DEPARTMENT OF THE ARMY
17 August 1999
WASHINGTON, D.C. 20310
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Contractors in the Government Workplace
This memorandum is to remind HQDA Principals and Army Commanders of their responsibilities relating to contractors in the workplace.
As Government functions are increasingly outsourced, making us more reliant on contractors, we must understand the advantages and limitations of using contractors, as well as the responsibilities associated with their use. Historically, contractors have successfully supported the U.S. Government during both war and peace, but who they really are and how they fit into an organization's operation is not always fully understood.
When properly used, contractors can assist Government managers in achieving their missions or enhancing their services. Contractors are managed through contracting channels based on the terms and conditions of the contract and the contracting officer's technical representative (COTR). The COTR assists in technically monitoring and administering the contract. Contractors are required to perform all tasks identified in the Statement of Work (SOW). However, contractors may not perform ""inherently governmental functions." As a matter of policy, an "inherently governmental function" is one so intimately related to the public interest as to mandate performance by Government employees.
However, contractors may gather information or provide advice, opinions, recommendations, or ideas in these areas. They may develop draft policy and assist in planning and preparing budgets. In the contracting process, they may technically evaluate contract proposals, assist in developing SOWs, and serve as technical advisors to source selection boards. They may also participate as voting or nonvoting members of source evaluation boards. What they may not do is render a final decision. Nor will they supervise Government employees, make mission decisions, or represent the organization at policy decision group levels, particularly in financial matters.
To avoid any perception that a contractor is performing functions that are inherently governmental, Government managers should familiarize themselves with the Federal Acquisition Regulation and the relationship between Government personnel and contractors supporting their organization. Government and contractor personnel should also ensure that the work is related to a recognizable portion of the SOW.
When drafting service contracts, Government agencies will include a requirement that contractor personnel must identify themselves as contractors when attending meetings, answering Government telephones, or working in situations where their actions could be construed as official Government acts. The Government manager or COTR must ensure that the contracted employee displays his or her name and the name of the company while in the work area, wears and displays a building pass at all times, and includes the company's name in his or her email display. When a Government manager wishes to send a contractor to any type of meeting where classified or sensitive unclassified material may be presented, the COTR must provide-in writing or email-verification of the contractors' security clearance and/or need to know. Ultimately, the Government host who holds the classified or sensitive information is responsible for obtaining this information and ensuring that those who will receive the information have the appropriate security clearance and need to know before they admitted the contractor.
As stated previously, contractors do not supervise Government employees, nor do Government managers have direct control over contractor employees. However, the greater the degree of reliance on contractors, the greater the need for Government oversight. Therefore, HQDA Principals and Army Commanders must ensure that there are a sufficient number of experienced and trained government personnel available to exercise effective oversight of their programs that use contractor personnel. Ultimately, department heads and agencies are responsible for approving contracted work.
Finally, the Army policy is that sexual harassment and other forms of discrimination are unacceptable conduct in the Army workplace whether committed by or against its Government or contractors' employees. Violations of this policy could result in joint liability for both the Army and the contractor(s). HQDA Principals and Army Commanders are responsible for enforcing the Army policy.
Please ensure that this information receives wide dissemination.
John M. Pickler
Lieutenant General, USA
Director of the Army Staff
Joel B. Hudson
to the Secretary of the Army