SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

° Preparing cost estimates/Independent Government Cost
Estimates.

e Approving any contractual documents, to include documents
defining requirements, incentive plans, and evaluation criteria.

¢ The drafting of Congressional testimony, responses to
Congressional correspondence, or agency responses to
audit reports from the Inspector General, the Government
Accountability Office, or other Federal audit entity.

¢ Establishing performance goals, priorities, and schedules.

A general list may be found at FAR 7.503(c).

Further, when providing support to the Agency, no EPA contractor shall
be asked to provide service outside the scope of the contract.

Functions that are not Inherently Governmental
igh

The following list shows services and actions that are not considered to
be inherently governmental functions. However, they may fall in that
category because of how the contractor performs under the contract,
or the manner in which the Government administers contractor
perfotmance. When contracting for such services and actions,
agencies should be fully aware of the terms of the contract, contractor
performance, and contract administration to ensure that appropriate
agency control is preserved.

This is an illustrative listing, and is not intended to promote or discourage
the use of the following types of contractor services:

° Services that involve or relate to budget preparation, including
workload modeling, fact finding, efficiency studies, and should-
cost analyses, etc.

° Services that involve or relate to reorganization and planning
activities. ©


SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

Resources

For more information, please contact your local procurement office or
legal counsel, or research these resources.

e Federal Acquisition Regulation, (Subparts 7.5, 9.5 and Part 37).

e Office of Federal Procurement Policy (OFPP Policy Letters
92-1 and 93-1).

e Environmental Protection Agency Acquisition Regulation
(EPAAR).

e Your local Procurement Office.
Your local Legal Counsel Office.


SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

Personal Services

Contracted support services contracts may be either personal or non-
personal in nature. The Contracting Officer is responsible for determining
whether the services are personal or non-personal. Personal services
contracts shall not be awarded unless specifically authorized by Congress.

A personal service contract results when Government personnel assume
the role of instructing, supervising, or controlling a contractor employee's
work on a continuing basis (i.e., keeping track of their time, requiring
contractor employees to report directly to federal employees, referring

to contractor employees as, “my contractor or my employees”, ). When
EPA exercises direct supervision and control over contract personnel, the
services become personal, and are, therefore, improper and prohibited by
law.

The following examples illustrate situations in which the services
obtained have become personal services.

¢ When EPA restricts contractor employee qualifications to a
particular person.

+ When EPA reviews the performance of contractor personnel
rather than the final product or service.

+ When the contractor employees are used interchangeably with
EPA personnel to perform the same or similar functions.

¢ When contractor employees are required to follow EPA leave
policies.

¢ When EPA personnel directly advise individual contractor
employees on how to perform work assigned to that contractor
employee.

‘The Federal Acquisition Regulation provides adequate guidance and
procedural information which, if appropriately followed, should ensure
that contracts for support services do not enter the realm of personal
services. Appropriate care and attention can prevent personal service

problems.
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SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

e Services that involve or relate to analyses, feasibility studies, and
strategy options to be used by agency personnel‘in developing
policy.

¢ Services that involve or relate to the development of regulations.

e Services in support of acquisition planning.

¢ Contractors providing assistance in contract management (such
as where the contractor might influence official evaluations of
other contractors).

+ Contractors providing technical evaluation of contract proposals.

Contractors providing help in the development of statements of
work.

e Contractors providing support in preparing responses to
Freedom of Information Act requests.

¢ Contractors providing inspection services.

e Contractors providing legal advice and interpretations of
regulations and statutes to Government officials.

A general list may be found at FAR 7.503(d) (See FAR 37.114 for
additional insights).

Another critical area of support service contracting focuses on the

kind of working relationship that exists between Federal employees

and contractor employees. Inappropriate relationships may lead to
situations where contractor employees perform services for Federal
employees, which is contrary to civil service laws that normally require
Federal agencies to obtain its employees by direct hire under competitive
appointment.


SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

contract, the contracting officer performs an analysis of the contract to
determine the potential for any conflicts. After award, proper contract
management practices require that both program and procurement
personnel actively monitor the contractual effort to identify and mitigate
potential conflicts. Awareness of these issues helps to ensure that the
Government's best interests are not compromised.

The following guidelines may be applied to determine the potential for
conflicts of interest:

Can the potential offeror perform under the contract in such a
way as to devise solutions or make recommendations that would
influence the award of future contracts to that contractor?

Has the potential offeror participated in earlier work involving
the same program or activity that is the subject of the present
contract, wherein the offeror had access to source selection
information or proprietary information not available to other
offerors competing for the contract?

Will the contractor be evaluating a competitor's work?

Does the contract allow the contractor to accept its own products
or activities on behalf of the Government?

Will the work under this contract put the contractor in a position
to influence Government decision-making, e.g., developing
regulations, that will affect the contractor's current or future
business?

Will the work under this contract affect the interests of the
contractor’s other clients?

Are any of the potential offerors, or their personnel who will
perform the contract, former agency officials who — while
employed by the agency — personally and substantially
participated in (a) the development of the requirement for, or,
(b) the procurement of, these services within the past two years?


Attachment 4

EPA Support Service Contracting Guide


SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

Furnishing or sharing office space with employees of contractors is
sometimes critical and necessary. However, use caution to ensure that
controls and processes are in place to prevent personal services situations.
For example, it is mandatory to have a clear distinction between a
contractor and Federal employee (that is, contractor personnel must
indentify or be identified as a contractor, their badge must clearly state
that they are contactors. Efforts should be taken to ensure that they do
not occupy the same space with Federal employees unless it is required).

Each contract arrangement must be judged on its own facts and
circumstances, but the key question always will be:

“Will the Government exercise relatively continuous supervision and
control over the contractor personnel performing the contract?”

If the answer is “Yes,” due to either the contract terms or the manner in
which the contract is administered, the services are personal in nature,
and an improper employer-employee relationship exists.

Conflicts of Interest

Another potential area of concern involves conflicts of interest. A conflict
of interest occurs when a person is unable to render impartial assistance
or advice to the Government because of other activities or relationships,
or when a person has an unfair competitive advantage. Contractor
personnel can be in unique positions where, due to their contractual
responsibilities, they may provide advice to the Government, or they may
have access to source selection information or proprietary information
of competing contractors. It is important to ensure that these contractor
personnel are objective and impartial in their business relationships

with the Government, and that they do not gain an unfair competitive
advantage in seeking future Government work. Prior to award of a

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SUPPORT SERVICE CONTRACTING
WHAT YOU NEED TO KNOW AS A FEDERAL EMPLOYEE

Management support services: which include, but are not limited to,
analyses of workload and work flow, directives management studies,
manpower systems analyses, assistance in the preparation of program
plans, training and education, analyses of Agency’s management
processes, and any other reports or analyses directed toward improving
the effectiveness, efficiency, and economy of management and general
administrative operations.

‘The use of a support service contract can be an economical way to
accomplish the Agency’s mission. However, it is important for Federal
employees to be aware of the vulnerabilities unique to the acquisition of
these services, especially regarding matters involving the type of work
performed by contractors, and the working relationship that exists
between Federal employees and contractor employees.

A basic principle of support service contracting states that contracts are
not to be used for the performance of inherently governmental functions.
This is why EPA maintains resources to perform its basic governmental
functions. An inherently governmental function is defined as one that

is so intimately related to the public interest as to mandate performance
by Government employees. These activities require the exercise of value
judgment in making decisions for the Government.

The following examples illustrate services considered to be inherently
Governmental and should not be obtained under contract or performed
by a contractor, but by federal employees only:

+ The determination of Federal program priorities for budget
requests.

¢ The determination of agency policy, such as determining the
content and application of regulations, among other things.

+ Speaking before groups as a representative of the Agency.

e Drafting work assignments or technical direction documents
under a contract.


SUPPORT SERVICE CONTRACTING
What You Need to Know as a Federal Employee

Background

EPA spends a significant amount of its contracting dollars on support
services. While contracting for such services helps the Agency meet its
needs, doing so can create a potential risk of overreliance on contractors
for critical activities related to an agency’s missions and operations. As
such, we must analyze our needs and recognize the advantages and
limitations of using these types of contracts, as well as the responsibilities
associated with their use.

This brochure will provide general key information to those Agency
personnel acquiring support services.

What is a Service Contract?

The Federal Acquisition Regulation (FAR) Subpart 37.101 defines a
service contract as “a contract that directly engages the time and effort
of a contractor whose primary purpose is to perform an identifiable task
rather than to furnish an end item of supply”

Contracts for Support Services cover a vast array of professional and
technical services, and may include:

Maintenance and operations services: which include, but are not
limited to, general housekeeping and custodial services, physical
security, employee health services, logistics and maintenance, records
management, security support services, consulting services, enforcement
support services, audit services, management support services,
information technology support, studies, analyses and evaluations.

Technical support services: which include, but are not limited to,
development of specifications, system definition, system review and
reliability analyses, trade-off analyses, economic and environmental
analyses, which may be used in EPA’s preparation of environmental
impact statements, test and evaluation, surveys or reviews to improve the
effectiveness, efficiency, and economy of operations.


U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA)
OFFICE OF ACQUISITION MANAGEMENT (OAM)

SUPPORT SERVICE CONTRACTING
What You Need to Know as a Federal Employee