Contractors in the Workplace

1. Contractors in the Workplace • ONE TEAM – ONE MISSION • ONE BIG, HAPPY FAMILY • INDUSTRY PARTNERSHIP

2. Introduction • Quiz Questions: • What Ethic Regulations and Statutes Apply to the Contractor Employees that work along side you in the FEMA Workplace? • Answer: NONE!* What Federal Oath of Office does the FEMA contractor take? • Answer: see next slide * With very limited exceptions

3. The Contractor’s Oath

4. Contractor Ethics “Rules” • Certain COI laws (e.g. bribery) • False statement/false claims laws • Procurement Integrity Act • Federal Acquisition Regulation (FAR) • (3.104) Procurement integrity • (3.2) Contractor gratuities to gov't personnel • (9.1) Responsible contractors • (9.4) Debarment/Suspension • (9.5) Organizational and Consultant COI • (37.104) Personal Services Contracts

5. Why are Contractor Ethics Important Now? • DHS has largest number of Federal Contractors after DOD of all Federal Agencies • Since 2000 Federal agency contracts worth over $412B* • Government civilian employee average cost is $126,500/year while annual cost of a service contractor employee (including O/H and benefits) is $250,000/year.** • FEMA heavily depends upon contractors to provide various services, especially in disaster situations * Congressional Budget Office, June 2007 ** Washington Post Article, August 19, 2007

6. Traditional ContractsPre-1990’s • Procurement of supplies, equipment, • Services: maintenance, custodial, food services • Construction

7. Less Traditional –But Pervasive (2000 +) • IT Help Desk • Finance & Accounting (inherently governmental?) • Travel & Transportation • Personnel Admin • Clerical & Admin • Studies • Spies/IRAQ security forces

8. What is Inherent Government Responsibility? • OFPP Policy Letter 92-1 • Definition. As a matter of policy, an "inherently governmental function" is a function that is so intimately related to the public interest as to mandate performance by Government employees.

9. What is Inherent Government Responsibility? • Generally 2 categories: • Requires discretion • Governing (hiring, firing, supervising federal employees, speaking on behalf of agency/making policy, overseeing contractors in the workplace) • interpreting/executing federal law protecting/affecting the US and its property and citizens; • binding the Government (contracts/grants) • Making value judgments in decision-making including monetary transactions and entitlements.

10. What is NOT Inherent Governmental Responsibility? • Gathering information for or providing advice, opinions, recommendations, or ideas to Government officials. • Ministerial functions such as • building security; • mail operations; • facilities and warehouse operations and maintenance; • mechanical services.

11. Risk of Unlawful Personal Services Contracts • Appearance of employer/employee relationship • Prohibited unless authorized specifically by statute • Subverts civil service laws and OPM regulations

12. Test of Federal Employment • Performance of a federal function • Appointment or employment by a federal officer • Supervision or direction by a federal officer

13. Gov’t & Contractor Relationship: • Non-personal services contracts ARE allowed. • Employer-employee relationships b/w the gov't and the contractor’s personnel are NOT allowed • Federal employees cannot supervise, direct, or evaluate contractor employees. • Contractor employees cannot supervise, direct, evaluate or control government employees OR other contractor personnel

14. Who are you? • Should a contractor answer the phone at FEMA as John Doe, John Doe FEMA, or John Doe Contractor A? • Contractor employees should always identify themselves as contractors at FEMA internal/public meetings and on the phone and in emails with FEMA employees and the public so that people are less likely to be confused to believe contractors are FEMA employees or have the authority of a FEMA employee. • Can a contractor wear the FEMA jacket or other clothing with FEMA/DHS logo? • No, confuses the public suggesting they are a FEMA employee rather than a contractor

15. Selected Issues Agenda • Identity – Who is a contractor? • Gifts – To and from contractors • Information security • Relationships • Awards • Time management • Use of resources • Privatized Housing and Other PPV

16. Gifts • Contractor employees are prohibited sources • General rule – FEMA employees may not solicit gifts or accept them from contractors • No solicitation for retirement or other gift for gov’t employee • Gifts include contractor paid conferences, instruction, travel, lodging and meals

17. Gifts • Exceptions: • Item not a gift – coffee, donuts and instruction provided as part of a federal gov’t contract • Gift up to $20/occasion; $50/year • BUT no cash may be accepted in any amount • Based on personal relationship • Query: Can personal relationship be established on the job? • Widely attended gathering • You NEVER have to accept a gift offered by a contractor, if you do not feel comfortable accepting (e.g., COTRs, Contracting Officers)

18. Gift Examples • Government employee invites office members, including contractor employees, to dinner • Problem with gratuity to contractor? • Contractor brings bottle of fine wine or flower arrangement (>$20). Issues? • Contractor reciprocates; invites host to dinner. Problem? • Office Potluck – What about the contractor who brings $50 ham?

19. Gift Examples • FEMA Organization Day Fund Raising • May contractors be asked to participate? • May we accept if contractor volunteers? • Hot dog/bake sale in workplace – May contractors purchase? • Gifts to Katrina/hurricane victims – cannot solicit

20. Information Security • Classified • Integrity of procurement process • Advance procurement info • Proprietary Info/Trade Secrets • FOUO – exempt from release under FOIA • Releasable to contractor only if protected by appropriate contract clauses and non-release declarations

21. Statutes and Regulations • Trade Secrets Act • Criminal to disclose a firm’s trade secrets or confidential data (Business Competitor FOIA requests-Check with OCC) • Procurement Integrity • Proprietary information submitted with bids or proposals-Contractor release or use of such information can subject contractors to criminal penalties and loss of government contract • Standards of Ethical Conduct • Prohibits use of nonpublic info (by gov't employees) for private gain (by anyone)

22. Information Protection • Badges or other means to identify status • Identify all members of audience before disclosing sensitive info • Question contractor presence at meetings where sensitive issues may be discussed

23. Information Protection • Segregate work spaces, where possible • Protect proprietary info • Ensure distribution chain is secure • Limit email distribution • Limit contractor attendance at FEMA meetings • Contractor Non-Disclosure Statements signed??

24. Personal Relationships • Varying degrees from acquaintance to marriage • COIs must be identified and resolved • Sensitive info must be protected • Be aware of appearances and impact on working environment

25. Awards • Contractors are not entitled to federal employee awards • Civilian employee incentive awards (5 USC 4511-4513) are based on statute available only to Federal employees • Contracts may include provisions for awards (incentive fee; award fee; etc)—coordinate with contracting officer

26. Time Management • Contractor employees work on CONTRACTOR clock – not gov’t • Leave and other time off - contractor supervisor determines • Holidays and other time off – contract determines, not gov’t supervisor No“59 Minute Rule” and gov’t holidays off

27. Use of Resources • Contractor-furnished resources • At discretion of contractor – BUT – time billed to gov't must be on performance of contract • Gov’t-furnished resources • Use IAW gov't furnished equipment clause in contract • Used only in contract performance, unless contract allows other use • May a contractor employee use a gov't phone to call home? • Send personal email on gov't network?