In a previous blog post, we briefly touched upon the term personal services. What does that term mean, and why is it generally considered to be a bad thing in Federal contracting?
Overview:
FAR 37.104(d) codifies the Government’s intent to restrict Federal agencies from using contracting to bypass Federal hiring processes, guidelines and statute. That same statute does establish exceptions, but we’ll cover how to determine if a contract may be personal in nature below.
Major Points:
This section establishes both limits and criteria for determining if a contemplated contract action would run afoul of statutory restrictions. I’ll summarize below:
- The proposed contract establishes an employer-employee relationship between Government and Contractor personnel. Are the Contractor’s employees under “relatively continuous supervision” by the Government? Does the Government direct individual Contractor employees in the same manner that they would civil servants? This rule in and of itself does not classify work as personal services, but it is a key starting point.
- If 1) above is true, then the proposed scope should be reviewed to see if the work conditions themselves are substantially the same as those used by Government personnel in the same role, as well as if the work is being conducted by (or otherwise would be conducted by) Government personnel. This includes items of consideration like provided equipment/facilities, place of performance, and workflow processes. In short, is the only difference between Contractor and Government personnel an e-mail username extension?
- Does the contemplated service period of performance exceed one year?
The Point of the Part:
In my time as a Contracting Officer, I’ve had to work with requiring activities to consider this section often. The Federal hiring process can be seen as slow, and it seems logical to consider using service contracts as a workaround for this. But outside of specific exemptions in law, doing so would go against the spirit and intent of the FAR in this case.
