JLT Responsibility, Accountability, Authority Team

Contract Relationships: A Working Guide

Civil Servants and Contractor Employees

Preamble

We are all here, civil servants and contractor employees, to execute NASA’s mission. With this common purpose and passion, we have different, and yet complementary, roles that are ultimately defined by law. Through a rigorous process, the government has selected a company or team of companies to provide a product and/or service. Although contractor employees are working to meet requirements defined by civil servants, they are nonetheless working for a company when they do so, and are being supervised by an individual who works for that company. This is necessary to ensure that the company is truly accountable for its performance in meeting government requirements. We are all one team with common objectives, and yet we must recognize and honor the distinct and complementary roles of civil servants and contractor employees.

Introduction

This guide has been created to help you understand contract relationships between civil servants and contractor employees by addressing the constraints, perceptions, situations and objectives. For example:

• Constraints– It is necessary to ensure that the contractor employees are not perceived as

civil servants. With a civil servant supervisor, contractor employees could be viewed as an unlawful extension of the civil service work force.

• Situations– Contractor and Civil Servant employees desire strong relationships and more

involvement to perform successfully.– When contractor employees are “co-located” with civil servants, lines of

responsibility and oversight can become “blurred.”– Some tensions may develop between groups regarding interaction, performance

and benefits, which can become amplified when combined with tensions due to contract structure, contract longevity, and personal issues, etc.

• Perceptions – While not having direct supervisory authority over contractor employees,

some civil servants are the “technical expert” in subject areas, and may be incorrectly perceived to have supervisory authority

• Objectives– We must create and sustain an open, honest and professional environment

where all questions and concerns relative to the mission are encouraged to be brought forward and are addressed in a straightforward and cooperative manner.

– Spirited discussions around technical, cost and schedule issues are necessary to achieve the complex activities we are responsible to the American taxpayer to provide. These discussions must not become personal.

– We are all part of a team which includes civil servants, prime contractor employees and subcontractor employees.

Key Concepts

• Contract Terms and Conditions establish Civil Servant/Contractor Employee Relationships

• Contracting Officers (CO’s) and Contracting Officer Technical Representatives (COTR’s) are responsible for oversight of contracts

- CO is the only person with authority to enter into or change contracts - COTR provides technical direction/clarification of contract requirements - COTR’s may have Technical Manager Representatives and Performance Monitors assisting them in accordance with delegated authority.

• Contractor employees work for, and are supervised by, the company that employs them - Civil Servants, including COTR’s and CO’s, do not supervise any

individual contractor employees

• Personal Services Contracts are prohibited by the Federal Acquisition Regulations unless specifically authorized by statute– A personal services contract is characterized by an employer-

employee relationship between the Government and the contractor’s personnel. Such a relationship occurs when, as a result of contract terms or manner of administration, contractor personnel are subject to relatively continuous supervision and control by a Government employee.

• More information is available under the Policy tab on the JSC Procurement Website: http://procurement.jsc.nasa.gov/procpub.htm

Contracting Officer Responsibilities

• Contracting Officers DO:– Authorize and sign contracts and modifications, binding the Government

– Ensure contractor’s compliance with the terms and conditions of the contract

– Delegate technical authority to a COTR (must be in writing)

– Consent to subcontract (as provided for in contract) – Prepare and issue contract changes – Coordinate contractor surveillance activities and conduct performance evaluations

• For questions regarding the Statement of Work, authorized work, contract terms and conditions and its interpretation, or other contractual issues, contact:– Civil Servants: CO/COTR– Contractor Employees: Company Contracting Office

COTR/TMR’s Roles and Responsibilities

• COTRs/TMR DO:– Assure CO that the contractor’s performance meets the technical requirements, terms, and conditions of contract

– Inform contractor of failures to comply with technical requirements of the contract

– Keep CO fully informed of any technical or contractual difficulties encountered during performance

– Recommend changes to CO – Ensure all required items, documentation, data, and/or reports are submitted as required by the contract

– Evaluate contractor performance – Perform final inspection and acceptance of all work required under the contract, if delegated by the CO.

– Act as the Government’s primary liaison with the Contractor in regards to providing technical direction and technical clarification of the SOW

Civil Servant/Contractor Responsibilities

• Civil Servants and Contractors should:– Conduct themselves in a professional manner– Demonstrate the JSC Expected Behaviors:

• Respectful• Trustworthy• Accountable• Open minded

– Utilize the respective organization’s chain of command

• Civil Servants and Contractor Management Shall:– Monitor compliance to contractual requirements and all applicable regulations and policy

– Voice differences of opinions, alternate solutions, or dissenting opinions in a constructive manner with an open and honest environment

• Remember…– Your conduct is a reflection on NASA

Reminders

• Civil Servants Shall NOT – Supervise contractor

employees– Assign tasks to

contractors out of the scope of the contract

– Provide continual instruction on how to perform services

– Ask a contractor employee to perform any kind of personal service contract or inherently governmental activity*

– Request contractor employees to develop contract requirements unless contractually authorized.

• Contractor Employees Shall NOT – Be Supervised by civil servant employees

– Accept tasks to contractors out of the scope of the contract

– Expect or solicit continual instruction on how to perform services

– Perform any kind of personal service contract or inherently governmental activity*

– Develop contract requirements* Inherently governmental activities

normally fall into two categories: the exercise of sovereign government authority or the establishment of procedures and processes related to the oversight of monetary transactions or entitlements. See FAR 7.5- Inherently Governmental Functions for more information.

Reminders

• Civil Servants Shall NOT

– Authorize or direct a subcontract*

– Direct, agree to, or authorize a change to contract terms and conditions*

– Approve leave for contractor employees

– Authorize flexible work hours for contractor employees

– Direct or authorize contractor employees to work overtime

*Only COs are authorized to perform this function

• Contractor Employees Shall NOT – Accept a directed subcontract from anyone but the CO*

– Accept direction, agree to, or authorize a change to contract terms and conditions from anyone but the COs*

– Request approval of leave for contractor employees from civil servants

– Request flexible work hours authorization for contactor employees from civil servants

– Request directions for contractor employees to work overtime from civil servants

*Only COs are authorized to perform this function

Reminders

• Civil Servants Shall NOT

– Discuss or request hiring/firing, promotions, salary increases, benefits, or individual performance issues with contractor employees

– Deal with time and attendance issues unless a contractor supervisor has contacted you to discuss employee’s leave/schedule change and how reoccurrences are impacting office support

– Provide feedback for individual contractor employees’ performance evaluations

• In the event you are involved in or witness these types of activities, contact your CO or COTR immediately

• Contractor Employees Shall NOT

– Discuss with or request from Civil Servants, hiring/firing, promotions, salary increases, benefits, or performance issues of contractor employees

– Discuss time and attendance issues with Civil Servants unless a contractor supervisor needs to discuss employee’s leave/schedule change as it impacts office support

– Request feedback for individual contractor employees’ performance evaluations from Civil Servants

• In the event you are involved in or witness these types of activities, contact your management immediately

Avenues of Communication

• If for some reason you feel that the Government/contractor relationship is inappropriate, violates the FAR, misrepresents the Government, or misinterprets the contract, your concerns should be elevated in the following manner.

Civil Servants Contractor Employees

Applicable Contracting Officer or

COTR

JSC Ombudsman

Immediate Supervisor(s)

Next Level of Management

Immediate Supervisor(s)

Next Level of Management

Elevate if issue cannot be resolved between parties

Avenues of Communication

• Procurement Ombudsman– An ombudsman has been appointed to hear and facilitate the resolution

of contract-related concerns from offerors, potential offerors, and contractors during the preaward and postaward phases of an acquisition.

– When requested, the ombudsman will protect the identity of the source of the concern.

– The existence of the ombudsman is not to diminish the authority of the Contracting Officer • Therefore, before consulting with an ombudsman, interested parties must first address their concerns to the Contracting Officer for resolution.

– The JSC Ombudsman for Procurement Matters is:

Lucy V. Kranz(281) 483-0490lucy.v.kranz@nasa.gov

– See NPR 5101.33A, Procurement Advocacy Program: http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PR_5101_033A_&page_name=Change%20History&search_term=5101.33

* Note that the JSC Ombudsman for Procurement is separate from the JSC Ombuds Office. See http://ombuds.jsc.nasa.gov for information on the JSC Ombuds Office.

When conducting contractor evaluations:

• Evaluations should be written around the work product, not the individual contractor employees

• Ensure Government surveillance of contract performance, NOT supervision, in order to avoid the appearance of a “personal services” contract.

• It is not the government’s role to grade or discuss the performance of individual contractor employees.

• The Contracting Officer or COTR will contact the contractor, verbally or in writing, in a timely manner when there is concern that the product and/or services are unsatisfactory.

• The following charts provide some guidance when writing strengths and weaknesses regarding contractor performance– Contractors may also use this guidance when writing self- evaluations

Recommendations When WritingStrengths and Weaknesses

Do’s Don’ts

Do use objective data like metrics, if applicable, to describe technical, cost, and schedule performance in Strengths and Weaknesses.

Don’t Ignore metrics or areas of emphasis and fail to address how they were considered in the evaluation.

Do include significance of strengths and weaknesses. Combine strengths or weaknesses into one larger input if it is more indicative of a systemic problem, or a significant strength.

Don’t just say something is significant without justification. All strengths and weaknesses are not equal. Don’t write an activity report, substantiate every strength and every weakness by outlining the impact (positive or negative)

Do describe performance problems in terms of products and services and against contract requirement

Don’t presume causes of performance problems. Don’t include loss of skilled contractor personnel as weakness or discuss skills if it’s a completion form contract - discuss products and services.

Do use factual data versus adjective rating terms and outline benefit to the Government in the discussion of the strength.

Don’t use adjective rating terms to describe work such as excellent, very good, good, satisfactory, or unsatisfactory

Do include cost and schedule impacts of task/projects delayed or not performed or completed early.

Don’t advise contractor on how to correct weakness

Do discuss efficiencies and initiatives undertaken by the contractor. Quantify cost avoidance due to innovations of the contractor when possible. Be specific about performance.

Don’t let emotions get in the way of the facts, do not address an individual contractor employee’s performance in strengths or weaknesses comment, and do not use employee names.

Recommendations When WritingStrengths and Weaknesses

Do’s Don’ts

Use adjective rating scale as a guide to assess contractor’s performance at evaluation factor level and lower if no other contract-specific rating tool exists.

Apply rating scale too literally, at too low a level. The rating scale is intended for application to total contract performance, but can be useful guide to ensure consistency at lower levels lacking any other contract-specific rating tool.

Adequately convey the severity of a weakness that would be considered a “deficiency” at the contract level. A “deficiency" for award fee purposes is a material failure of the contractor to meet a Government requirement or a combination of significant weaknesses that increases the risk of unsuccessful contract performance to an unacceptable level.

Assume that all weaknesses are equivalent to a “deficiency” as used in adjective rating scale. Although it could be, having a weakness(es) may not necessarily preclude rating as “excellent” based on the significance of the weakness(es).

Do make each finding a complete thought since these charts will stand as the file record.

Don’t use uncommon acronyms.

Weaknesses should be addressed in the midterm evaluation to allow the contractor the earliest opportunity to address and improve the situation.

Don’t ask the contractor to write strengths and weaknesses and input should not be solely based on the contractor’s self evaluation.