Defense Contracting: Additional Personal Conflict of Interest Safeguards Needed for Certain DOD Contractor Employees
Released: 2008-03-07T00:00:00

Letter

Background

DOD hires contractors to provide a wide range of services that may include basic services (custodial and landscaping); administrative types of services (travel and management support); and complex professional and management (i.e., advisory and assistance) services that closely support inherently governmental functions, decisions, and spending, (acquisition support, budget preparation, developing or interpreting regulations, engineering and technical services, and policy development). Contractor employees often work inside DOD facilities, alongside DOD employees, to provide these services.

DOD’s increased spending on services in recent years indicates there are a large number of contractor employees working side-by-side with federal employees. In fiscal year 2006, DOD obligated more than $151 billion on services contracts, a 78 percent real increase since fiscal year 1996. Overall, according to DOD, the amount obligated on services contracts in fiscal year 2005 exceeded the amount the department spent on supplies and equipment, including major weapon systems. Some categories of spending on services have grown significantly in recent years. For example, obligations for professional, management, and administrative support has grown about 161 percent from 1996 to 2005; obligations for medical services grew by more than 400 percent during the same time period.

Several reasons are behind DOD’s increased reliance on contractors for services. In addition to the belief that it is more cost-effective to hire contractor employees instead of government employees, reasons include the need for skills and expertise not currently found in DOD; the flexibility and the relative ease in obtaining necessary support from contractor employees instead of hiring more government employees; and ceilings on the authorized number of government employees.

Contractor Employees Outnumber DOD Employees at Many Offices That GAO Reviewed

DOD has not compiled departmentwide data on the numbers of contractor employees working at its facilities. Indications are, however, that significant numbers of contractor employees are working side-by-side with government employees in certain segments of the department, based in part on information we obtained from 21 DOD offices we reviewed. As shown in table 1, at 15 of these offices, contractor employees outnumber DOD employees and the percentage of contractor employees in the remaining offices ranges from 19 to 46 percent.

For the offices we reviewed, contractors are supporting key mission-critical tasks that have the potential to influence DOD decisions. Some of these tasks are similar to functions performed by federal employees. For example, at the front end of the acquisition process, contractor employees who work in various DOD program offices study alternative ways to acquire desired capabilities, help develop requirements, and help design and evaluate requests for proposals as well as responses to those proposals and provide advice on the past performance of external contractors competing for that work. In the course of an acquisition, contractor employees recommend actions to program offices to correct other contractors’ performance problems, they analyze other contractors’ cost, schedule and performance data, and they assist in award-fee determinations for other contractors. In addition, contractor employees help DOD program offices develop long-range financial plans as well as yearly budgets. They also assist in administrative tasks to support program offices by tracking travel budgets and researching and reconciling payment discrepancies.

Although we view the types of roles being played by contractor employees as closely supporting inherently governmental functions, some DOD officials had a different perspective. That is, when discussing contractor employees’ roles in the decision-making process, program managers we spoke with characterize contractor employee involvement as “technical” input into the decision-making process versus direct involvement in the decisions themselves. It should be noted, the Federal Acquisition Regulation (FAR) defines contractor participation in the evaluation of contract proposals as one of those functions that may approach being in the inherently governmental function category.

Appendix IV provides more details on the key services contractor employees are performing in the DOD offices we reviewed.

Few Laws or DOD- Wide Policies Address Personal Conflicts of Interests among Contractor Employees

Contractor employees are not subject to the same laws and regulations that are designed to prevent conflicts of interests among federal employees. While the DFARS and the FAR require that the companies that provide contractor employees to DOD have written ethics policies, no departmentwide or FAR policy obliges DOD offices using contractor employees to require that they be free from personal conflicts of interest. On the other hand, some program managers, realizing the risk from potential personal conflicts of interest, have established their own safeguards for particularly sensitive areas where contractor employees provide support to decision processes. For example, all DOD offices we reviewed that used contractor employees in the source selection process use additional safeguard controls such as contract clauses designed to prevent personal conflicts of interests. The same offices, however, assessed risk differently when it came to other types of activities that contractors perform--with only 6 of 21 offices using similar conflict of interest contract clauses for activities such as requirements development, cost estimating, and test and evaluation.

Most of the firms we visited have ethics policies that address personal conflicts of interests, but only three directly require their employees to identify potential personal conflicts of interest with respect to their work at DOD so they can be screened and mitigated by the firms. Lastly, because of recent public scrutiny regarding a conflict of interest issue with a high-level FFRDC official, in January 2007 DOD revised its policy for employees of FFRDCs.

Most Laws and Regulations Designed to Prevent Conflicts for Federal Employees Do Not Apply to Contractor Employees

Several laws and regulations exist that address situations where individuals performing service to the government are, or might appear to be, unduly influenced by a personal financial interest. These include prohibition on bribery and kickbacks; bans on participating in matters affecting personal financial interest; and requirements relating to private employment contacts between certain procurement officials and potential bidders on government contracts. For federal employees, misconduct in some of these areas also violates criminal statutes with potentially serious consequences, including dismissal, prosecution, fines, and incarceration. As shown in table 2, there are very limited prohibitions—relating to public corruption involving criminal bribery activity—that apply to both DOD and defense contractor employees.

The type of public corruption addressed by laws for both federal and contractor employees concern bribes, kickbacks, or other forms of graft. The anti-bribery law seeks to prevent the type of “quid pro quo” where an official action was taken in return for money, favors, travel, gifts, or other things of value. Examples of this law being applied to bribery cases involving contractor employees working on government contracting matters are as follows:

A Navy contractor employee at the Space and Naval Warfare Systems Center pled guilty in 2006 to accepting bribes from a freight forwarding company. In exchange for awarding freight transportation contracts to the company, this contractor employee received items valued at more than $10,000, including extravagant dinners, concert and NASCAR tickets, weekends at a bed-and- breakfast inn, jewelry, and “spa days” at a department store. Investigators discovered that coincidentally, the freight company’s business was virtually nonexistent before this contractor employee began awarding the company contracts that eventually totaled over $700,000. The contractor employee was sentenced to a year in prison and ordered to help repay the government $84,000.

An Army contractor employee working for the Coalition Provisional Authority in Iraq was put in charge of over $82 million in funding for an area south of Baghdad. The contractor employee quickly began accepting bribes in the form of cash, cars, jewelry, and sexual favors provided by a U.S. citizen who owned and operated several companies in Iraq and Romania in exchange for steering lucrative contracts in the business owner’s direction. Investigators recovered incriminating e-mail traffic, including one e-mail from the contractor employee to the business owner exclaiming, “I love to give you money!” The contractor employee pled guilty in 2006 to bribery, conspiracy, and money-laundering and was sentenced to 9 years in prison, 3 years of supervised release, and ordered to forfeit $3.6 million.

DOD Lacks a Departmentwide Policy Requiring Safeguards for Personal Conflicts of Interest with Contractor Employees

DOD lacks a departmentwide policy requiring safeguards against personal conflicts of interest for contractor employees. For example, although DOD contracting policy in DFARS encourages companies providing contractor employees to DOD to have written ethics policies, it fails to require that contractor employees be free from conflicts of interest or to deploy other safeguards to help assure that the advice and assistance received from contractor employees is not tainted by personal conflicts of interest. This policy also fails to address procurement integrity-related issues involving contractor employees contacting prospective bidders to DOD contracts about future employment.

Since December 2007, the FAR has required certain contractors to set and follow written codes of business ethics and conduct. However as shown in table 3, this new FAR requirement for contractors’ ethics programs— which were modeled on some of the DFARS requirements—will be insufficient in addressing DOD’s lack of a departmentwide policy requiring safeguards for personal conflicts of interest with contractor employees. This is because, like DOD’s policy, the new FAR requirements also lack specific provisions to prohibit conflicts of interest or employ other safeguards to assure that the advice and assistance received from contractor employees is not tainted by personal conflicts of interest.

Some DOD Offices Have Safeguards Addressing Contractor Employees’ Conflict of Interest in Particularly Sensitive Areas

While DOD does not have a policy regarding contractor employee conflicts of interest, many DOD offices believe there is a risk of personal conflicts of interest when contractor employees participate in source selection activities. All of the 19 DOD offices we reviewed had established safeguard procedures such as contract clauses or self-certifications to prevent conflict of interests for contractor employees for the source selection process, as shown in table 4. By contrast, program offices assessed risk differently when it came to other types of contractor employees’ participation in decision making. Only 6 of the 21 offices had personal conflict of interest safeguards, such as contract clauses for other types of contractor employee services that involve advice and assistance on governmental decisions—which, for example, could include services related to requirements development, test and evaluation, and cost estimation.

The Air Force’s Electronic Systems Center uses a contract clause as a safeguard to prevent conflicts of interest for contractors involved in source selection and other activities critical to mission-support and government decision making. According to an Air Force contracting official, this contract clause, highlighted in greater detail in table 5, affects 38 prime contractor companies, with an estimated value of $280,000,000 in task orders in 2007. An Air Force official told us that this clause has been used for at least 10 years in recognition of the close relationship between decision makers and federal employee advisors—who are both required to identify and avoid financial conflicts—and contractor employees directly advising them in these roles. Thus, the clause provides a mechanism to address potential and actual contractor financial conflicts that could affect the integrity of the procurement system.

Also, the Army’s Communications Electronics Lifecycle Management Command developed a personal conflict of interest policy and contractual procedural safeguards for its contractor employees after our June 2007 visit to three of its offices where Army officials told us they had not previously considered the need to do so. According to a policy alert sent out in August 2007 to the command’s contracting activities, an underlying principle behind the policy is preventing the existence of conflicting roles that might bias a contractor employee’s judgment. According to the new policy, conflicts of interest are more likely to occur in support services contracts, such as management support; consultants; preparing statements of work; and performance of technical evaluations. Table 5 also highlights the command’s new safeguards in greater detail.

Appendix V includes the full text of both contract clauses.

We obtained information from one defense contractor about how this company—a large business—has implemented the clause required under the company’s subcontract with an Electronic Systems Center prime contractor. According to the contractor’s senior vice president, the company developed policy and procedure for annual financial conflict of interest employee certifications. According to the senior vice president, this conflict of interest safeguard applies to every employee working on this subcontract. The company’s safeguard is similar to the financial disclosure process used for DOD employees covered by federal conflict of interest safeguards. For example, the company’s instructions to employees state that the annual financial disclosure and certification process is done to assure that each employee is “free from any actual, potential, or apparent financial conflicts of interest with work he or she may perform on this contract.”

In 2006, a conflict of interest for one of this company’s employees was disclosed on the annual certification. According to the company’s senior vice president, after the employee disclosed that his wife had taken a job with one of the center’s prime contractors, the company removed him from performing service under the subcontract. That was because the company’s annual review revealed not only that the employee might have a financial conflict of interest that could not reasonably be mitigated with the subcontracted work he was performing at the Electronic Systems Center, but he had not complied with the company’s ongoing requirement for employees to avoid prohibited financial interests and to immediately notify the company when financial interests change from what was certified in an employee’s last disclosure.

Firms Policies and Practices Vary

We analyzed the ethics program documents available for 22 of the 23 contractors we reviewed and found that 18 have written policies and procedures that address avoidance of personal conflicts of interest by their employees. However, the policies require their employees to avoid a range of interests—such as owning substantial stock in competitors or suppliers—that conflict with the firms’ interests. Except in three cases, the policies did not require written disclosure forms identifying potential conflicts of interest with the employees’ work at DOD.

More specifically, our review of the documents showed that: policies for 4 of the contractor firms did not address avoidance of personal conflicts of interests at all; policies for 18 of the firms did address avoidance of personal conflicts of interest, but just 3 specifically required written disclosures identifying potential conflicts of interest with respect to their work for customers, including DOD, so they can be screened and mitigated by the firms; and 16 of the firms extended their conflicts policies to the employees’ family members.

Our analysis of contractors’ ethics documents found variation in how the contractors’ policy and procedural safeguards address how employees’ financial interests that could conflict or create the appearance of a conflict in the work they do for clients such as DOD. For example, several companies have conflict of interest policies addressing business ethics and standards of conduct requiring all employees to avoid having a range of financial or personal interests that would interfere in any way with their work for the company and could make others question the company’s integrity, or give the appearance of impropriety. These contractors’ conflicts of interest policies generally describe a range of potential activities that include employees’ financial or other interests, arrangements, and outside business interests and personal relationships that could pose an actual or the appearance of a conflict to be avoided.

In three cases, however, the policies required written disclosure forms identifying potential conflicts of interest related to work carried out for DOD. That is, three contractor firms we reviewed require their employees to disclose potential conflicts related to their work at DOD and have employees working at the Air Force, Navy, and Army advising and assisting on engineering development and operation of aircraft and missile programs and acquisition management support on a communications program. For example as presented below, two firms have measures for ensuring that their employees do not have personal interests that would conflict with their work at DOD. According to the firms’ ethics documentation, these measures are part of the corporate mission and values statements so that all levels of their employees are aware that their services to clients as well as individual and company decisions are based on core business values such as honesty and the highest standards of ethics and integrity. For example: One small business contractor has employees who work on a range of aeronautical systems programs of the Air Force Materiel Command. Their responsibilities for one of the offices we visited in the area of acquisition management include tasks in various phases of the acquisition cycle, such as development, award, management, and contract closeout. The company has a 3-page Financial Conflict of Interest Reporting Form—and according to company officials, it is modeled on the federal financial disclosure form—that each of its professional employees must submit when initially hired and annually thereafter. The contractor’s reporting form asks each employee if there are any personal or household financial interests in the matters dealt with under the Air Force contract, such as stock ownership in any of the contractors who are involved in the aeronautical systems programs that the employee works on as part of his or her tasks. The company’s vice-president stated that, as the employee’s supervisor, he evaluates reported interests on the financial conflict of interest form and reviews the circumstances in light of present and prospective duties of the individual to ensure that both actual and apparent conflicts of interest are avoided. According to the vice-president, he also decides on how any conflict or apparent conflict will be resolved, such as reassignment, divestiture, or disqualification.

A large business defense contractor has employees who work on missile programs under the Naval Sea Systems Command. Their responsibilities for the Navy include systems engineering and program office support, including contract management input for award fee deliberations and contract modifications. The company has a 1-page Certificate on Conflict of Interest, Relationships with Suppliers, and Standards of Business Conduct that, according to contractor officials, employees are required to submit annually by e-mail, fax, or on-line. The certification form requires yes or no answers to seven questions that serve to prompt each employee to disclose certain interests in the company’s suppliers or prospective suppliers, such as whether they or a member of their family has a substantial financial interest. The form also asks each employee if they or their family members have any other interest or agreement which may violate the Standards of Business Conduct or may otherwise result in an actual or perceived conflict of interest. According to the company’s ethics and Navy contracting managers, the annual conflict-of-interest certification process receives a fair amount of supervisory review and screening by corporate business ethics offices in order to prevent or mitigate actual or even the appearance of an employee being in a position with a personal conflict of interest.

Stricter Conflict of Interest Safeguards Recently Developed for DOD FFRDC Employees

DOD’s FFRDCs are private nonprofit organizations established to meet specialized or long-term research or development needs that cannot be met by existing government or contractor resources. For example, employees from FFRDCs may provide design and systems engineering expertise to major space or weapon acquisition programs, and even work along side DOD employees. They may be involved with conducting independent assessments of technical risk, management, cost, and schedule for particular programs or in broader research on international security and defense strategy, acquisition and technology policy, force management, and logistics.

In 2006, prompted by the aftermath of public and congressional scrutiny regarding a conflict of interest with the president of one DOD-sponsored FFRDC, DOD’s Deputy General Counsel (Acquisition and Logistics) reviewed the conflict of interest policies and procedures in place at each of DOD’s 10 FFRDCs. DOD’s review addressed FFRDC sponsoring agreements, contracts, and internal policies and procedures. DOD concluded that some of these documents failed to meet minimum FAR requirements and others needed revision to better protect DOD from conflicts of interest by FFRDC employees.

As a result, in January 2007, the Undersecretary of Defense (Acquisition, Technology, and Logistics) revised DOD’s policy adding stricter contracting safeguards for FFRDC contractors requiring them to have procedures that address personal conflicts of interest for FFRDC employees. DOD revised the policy to ensure that FFRDC employees operate in the public interest with objectivity and independence. DOD’s revised policy requires in part that each administrator of its FFRDCs do the following: maintain written, corporatewide conflict of interest policies for their employees; report any personal conflicts of interest to contracting officers or their representatives; provide annual compilations of personal conflicts of interest and their dispositions; maintain audit programs to verify compliance; establish policies for their employees that address all major areas of personal conflicts of interest including, but not necessarily limited to gifts, outside activities, and financial interest; set procedures to screen for potential conflicts of interest for all employees in a position to make or materially influence research findings and/or recommendations to DOD; provide initial and annual training to address ethics and conflicts of interest for affected employees; and designate an office responsible for ethics compliance and training.

All four FFRDC administrators that we contacted for this report had written corporatewide ethics policies and training for their employees prior to DOD’s new policy. According to FFRDC administrator officials, three of the FFRDCs have updated their ethics compliance program and policies, which include their training programs, and are in compliance with the new requirements. As of October 2007, a fourth FFRDC we contacted has yet to reach agreement with its Air Force sponsor organization on whether additional safeguards are necessary. Of the three FFRDCs that have already changed practices to implement the revised DOD-wide policy, there were some differences in how they changed their procedures to screen for potential conflicts of interest for all employees in a position to make or materially influence research findings and/or recommendations to DOD. For example, according to FFRDC administrator officials:

New requirements are being implemented by two of the FFRDCs for their employees to complete an on-line personal conflict-of- interest screening questionnaire as part of their initial assignment to a DOD-sponsored task. The on-line screening tool will prompt these FFRDC employees, on a task-by-task basis, to disclose and list any financial interests they, their spouse, or family members have in specific DOD prime and subcontractors pre-loaded in the FFRDC database for each defense weapon system or DOD program being researched or advised on under the FFRDC project. According to ethics officials for these two FFRDCs, any disclosure of financial interests from the on-line tool is reviewed by the employee’s project manager or supervisor as well as the ethics office to identity actual or potential conflicts of interest, which would then be mitigated in ways similar to practices for federal employees.

Instead of task-by-task screening, a third FFRDC’s procedures require all employees (except project directors) working on DOD tasks to submit annual disclosures identifying personal and family financial interests for review by supervisors and ethics offices to screen for actual or potential conflicts of interest in the employees’ tasks for DOD. Project directors are now required to submit financial disclosures task-by-task.

Range of Views Indicate Additional Conflict of Interest Safeguards Are Necessary for Contractor Employees

A majority of government officials we spoke with indicated support for changes in contracting policy to address risks from contractor employees having personal conflicts of interest when participating in matters affecting DOD’s decisions. Those closest to the situation—DOD program managers— all agreed that safeguards are needed for contractor employees participating in the source selection process. Moreover, some of these managers had also put in safeguards for contractor employees involved in other types of advisory and assistance tasks. However, a number of program managers as well as defense contractor company officials expressed concern that adding new safeguards will increase costs for the government and are unnecessary since government officials—not contractors—are the ones ultimately making the decisions. DOD oversight officials as well as OGE officials, however, believed additional safeguards are necessary to maintain public confidence, particularly since contractors are increasingly being involved in spending decisions, though this could be achieved through changes in policy and practice and changes in regulations rather than changes in the law. A congressionally mandated Acquisition Advisory Panel recently concluded that there is a need to assure that the increase in contractor employees’ involvement in agency activities does not undermine the integrity of the government’s decision-making process and that changes in the FAR should be considered to establish additional conflict of interest safeguards across agencies through contract clauses.

Program Managers’ Viewpoints

All of the 19 offices we reviewed established safeguard procedures such as contract clause or self-certifications to prevent conflict of interest for contractor employees when involved in the source selection process. At the same time, six offices had safeguards for contractors performing other types of advisory and assistance tasks. For example, the Army’s Communications Electronics Lifecycle Management Command and the Air Force’s Electronics Systems Center have recognized the need to prevent the existence of conflicting interests that might bias a contractor employee’s judgment and have developed contract clauses for other types of contractor employees who directly advise and assist federal decision- makers in those organizations. In addition, some of DOD’s program managers said they should require certain contractor employees to file financial disclosures with their companies so that they can screen for potential personal conflicts of interest in the work they do at DOD.

However, when it comes to using contractor employees to perform tasks other than source selection, some program managers believed that additional safeguards are unnecessary. In fact, some believed it could create a cost and oversight burden. For example, these managers also stressed that government officials are ultimately responsible for decision- making, not contractor employees. When we asked DOD officials to tell us about cases of improper conduct involving contractor employees, some officials also pointed out that very few cases of actual conflicts of interest or other ethics problems involving contractor employees have been publicly identified and in most of these cases, the situations were handled informally. They were also concerned that requiring contractor employees to abide by certain safeguards, such as submitting financial disclosure forms for government or contractor ethics review processes, could chase away qualified contractors from federal work.

Contractor Officials’ Viewpoints

We spoke to various company representatives responsible for managing their companies contracting business and/or employee ethics matters at the 21 DOD offices where we conducted our review. Some of the contractor company officials told us that they believed additional safeguards are not needed because their employees were aware that personal conflicts of interest are prohibited under their corporate ethics programs. Moreover, they pointed out that their employees would know to advise their supervisors of any potential conflicts, consistent with the companies’ ethics program procedures. Contractor officials also contended that the creation of new safeguards could drive up costs for the government because of contractor administrative costs for collecting and maintaining employee financial conflict of interest paperwork.

Company officials cited other reasons for not establishing additional conflict of interest safeguards for contractor employees, but we found evidence that contradicted these positions. For example, one reason was that defense contractor companies’ business ethics and standards of conduct for their employees are already consistent with the government’s ethics requirements for federal employees. Our review of 22 contractors’ ethics program documents found that they did not address the same issues that the government ethics programs are required to address. Also, in some cases, they were designed to protect the contractor’s interests, not the government’s.

Another reason was that the risk of conflicts of interest for contractor employees was low because it would be obvious if these employees tried to steer decision making to favor a personal interest or bias. Some contractor officials also stressed that the role that their employees were playing in decisions was minimal. Some government officials we spoke with, however, indicated that these types of inputs into decisions are not trivial and that it may not always be obvious when employees are providing biased information.

On the other hand, many company officials told us that if the federal government were to require contractor employees to submit financial conflict of interest certifications or disclosures, then the companies would comply in the interest of maintaining the public’s confidence in the integrity of government operations supported by contractor employees. In addition, a manager of one small business defense contractor said that the company’s personal conflicts of interest and ethical conduct policy already requires all employees to submit annual financial conflict of interest reporting forms when assigned to perform government work. He added that most support contractor employees are retired military and have been accustomed to abiding by government rules for 30 years.

Viewpoints of Ethics Officials and Senior Leaders

Senior officials within DOD responsible for ensuring integrity in employee conduct and in the contracting function as well as the OGE told us that they believed that there are risks associated with personal conflicts of interests not just in program offices that involve contractors in source selection, but those that use contractors in other ways to support spending decisions. In fact, during our review, DOD undertook steps to begin assessing the need for departmentwide policies for preventing personal conflicts of interests for its contractor employees.

OGE: OGE, which promulgates ethics guidance for the executive branch, has expressed concerns that current federal requirements and policies are inadequate to prevent certain kinds of ethical violations on the part of contractor employees. The office is specifically concerned with potential financial conflicts of interest, impaired impartiality, and misuse of information and authority. As such, additional conflict of interest safeguards should be targeted at contractor employees engaged in the types of services that influence governmental spending, contracting, and mission delivery decisions and concern the type of processes and operations upon which considerations of management and delegation must turn. OGE has also observed that federal and contractor employees work so closely on a day-to-day basis, it is difficult to distinguish whether employees are government or contracted and they see greater risks to the integrity of decisions given the growing influence that contractors appear to be having on government operations and expenditure of funds.

OGE has advocated policy changes to apply conflicts of interest requirements to contractors. In considering additional contract-based safeguards to ensure that the government’s interests are not compromised by contractor employees’ conflicts of interest, OGE’s acting director has expressed concerns in several areas, such as: advisory and assistance services support, especially those where contractor personnel regularly perform in the government workplace and participate in deliberative and decision-making processes along with government employees; management and operations contracts involving large research facilities and laboratories, military bases, and other major programs; and large indefinite delivery or umbrella contracts that involve decentralized ordering and delivery of services at multiple agencies or offices.

DOD ethics and general counsel officials: Defense ethics and other general counsel officials we spoke to from several DOD offices responsible for DOD-wide standards of conduct and ethics compliance had generally the same concerns raised by OGE. For example, according to the director of DOD’s Standards of Conduct Office in 2006, as DOD increases its integration of contractor employees into the actual administration of its organizations and offices, the larger the gap between employees in its blended workforce in terms of the conflict of interest requirements that apply only to federal employees, and the more difficult it becomes to ensure the integrity of government decision making. DOD ethics and general counsel officials also expressed concerns about risks associated with reliance on contractor employees, particularly when they perform many of the same advisory and management functions as federal employees. An Army general counsel official observed that contractor employees are exerting greater influence over Army operations given that the Army has lost expertise and leadership over the years.

Further, DOD ethics and general counsel officials stated that those contractor employees participating in and supporting the government’s decision-making processes should be subject to stricter conflict of interest rules so that agencies can better judge the objectivity of their advice to the government. An Air Force ethics official said his office has come across situations in which contractor employees would have been in violation of the government ethics rules had they been government employees. An Army general counsel official told us that not requiring financial disclosure statements from contractor employees poses the greatest risk to the integrity and impartiality of the work they perform under contract for the government. Unlike for federal employees who are prohibited under conflict of interest law from participating in a particular matter involving specific parties in which they have a financial interest, there is no way to know whether contractor employees are doing so.

In 2006, an approach to apply conflict of interest laws to contractor employees was identified by DOD’s Standards of Conduct Office director, who offered his personal views at one public policy discussion on the issue of contractor ethics that the FAR Council should consider some model language, or instruction to government agencies to include conflict of interest provisions within contracts.

DOD’s Directorate of Defense Procurement and Acquisition Policy (DPAP): The DPAP director concurred with the views of ethics officials across the department and recently directed a DOD panel examining various aspects of contracting integrity to specifically examine the need for departmentwide policies to prevent conflicts of interest with its contractor employees. The Panel on Contracting Integrity is comprised of senior leaders representing a cross section of DOD. The director told us that existing policy may be inadequate given the growing reliance on contractor employees across DOD program offices. He was specifically concerned with contractors who are involved in source selection and contract management.

Acquisition Advisory Panel: This panel, comprised of recognized experts in government acquisition law and policy, was established by a congressional mandate to examine and report on ways to improve federal acquisition practices. According to the panel, the trend toward more reliance on contractors in the federal workplace raises the possibility that the government’s decision making could be undermined as a result of personal conflicts of interest on the part of contractor employees. The panel concluded that, in view of the tremendous amount of federal contracting for services, and particularly in the context of the blended workforce, additional safeguards to protect against personal conflicts of interest by contractor employees are needed. The panel believed that conflict of interest safeguards are more critical for certain types of contracts (primarily services contracts) and that further study was needed to identify those types of contracts where the potential for contractor employee conflicts of interest raises a concern.

The panel believed that achieving greater governmentwide consistency in safeguarding against contractor employees conflicts of interest would be beneficial, in that it would allow agencies to implement best practices and it would also help to assure that all bidders on federal contracts—whether successful or not—are aware of their responsibilities and that they structure their operations knowing what was expected of them. The panel concluded that it was not necessary to adopt any new federal statutes to impose additional conflict of interest safeguards on contractors or their employees. Rather, the additional safeguard requirements should be imposed—where appropriate—through contract clauses.

As a result, the panel recommended to the Office of Federal Procurement Policy (OFPP) that the FAR Council should determine when contractor employee personal conflicts of interest need to be addressed, and whether greater disclosures, specific prohibitions, or reliance on specified principles are needed to maintain public confidence in the integrity of government operations reliant on contractors. The panel recommended that the FAR Council’s efforts should consider whether development of a standard ethics clause or a set of standard clauses that establish the contractor’s responsibility to perform the contract with a high level of integrity needs to be included in solicitations and contracts.

According to OFPP officials, the FAR council was asked to initiate a case review process to consider changes to the FAR to include new conflict of interest safeguards for contractor employees. This anticipated action would be separate from the November 2007 amendment to the FAR requiring certain contractors to have written codes of ethics and business conduct, employee ethics and compliance training programs, and internal control systems to guard against violation of these codes. The final rule does not speak to development of a standard ethics clause concerning when contractor employee personal conflicts of interest need to be addressed.

Conclusions

The environment in which DOD makes its most significant spending decisions is changing. As programs grow more complex and costly, DOD has increasingly become reliant on technical, business, and procurement expertise supplied by contractors—sometimes to a point where the foundation on which decisions are based may be largely crafted by individuals who are not employed by the government, who are not bound by the same rules governing their conduct, and who are not required to disclose whether they have financial or other personal interests that conflict with the responsibilities they have performing contract tasks for DOD. To its credit, DOD has recognized that this condition and its risks needs to be studied and addressed by adding personal conflicts of interest among contractor employees as a tasking for its Panel on Contracting Integrity and adopting stricter safeguards for FFRDC employees early in 2007. Such attention is important.

While few cases of improper conduct have been publicly identified, there are also few safeguards in place to identify whether personal conflicts of interest even exist. The new FAR requirements making it mandatory for certain contractors to set and follow written codes of business ethics and conduct will not assure that the advice and assistance received from contractor employees is not tainted by personal conflicts of interest. The officials in most offices we reviewed that operate within this environment believe that the risk to the government is considerable enough to warrant safeguards when contractors are involved in source selection; at least some believe that risk extends to contractors that are involved in other activities that feed into spending decisions. Arguments that no change is needed focus on costs, which may be calculable. Yet, costs of contractor employees constructing options for their personal gain—an outcome increasingly likely based on sheer numbers—would likely never be known, let alone calculable as long as there is no transparency. Changes to current policy and practices that are targeted, tailored and implemented at the lowest practicable level are a way to minimize the cost of addressing personal conflicts of interest among contractor employees and to maximize the value of any additional safeguards. Several program offices have already demonstrated this is possible through the use of contract clauses and processes to identify potential conflicts and at least one small company has adopted similar safeguards on its own.

Recommendations

We recommend that the Secretary of Defense direct the Under Secretary of Defense (Acquisitions, Technology, and Logistics), to develop and implement policy that requires personal conflict of interest contract clause safeguards for defense contractor employees that are similar to those required of DOD’s federal employees. In developing its policy, DOD should include requirements for contractor companies to identify and prevent personal conflicts of interest for certain of their contractor employees who are performing contracted services that provide inputs to DOD’s decision- making in such mission-critical areas as the development, award, and administration of government contracts and other advisory and assistance functions.

In developing its policy, DOD should include the following requirements for defense contractor companies: require a written code of business ethics and conduct applicable to contractor personnel working on certain DOD mission-critical advisory and assistance type services to: prohibit contractor personnel from participating in a government contract in which they have a personal conflict of interest; require contractor personnel to avoid the appearance of loss of impartiality in performing contracted duties for DOD; require contractor personnel to disclose personal conflicts of interest to their employer prior to beginning work on these contracts; require the contractor to review and address any personal conflicts of interest its employees might have before assigning them to deliver contracted services; prohibit contractor personnel from using non-public government information obtained while performing work under the contract for personal gain; prohibit contractor employees providing procurement support services from having future employment contact involving a bidder in an ongoing procurement; impose limits on the ability of contractors and their employees on accepting gifts (defined as almost anything of monetary value, such as cash, meals, trips, or services) in connection with contracted duties; and prohibit misuse of DOD contract duties to provide preferential treatment to a private interest.

In developing its policy, DOD should include requirements for contractor companies to: Report any contractor personnel conflict of interest violations to the applicable contracting officer or contracting officer’s representative as soon they are identified.

Maintain effective oversight to verify compliance with personal conflict of interest safeguards, and have procedures in place to screen for potential conflicts of interest for all employees in a position to make or materially influence findings, recommendations, and decisions regarding DOD contracts and other advisory and assistance functions. This screening can be done on a task-by-task basis or on an annual basis, such as a financial disclosure statement.

Agency Comments

We provided a draft of this report to DOD and OGE for comment. The DPAP director wrote that DOD partially concurred with the recommendations. Specifically, he wrote that he agrees with their intent and that each of our recommendations will be carefully reviewed by the Panel on Contracting Integrity’s subcommittee, Contractor Employee Conflicts of Interest. According to the DPAP director, this subcommittee was established in order to respond to the concerns and recommendations voiced in the exit conference for our work. DOD’s comments are reproduced in appendix II.

In providing comments, OGE’s Director commended the draft report for breaking important new ground by providing data regarding the ethical implications of contractors in the federal workplace. OGE offered a few comments on our recommendations that should help DOD as it begins its efforts to address how best to implement them. Also, OGE offered its expertise to assist DOD in developing its policy in response to our recommendations regarding the scope of personal conflicts of interest and other ethics requirements that would be appropriate for contractor employees in comparison to federal employees. OGE’s comments are reproduced in appendix III.

We are sending copies of this report to the Secretary of Defense, the Director of the Office of Management and Budget, the Director of the OGE, and other interested parties. We will make this report available to the public on the GAO Web site at http://www.gao.gov.

If you have any questions about this report or need additional information, please contact me at (202) 512-4841 or chaplainc@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report were Carolyn Kirby, Assistant Director; Russ Reiter; Martene Bryan; Lily Chin; John Krump; Meredith Moore; Lillian Slodkowski; and Suzanne Sterling.

Appendix I: Scope and Methodology

Our overall objective was to review existing safeguards to prevent contractor employees from having personal conflicts of interest that could affect the integrity of their service while performing tasks to their employer under contract with DOD. Because DOD does not maintain departmentwide data on the numbers of contractor employees working side-by-side with federal employees, a specific objective was to (1) assess the roles being played by certain contractor employees by identifying how many of them were working at DOD offices included in this review as well as what responsibilities they were undertaking. Other specific objectives were to assess (2) what safeguards there are to prevent conflict of interests for contractor employees and (3) whether government and contractor officials believe additional safeguards are necessary.

We reviewed federal statutes and government ethics and federal acquisition regulations concerning personal conflicts of interest to assess their scope and applicability, focusing our analysis on conflict of interest laws and regulations that safeguard or promote the integrity of the government’s decisions, approvals, disapprovals, and recommendations. In addition, we reviewed information on personal conflict of interest requirements for federal employees versus contractor employees and interviewed officials from the Office of Government Ethics (OGE); several offices that administer the defense ethics program including the Standards of Conduct Office in DOD’s General Counsel (Office of the Secretary of Defense) and the Army, Navy, and Air Force general counsels for ethics.

To determine what conflict of interest safeguards for contractor employees that DOD has of its own for contractor employees, we reviewed DOD offices who used contractor employees to perform the type of tasks closely associated with inherently governmental functions and that influence government decision making. To obtain an understanding on the scope of DOD-wide safeguards, we reviewed the Defense Federal Acquisition Regulation Supplement (DFARS) to identify relevant contracting policies or contract clauses restricting contractor employees participation in DOD matters regarding personal conflicts of interest. To gain an understanding of the extent to which DOD offices use any DFARS policies or have augmented DFARS to establish local conflict of interest safeguards for contractor employees supporting their mission and operations, we visited and/or obtained information from 21 DOD offices in the Air Force, Army, Navy, Missile Defense Agency, and Tricare Management Activity. We judgmentally selected these DOD organizations and offices for review because they were cited by various DOD officials as having large contractor workforces and representing a cross-section of DOD organizations growing trend of reliance on support contractors. Table 6 lists the specific DOD offices selected for our review.

Terminal High-Altitude Area Defense Program Office

Contracting Center of Excellence

Agency Operations Office

Aegis Ballistic Missile Defense Program

Deterrence and Strike Division (A5MF)

Surveillance, Reconnaissance and Spacelift Division (A5F)

Joint Medical Information Systems Office

Aeronautical Systems Center (303rd Air Wing)

Aeronautical Systems Center (516th Air Wing)

Within these DOD organizations and 21 offices, we obtained information from and interviewed contracting officials, program managers, and other management officials. We also met with officials from DOD sponsoring organizations for federally funded research and development centers (FFRDC) within the office of the Undersecretary of Defense (Acquisition, Technology, and Logistics), Army, Air Force, and Navy. To obtain similar information from each of the 21 DOD offices, we interviewed these officials to obtain their views and supporting documentation using a structured set of questions covering several topics including (1) the types of services being provided by contractor employees, (2) their concerns about the integrity of the information and advice being provided by the contractor employees with regard to personal conflicts of interest, and (3) what safeguards such as contract clauses the offices are using to ensure that the assistance and advice provided is not impaired due to contractor employees conflicts of interest. (See table 7, which summarizes the structured topics discussed with the DOD offices selected for this review.)

In that regard we also obtained and reviewed available contract clauses or other documented safeguards to prevent, identify, and mitigate contractor employees’ personal conflicts problems. We also interviewed defense procurement and acquisition policy and general counsel and contractor oversight officials from the Office of the Undersecretary of Defense (Acquisitions, Technology, and Logistics), Army, Navy, Air Force, and Missile Defense Agency, DOD Procurement Fraud Working Group, Defense Contract Management Agency, and Defense Contract Audit Agency to obtain information and views on their oversight and monitoring of defense contractor ethics programs and contractor employees conflict of interest issues.

To identify safeguards that DOD contractors have implemented for their employees to avoid conflicts of interest, we met with and obtained documentation on ethics programs from 23 defense contractors and four FFRDC administrator organizations. We judgmentally selected these contractors and FFRDCs for review because they were cited by program managers in the 21 DOD offices we reviewed as having contractor employees who are performing contracted services for them. According to fiscal year 2006 contract award data, DOD obligated $8.0 billion for professional, administrative, and management support services contracts with the 23 contractors, which accounted for 25 percent of total dollars obligated that year for this category of services contracts. The contractors and FFRDCs we selected for review are listed in table 8.

We reviewed examples of the contractors’ statements of work or other documentation to identify the types of advice and assistance services being provided by their employees to the 21 DOD offices reviewed. To obtain similar information for each of the contractors and FFRDCs, we interviewed their officials to obtain their views and supporting documentation using a structured set of questions covering several topics including (1) DOD’s reliance on contractor employees in terms of their numbers and responsibilities, (2) steps the contractors take to identify and mitigate their employees’ conflicts of interest, and (3) views or concerns about the need for additional safeguards to ensure that the assistance and advice provided is not impaired by contractor employees conflicts of interest. (See table 9, which summarizes the structured topics discussed with the contractors and FFRDCs selected for this review.) We also discussed and obtained documentation from the FFRDC administrators on changes in their ethics policies and procedures to address safeguards for employee conflict of interest problems in response to DOD’s January 2007 revised policy for FFRDCs.

To determine if government and contractor officials believe additional safeguards are necessary for contractor employees, we used the results of the above discussions with officials from DOD organizations, including program managers and ethics and contracting officials. In addition, we used the results from the above discussions with officials at the 23 defense contractors and four FFRDCs included in our review. We also reviewed the report of the Acquisition Advisory Panel and met with OGE and OFPP officials to obtain information on actions being considered in response to Panel recommendations related to personal conflict of interest safeguards for contractor employees. We also met with representatives of industry and other groups, including the Defense Industry Initiative on Business Ethics and Conduct, Professional Service Council, Ethics Resource Center, and members of the American Bar Association’s Public Contract Law Section on Professional Responsibility and Contracting Ethics.

Appendix II: Comments from the Department of Defense

Appendix III: Comments from the Office of Government Ethics

Appendix IV: Contractor Employees Are Key in DOD Offices GAO Reviewed

For the purposes of understanding how key defense contractor employees are used to perform mission-critical tasks that could influence DOD decisions similar to functions carried out by federal employees, we obtained information from 21 offices across the five DOD organizations we reviewed. We also reviewed examples of contracting documents including statements of work and task orders.

The contract documents described a range of services that closely support inherently governmental functions, such as developing briefings, preparing contracts, proposing award fee amounts for contractors, conducting systems engineering studies, analyzing technical issues, and providing financial management support. Most of the documents we reviewed described services requiring contractor employees to provide program management oversight duties and entailed providing these contractors with classified, business proprietary, and otherwise nonpublic information to perform duties closely associated with inherently governmental functions. Table 10 lists a range of professional and management services and support that contractor employees provided to different DOD organizations we reviewed.

Appendix V: Contract Clauses Used by DOD Organizations to Address Contractor Employees Personal Conflicts of Interest

Under Air Force Electronic Systems Center and Army Communications Electronics Lifecycle Management Command policies affecting 4 of the 21 DOD offices we reviewed, we identified two examples of local contract clauses establishing conflict-of-interest safeguards for contractor employees performing advisory and assistance services tasks and other support services. To illustrate the scope and breadth of these local contract clauses for addressing contractor employees’ personal conflicts of interest, the clauses are reproduced in their entirety.

Air Force Electronic Systems Center

With its annual budget of about $3 billion, the mission of the Electronic Systems Center is to develop, acquire, modernize, and integrate command and control, intelligence, surveillance and reconnaissance capabilities, as well as combat support information technology systems. According to the center, advisory and assistance services contractor employees comprise a substantial portion of its workforce helping to execute this mission. And, according to the center’s law division, although these contractor employees cannot perform inherently governmental functions, they do provide essential technical and business advice and expertise that may be highly influential in decision making by government employees.

Given the close relationship between Air Force decision-makers and federal employee advisors at the center—who are both required to identify and avoid financial conflicts—and contractor employees directly advising them in these roles, the clause (as shown in table 11), which has been used for advisory and assistance services contracts for at least 10 years, provides a mechanism to address potential and actual contractor financial conflicts that could affect the integrity of the procurement system. According to the center, the clause places an obligation on the part of the contractor to monitor for personal financial conflicts of interest and maintain its own disclosure records. The center does not routinely monitor or review these records, but relies on a self-certification model, consistent with its treatment of similar requirements in such contracts.

Army Communications Electronics Lifecycle Management Command

In August 2007, the chief of the command’s Acquisition Process Change Group distributed a policy applicable to all of the command’s contracting activities to establish personal conflict of interest safeguards to be addressed for contractor employees as part of current contracting procedures for identifying, evaluating, and resolving organizational conflicts of interest. The underlying principles behind the revised policy are preventing the existence of conflicting roles that might bias a contractor’s judgment and unfair competitive advantage. According to the command’s policy, conflicts of interest are more likely to occur in support services contracts involving: management support services; consultant or other professional services; contractor performance of or assistance in technical evaluations; preparing specifications or work statements; and systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production.

In the acquisition planning process for all support services, the contracting officer is required to use local clause HS6001, Organizational Conflict of Interest, in the solicitation and contract (see table 12). As a condition of award, the contractor is required to have its employees and subcontractors who will perform work on the task execute the Contractor- Employee Personal Financial Interest/Protection of Sensitive Information Agreement, to maintain copies of those agreements, and provide them to the contracting officer upon request.