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  • Question

    Is there a FAR clause that allows the government to remove contractor employees from the project?


    Answer

    For construction contracts FAR 52.236-5(c), Material & Workmanship, does give the KO authority to remove Ktr employees if KO believes them "to be incompetent, careless or otherwise objectionable." In exercising that authorit, the KO should recognize the following: 
     

    All supervision of contractor employees should come through the contractor company chain of command, not directly from federal employees.  Supervision of contract employees is up to the contractor. This includes hiring, setting salaries, providing guidance on the nature of the job, discipline and firing.

    It should seem obvious that contractor misconduct is dealt with through the hierarchy of the contracting company. The federal manager faced with contractor employee misconduct must be familiar with how to register a complaint with the contractor company. This information is obtained either through the COR or the contracting officer.

    Mistakes that are sometimes made are directions from a federal manager to a contractor program manager to fire a particular contract employee. This type of direct intervention in the employee-employer relationship between the contractor employee and the contractor company is improper and could be viewed as intimidating. It could also lead to legal liabilities. But it is proper for a manager to work through the contracting office to insist that an employee be removed from a project. The contracting office would have to agree with the manager, but the company would be free to use the employee on other projects if it so desired.
     

    The difficulty for an agency that does not respect a contractor not being a federal employee is that under principles of employment law, the contractor employee might be considered a federal employee for some purposes, particularly when it comes to filing an equal employment opportunity complaint.

    The more interaction between a federal supervisor and a contractor employee in a work environment that ignores the hierarchy in the contractor company, the more likely the Equal Employment Opportunity Commission will conclude that the contractor employee is  a federal employee for purposes of using the federal EEO system.

    This is important because the contractor employee’s complaint is against the federal manager’s agency, not the contractor company.

    The more the line of authority is respected and contractor employees are treated as employees of the company with the contract, the less likely there will be exposure to an EEO complaint against the federal agency where the contractor employee works.

     
    General Guidelines for Maintaining a Proper Government-Contractor Relationship
    DO:
    1.  Remember that contractor personnel are not government employees.
    2.  Identify contractor personnel as such with distinctive badges.
      (a)  Clearly identify the contractor’s work area.  This will help
      preclude any appearance of a personal service relationship between government
      employees and contractor personnel. 
      (b)  Contractor identification should also extend to E-mail accounts.  E-mail,
      and signature blocks should clearly identify contractor personnel.
    3.  Respect the employer-employee relationship between contractor and their employees.
    4.  Be aware of intellectual property rights in the federal workplace.  The terms of the specific contract will determine the contractor’s rights, but often the contractor is allowed to legally profit from products it develops in the federal workplace.
    5.  Report possible conflicts by contractor personnel to include violations of the law (including but not limited to Procurement Integrity statutes and regulations). Be sensitive to appearances created by close relationships between government and contractor personnel.  Seek assistance from legal counsel.  Unduly close personal relationships with contractor personnel can create the appearance of favoritism, and may call into question the integrity of the procurement process
    6.  Clearly describe all contract taskings.
    7.  Ensure only the contractor’s task leader assigns taskings to contractor personnel.
    8.  Set the example—as leaders, establish and maintain high ethical standards.  Address ethical issues promptly and confer with legal counsel.
    DON’T
    1.  Don't become so involved as a government official in the operations and policies of the contractor such that your judgment alone forms the basis for contractor actions such as:
      (a)  Selecting or recruiting contractor personnel
      (b)  Directing, scheduling, or critiquing individual contractor tasks on a continuous basis
      (c)  Supervising contractor personnel
      (d)  Rating individual contractor personnel performance
      (e)  Hiring or firing individual contractor personnel
      (f)  Determining who should perform contract tasks or how they should be done
      (g)  Pressuring the contractor to use “favorite” personnel, or insisting on particular personnel actions
    2.  Don't use government and contractor personnel interchangeably.
    3.  Don't intervene in the contractor’s chain of command.
    4.  Don't require “out of scope” work, personal services, or performance of “inherently governmental functions.”  The services the contractor is required to provide through its personnel are set forth in the contract -- there are no “and other duties as assigned.” 
    5.  Don't give the incumbent contractor a competitive advantage by including its
      personnel in re-competition meetings  or by allowing the contractor’s personnel to
      overhear or gain access to planning information.
    6.  Don't solicit or accept gifts from contractor personnel.  Contractor employees are “prohibited sources” and the rules for giving and getting gifts are very strict. Government employees may not solicit contractors and their personnel to provide or contribute to office gifts such as a retirement gift.  In addition, we may not solicit Combined Federal Campaign (CFC) contributions from contractor personnel.  Before accepting any gift from a contractor, whether from the company as an organization or a specific employee, you should consult with the Ethics Advisor at the local legal office.




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