I'm faced with an issue of a contractor proposing a consultant as Key Personnel on a firm fixed price service contract. The HHSAR (352.237-75)doesn't seem to outright prohibit it but i wanted to see if anyone has come across something like this before.

Please clarify: Are you saying that the contractor is proposing someone to be a key person who will be working for them as a consultant, rather than as an employee?

Thats correct. The consultant is being proposed as key personnel on the contract and is not an employee of the contractor. Is this possible?

Yes, unless there is text in your contract prohibiting it.

Why are you seeing a problem?

13 hours ago, WC79 said:

The consultant is being proposed as key personnel on the contract and is not an employee of the contractor. Is this possible?

Yes, it's possible. Why not? It is not impermissible, unless you have defined "key (i.e., important) personnel" or consultant in such a way as to make it so?

There have been a number of GAO protest decisions which have mentioned consultants as key personnel. See, e.g., Magellan Health Services, GAO B-298912, Jan. 5, 2007:

Quote

[Federal Occupational Health, part of HHS] has knowingly approved, under the current contract, average labor rates for the Key Personnel categories of counselors and consultants that are higher than industry standard. This is in recognition of demonstrated capabilities and performance of high quality that are difficult to find.

 

16 hours ago, WC79 said:

I'm faced with an issue of a contractor proposing a consultant as Key Personnel on a firm fixed price service contract. The HHSAR (352.237-75)doesn't seem to outright prohibit it but i wanted to see if anyone has come across something like this before.

Yes, as the experts above have stated. Its permissible under the HHSAR KP clause (I am also in HHS).  This is fairly common for projects where the contractor, especially small businesses, need technical expertise. 

Say you are  doing run-of-the-mill software dev, but need to connect your software to some weird archaic government IT system (this is very common, btw).  This is a small but crucial part of the project.  You might want to hire, as a consultant, an expert in that weird system.  You expect you'll only need a few hours of their time (hence consultant, not employee or sub-contractor).  Since its a crucial part of the project, GVT may want to make that consultant a KP.  All of this is normal.

Thanks everyone!!

13 minutes ago, WC79 said:

Thanks everyone!!

 

1 hour ago, Vern Edwards said:

Yes, it's possible. Why not? It is not impermissible, unless you have defined "key (i.e., important) personnel" or consultant in such a way as to make it so?

There have been a number of GAO protest decisions which have mentioned consultants as key personnel. See, e.g., Magellan Health Services, GAO B-298912, Jan. 5, 2007:

 

Thanks this is helpful. Was this a case you were familiar with? if not how were able to find this case. I tried searching several times but couldn't find anything.

Just Google "B-298912."

If I weren't familiar with it, how would I have known to tell you about it?

WC79,

Rather than reading cases (although there is nothing wrong with reading cases), it may be more important to read your contract.  Does your contract have text that defines key personnel in such a way as to exclude consultants?  That is what really matters.

1 hour ago, ji20874 said:

Rather than reading cases (although there is nothing wrong with reading cases), it may be more important to read your contract.  Does your contract have text that defines key personnel in such a way as to exclude consultants?  That is what really matters.

@WC79ji20874 is correct! All the case that I cited says is that it was done. It was not an issue in that case. Look at your solicitation or contract to see what it says.

1 hour ago, ji20874 said:

WC79,

Rather than reading cases (although there is nothing wrong with reading cases), it may be more important to read your contract.  Does your contract have text that defines key personnel in such a way as to exclude consultants?  That is what really matters.

I agree, the contract was researched and everyone was clear that the contract did not prohibit its use. I've never came a across this before and wanted to make sure i wasnt missing anything.