The question is where in the FAR, DFAR, or some other regulation does it specifically say that the government should approve or dissaprove of Contractor or leave? There seems to be alot of agency best practices pamphlets stating that the government shold not do the following: (a) Supervise contractor employees.
(b) Stipulate contractor duty hours (except for that directed in the contract).
(c) Require contractor employees to report to government personnel.
(d) Maintain contractor personnel records/time cards.
(e) Approve leave for contractor personnel.
(f) Approve bonuses for contractor personnel.
(g) Develop duty rosters including names of contractors.
There are even several DAU Ask a professor questions regarding this but no where can I find specific references on where this direction can be found in regulation? Specific references would be extremly helfpful in enforcing this. Thank You
The types of actions that you listed are those that would normally exist in an employer-employee relationship (e.g. supervise contractor employees, maintain contractor personnel records/time cards, approve leave for contractor
Open full Question Details
personnel, approve bonuses, etc.). Such activities would be characteristic of a "Personal Service" contract. A definition of "personal services contracts" can be found in FAR 2.101, which states, "Personal services contracts means acontract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees."
This becomes an issue because FAR 37.104(b) states, "Agencies shall not award personal services contracts unless specifically authorized by statute (e.g., 5 U.S.C.3109) to do so." This is so because the Government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws. Obtaining personal services by contract, rather than by direct hire, circumvents those laws unless Congress has specifically authorized acquisition of the services by contract. (FAR 37.104(a)) Typically, the Government procures "non-personal" services. The definition for non-personal services can be found in FAR 37.101:
"Non-personal services contract" means a contract under which the personnel rendering the services are not subject, either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.
Therefore, it is proper to NOT engage in the actions you stated unless the contract is for "personal services" and your agency has been given expressed authority to contract in such a manner. To administer a non-personal service contract as if it were a personal service contract is expressly forbidden and may expose the Government to unintended liabilities.