Ask The Lawyer

By Debra Roth

How to deal with contractor misconduct

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The federal workforce is often called the blended workforce. It consists of federal and contractor employees working together, often performing the same duties.

So who’s in charge? Only federal employees can perform essentially governmental functions, and someone should be watching to make sure federal and contractor employees stick to their respective proper roles.

A process managed by the acquisition community has been created to help. The contracting officer writes a statement of work and publicizes the availability of work to be done under a government contract. After what is usually a competitive process, the contractor company is selected and provides the manpower to accomplish the statement of work. The contracting officer signs off on the contract and everyone gets busy getting the work done. The federal contracting officer assures compliance with federal acquisition rules, and the federal program manager directs the work, which is often done by both federal and contractor employees. Assisting in the process is the contracting officer’s representative (COR), who is the day-to-day interface with the contractor and, to a certain extent, the contractor workforce.

Once the company is hired, the interactions should be between the company’s authorized representative, usually a program or project manager; and the authorized federal employee official, usually the COR.

All supervision of contractor employees should come through the contractor company chain of command, not directly from federal employees. Some day-to-day direction will occur from federal employees to contract employees — such as “put these files over here” or “pick up the documents we’re waiting for at 2 p.m.” But 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 reality, in most blended workforces, is that feds and contractors work side by side with little thought given about who is supervising whom. There are probably examples where federal employees have been directed by contractors, which is not allowed

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.

But even in those few agencies that are permitted to enter personal service contracts, the same principles apply. Those on a personal services contract who engage in misconduct are handled by actions of the contracting officer.

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