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By
PWG on Monday, January 06, 2003 -
08:19 am:
It doesn't appear that GSA has a Federal Supply
Schedule for Secretarial or Receptionist services other than one
for Temporary Support. Is there a regulatory reason for this,
personal services perhaps? We currently use the GSA Temporary
Services FSS contract to provide a receptionist for our office
but we can only issue orders for 120 days. Is there an easy way
to issue a longer contract for this type of service?
By
formerfed on Monday, January 06,
2003 - 08:37 am:
The actual reason a time limitation is placed on
temporary services is to keep agencies from contracting on a
permanent basis. The background to the original rule cited
examples when it's appropriate to contract for these services -
unexpected increase in work on a limited basis, need for
clerical support due to a vacancy but only while a recruitment
action is underway, employee is on maternity leave, and a few
only of a similar nature.
You really can't do a contract for the services of a single
receptionist because that does imply personal services.
By
Vern Edwards on Monday, January 06,
2003 - 10:48 am:
formerfed:
Do you think it implies personal services because of the nature
of receptionist work, or because the services are those of a
single receptionist? Would two receptionists in different rooms
be okay?
Vern
By
formerfed on Monday, January 06,
2003 - 11:05 am:
Vern,
Okay, you got me thinking. I started to say it's because the
services are of a single receptionist and that it appears that
the government provides supervision. Then I caught myself and I
realize my response to PWG is wrong. If a SOW is crafted so that
the work is described without the need for government
supervision or constant direction, it can be done.
By
Phil C. on Monday, January 06, 2003
- 11:12 pm:
PWG
I agree with FORMERFED who stated "The actual reason a time
limitation is placed on temporary services is to keep agencies
from contracting on a permanent basis." According to 5CFR300.504
(a) an activity can contract such services for a maximum of 120
working days and extend to 240 working days. 5CFR300.504 is
contained at the end of this posting.
Having awarded a few of these and been privy to others, I'm of
the understanding that if the work is truly temporary in-nature
then it's permissible to obtain the required service via
contract vice hiring through the Civil Service system. However,
if the work is not temporary then an activity MUST hire a
government employee through the Civil Service system. Also
another concern if awarding a contract for non-personal
services, is to ensure that the service remains non-personal.
Especially if the contractor employee is working side-by-side
with the Government employees can lead to non-personal becoming
personal unless everyone is made aware of the rules up-front.
See Sec. 300.501 for additional information.
I think if your activity continues to award a contract for the
same service then you should look at classifying the position
and hiring an employee through the Civil Service system. If not,
it appears your activity would be circumventing Civil
Service/Labor laws.
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 300--EMPLOYMENT (GENERAL)--Table of Contents
Subpart E--Use of Private Sector Temporaries
Sec. 300.504 Prohibition on employer-employee relationship
No employer-employee relationship is created by an agency's use
of private sector temporaries under these regulations. Services
furnished
by temporary help firms shall be performed by their employees
who shall not be considered or treated as Federal employees for
any purpose, shall not be regarded as performing a personal
service, and shall not be eligible for civil service employee
benefits, including retirement.
Further, to avoid creating any appearance of such a
relationship, agencies shall observe the following requirements:
(a) Time limit on use of temporary help service firm. An agency
may use a temporary help service firm(s) in a single situation,
as defined in Sec. 300.503, initially for no more than 120
workdays. Provided the situation continues to exist beyond the
initial 120 workdays, the agency may extend its use of temporary
help services up to the maximum limit of 240 workdays.
(b) Time limit on use of individual employee of a temporary help
service firm.
(1) An individual employee of any temporary help firm may work
at a major organizational element (headquarters or field) of an
agency for up to 120 workdays in a 24-month period. The 24-month
period begins on the first day of assignment.
(2) An agency may make an exception for an individual to work up
to a maximum of 240 workdays only when the agency has determined
that using the services of the same individual for the same
situation will prevent significant delay.
(c) Individual employees of a temporary help firm providing
temporary service to a Federal agency may be eligible for
competitive civil service employment only if appropriate civil
service hiring procedures are applied to them.
(d) Agencies shall train their employees in appropriate
procedures for interaction with private sector temporaries to
assure that the supervisory responsibilities identified in
paragraph (a) of Sec. 300.501 of this subpart are carried out by
the temporary help service firm. At the same time, agencies must
give technical, task-related instructions to private sector
temporaries including orientation, assignment of tasks, and
review of work products, in order that the temporaries may
properly perform their services under the contract.
[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19511, May 2,
1996]
By
PWG on Tuesday, January 07, 2003 -
08:45 am:
Phil:
Can you shed some light on your comment.
"However, if the work is not temporary then an activity MUST
hire a government employee through the Civil Service system."
Actually I was initially operating with the same understanding
but I did some research and I have been unable to identify any
regulation or written document to support that concept. I know
that personal services is a consideration but I am confident
that we can prepare a SOW and manage a contract/task order in a
way which would satisfy any constraints imposed by a prohibition
on personal services. Is there something unique about a
Receptionist/Clerical position which mandates that if the
support requirement is permanent (and ours defintely is) that we
must hire an individual through the Civil Service system rather
than contract for the support?
By
formerfed on Tuesday, January 07,
2003 - 10:00 am:
PWG,
There's really nothing unique about receptionist/clerical
support other than the regulations that specifically mention
contracting for temporary services. One could apply the same
concepts to just about any function. The need for short term
support was so critical in the 1980's that OFPP decided to
specifically address the issue. It is ironic that receptionist
duties are really personal but the regulations say it's not. I
remember reading the OFPP responses to public comments to the
Federal Register notice on the proposed rule. It went something
like this - "contracting for temporary services do not
constitute personal services. Personal services create an
employer-employee relationship. This is not the case here. An
employer can hire and fire, reward and discipline, and provide
salary increases. The government can do none of this.
Consequently, these are not personal services." Talk about
creative thinking!
By
FormerCO4AF on Tuesday, January 07,
2003 - 10:53 am:
PWG
My interpretation of the FAR's reference to temporary services
time restriction is for those positions that are required on a
temporary basis.
Lets say a Government employee has a baby and is taking
maternity leave. This is truly a temporary requirement and will
meet the time restrictions.
Let's counter that with, an employee retires/quits and the
Government decides not to do a direct hire but contract instead.
As it is not a temporary hire, the time constraints do not
apply.
Personal service is in how you write the SOW and how the
contract is administered.
By
FormerCO4AF on Tuesday, January 07,
2003 - 11:04 am:
Formerfed;
The OFPP comments make perfect sense to me. If there are
positions used industry wide, such as word processing, secretary
etc..., that covers a broad spectrum of tasks, why can't the
Government be able to tap into that service without the
implications and the approvals required for a personal service?
I am a firm believer that there is too much attention/push for
outsourcing, but temporary hires are an easy and effective stop
gap for short term fills. The overhead costs for hiring a temp
fill are way more costly than writing a purchase order for a
temp fill.
By
formerfed on Tuesday, January 07,
2003 - 11:22 am:
FormerCO4AF,
Do you think OFPP's comments and rational make sense and apply
to all services and not just temporary secretarial/clerical
ones?
By
FormerCO4AF on Tuesday, January 07,
2003 - 12:02 pm:
Formerfed,
Absolutely. My interpretation/understanding of the FAR is that a
personal service is employee/employer relationship.
If you contract for an individual for Word Processing support
that is non-personal. If you as a Government employee also have
that person take out the trash, or clean a window, or help out
in the warehouse moving boxes, now its a personal service.
Likewise, if you reward the individual for finishing a difficult
word processing project early, it could be seen as creating an
employee/employer relationship. Although notification to the
company in reference to THEIR employees exceptional performance
would be warranted and ecnouraged.
You could do the same thing with a janitor, warehouse support,
vehicle maintenance support etc...
The Government does not provide salary increases. They identify
level of effort and expectations of the contract.
I have a service contract that provides CADD operators. The
Service contract act identifies multiple levels of competancy
and has a basic rate for each, Ie; CADD operator I, CADD
operator II etc... We have each level identified on our IDIQ and
when writing task orders we identify the level of expertise we
are requiring and willing to pay for. Of course rates are
adjusted annually based on new wage determinations.
By
PWG on Tuesday, January 07, 2003 -
12:23 pm:
Based on the comments I have received so far, I see no
regulatory reason I cannot issue a contract or purchase order
for permanent Receptionist or Clerical support as long as I
write the SOW and administer the contract in a manner consistent
with personal services guidelines. My dilemma remains though,
GSA does not have a FSS for permanent or long-term
Receptionist/Clerical support. That would mean I would need to
advertise and compete an open market procurement and that is
something I was trying to avoid. Any suggestions?
By
FormerCO4AF on Tuesday, January 07,
2003 - 12:36 pm:
PWG
Get with your SBA and look on Pronet for an available 8(a) firm.
If there's one eligible do a sole source 8(a) set aside.
By
cm on Wednesday, January 08, 2003 -
10:26 am:
In the agency I work for there is a requirement that
any such action be run through the personnel office. There are a
couple of reasons why that may not apply to your agency but I
would encourage you to check first. Oftentimes such actions can
run afoul of the Civil Service Reform Act.
By
Anon2U on Wednesday, January 08,
2003 - 05:55 pm:
We have cut orders every 3 months for years to keep
personnel on the job and not exceed 120 days. They use 90 days
to spread the funding quarterly.
Why? Congress passes a new law or the president makes an
executive order. New work is created or the old mission
increases. The Human Relations Office refuses to create new FTE
positions, so the Program Manager has to hire personnel any way
he can. Sometimes the Under Secretary has to contract the
Program Manager too.
We have hundreds, maybe thousands. I am sure no one knows how
big the shadow government really is. No one has ever asked us
for a count(we probably couldn't do one anyway). Some offices
have one FTE, a few PSCs, and several contractors from several
bodyshops. One office had the FTE get a new job and the
contractors ran the office for 6 months, but when asked who was
in charge, told us they didn't know. They were trying to request
their own contracts.
It is a mess in many civilian agencies and everyone wants to
pretend it isn't. The administration and Congress don't want new
FTE positions because they want to "downsize" the government.
Funny thing though, our smaller government has dozens more
buildings than ever before. Now why is that so?????
By
Phil C. on Thursday, January 09,
2003 - 12:13 am:
PWG
I concur with CM who said to check with your personnel office.
That was part of the process at activities I've worked at.
Whenever we were contemplating hiring a contractor to perform
work that could be done by Civil Service, we contacted personnel
and they had a chop on the paperwork. Moreover, being we had a
few unions at the activity we wanted to make sure everything met
the required legal burden before we awarded the contract. It is
my understanding that activities do not have carte blanch to
hire contractors to perform work that can be done by Civil
Service.
In my opinion, some some activites circumvent Civil Service laws
by not hiring Civil Service employees. Rather, they continue to
award contracts for 90-120 days at a time to perform the same
job over and over again. As described by Anon2U of Wednesday,
January 08, 2003 - 05:55 pm. In those cases, common sense tells
me that the position is permenant and thus should be classified
and filled through the Civil Service system.
To me the temporary call is common sense: temporary being we
just received a new software system and have to keypunch all the
old records into it. Estimated completion time is 90 days, once
it's done there will be no need for the data-entry person. I
think that would be temporary.
However, it appears your activity requires a receptionist at the
front desk from 8:00 a.m. to 5:00 p.m. Mon-Fri, 52 weeks a year
to greet visitors, answer the phone, make copies, etc. to me
that's not temporary and thus must be filled through the Civil
Service system.
By
PWG on Thursday, January 09, 2003 -
08:57 am:
Phil:
Yes you are correct that our activity requires a receptionist
from 8:00 a.m. to 5:00 p.m and I agree that our requriement is
not a temporary one. However, you state that hiring a contractor
rather than using the Civil Service system is circumventing a
law and that we must fill the position via the Civil Service
system. What law? I would like to read it. Can you please give
me a specific citation. Are you referring to the CFR or the USC
or something else?
By
formerfed on Thursday, January 09,
2003 - 09:43 am:
PWG,
I believe what Phil is referring to is 5 U.S.C part 21 starting
at 2101. That says the employment of individuals by the
government must be accomplished using civil service laws. Where
confusion arises is that the concept of contracting for
temporary services allows the government to contract for
clerical services on an interim basis for work that usually is
done by federal employees. In other words, we start with a given
that government employees normally perform the work but due to
some situation, the government needs work of a temporary nature.
That’s the reason behind the 120 day period talked about
earlier.
However this fails to recognize that contracting for work is
permissible when the work is nonpersonal in nature. So if you
want to contract for non-personal work it’s okay. If you plan to
contract so the work is personal in nature, you can’t and must
do it in accordance with civil service laws.
By
Phil C. on Friday, January 10, 2003
- 03:13 am:
Formerfed
Thanks for clarifying my posting and referencing 2101.
Phil
By
PWG on Friday, January 10, 2003 -
08:11 am:
Thanks for the clarification. I don't think that will
be a problem for us because we don't intend to contract for
personal services. We plan to use a non-personal, performance
based, statement of work for Receptionist Services. I don't
believe that Receptionist services are defined anywhere as being
inherently personal services or inherently a function of the
Government. If I am wrong on that point please point me in the
right direction. It seems however that our challenge will be to
effectively draft a non-personal, performance based work
statement.
By
GeneJ on Thursday, January 16, 2003
- 01:14 pm:
Do the existance of labor hour contracts as a contract
type under GWAC contracts like GSA Millennia square with the
above discussions? I can't make it work in my mind but maybe I'm
reading too much into this.
GeneJ
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