the procurement regulations for as long as I can remember, but agencies do it pretty routinely, as various IGs have reported many times over the years. I don't condone it, but I recognize that it is happening and that it has been happening for a very long time, and it appears that government officialdom doesn't seem to think that an occasional EEO complaint from a contractor employee is anything to worry about overmuch. Schwartz v. Wilson has been cited only once in the 3 and one-half years since it was published, and in the citing case, from last year, the EEOC remanded to the agency for supplementation of the record so that it could make a decision, which it has not yet done. I have found what may be nine other cases like Schwartz v. Wilson. There are undoubtedly more, but, in short, compared to other problems in acquisition, such as the failure rate of IT projects and cost overruns in major systems acquisitions, EEO complaints from contractor employees hardly register on the scale of things to worry a lot about. I'm sure cautionary memos have gone out, although probably to little effect. In any case, the government might close for a week or so in March, and we'll all be safe during the hiatus from the ongoing illegality.

Yawn. B)

So, charles, my apologies for the bad post. I deserve your scorn. I beg your forgiveness. Thanks for answering my question at length, even though you did not think it warranted a response. And thanks for the info about Basia. I thought it was the first name of the singer Basia Trzetrzelewska.

Now, forgive me again. I've enjoyed this, but I have to get back to work. Have a good one.

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Guest Vern Edwards

Ah! I found it. FEOR is the Federal Equal Opportunity Reporter, a subscription service of LRP Publications, http://www.lrp.com/. It's not in the Westlaw database. I don't know if it's available through LEXIS. I learned a new thing. My horizons have been widened. (Extended?)

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