Contractor Transition

It strikes me that -- yes -- the employees are currently employees of the incumbent contractor and any information regarding its employees should have come from the contractor. So, yeah. Bad on you, I guess.

But was there really any harm done? I'm struggling to see what harm might have been done.

Thank you for the response. This was my first real solicitation (Option years, etc.). Having a blast. FWIW, I told the COR to not answer that question if it came up in the kick-off meeting, which it did. I told them I would follow-up on it. The component, at some point, followed up while I sought guidance. 

The incumbent is angry. They failed to perform several times during the last quarter with employees not showing up. The invoice was rejected and equitable adjustment was offered. That’s when the incumbent brought up the transfer of information. The issues were not related, but conflated. I was just curious as to, at a minimum, best practice, if nothing is spelled out in black and white. And if it is in black and white, what that is? I have been searching.

Loving the forum and my new job! Again, thank you for taking the time to reply.

I don't know what else to tell you. Maybe somebody else does. If the contractor can't point to any real harm done, then it's a non-issue I guess. (Let me be clear I'm not a gov't. employee.) If they can point to some harm done, I suppose they can file an REA for compensation.

NewbieAF said:

Just curious if anyone has come across this, and if there is a regulation/protocol/best practice that you are aware of?

See 52.222-41 if in the contract.

Thanks, C Culham. Once again, I really appreciate the dialogue. 52.222-41 is not in the contract, but I was looking at this earlier. It is not a collectively bargained position, but there was a wage determination (SCA). I will review, more closely, the additional aspects of it. 

Very much appreciated and grateful.

NewbieAF said:

52.222-41 is not in the contract . . . but there was a wage determination (SCA).

NewbieAF,

If the contract includes an SCA wage determination, then why doesn't the contract include the clause at FAR 52.222-41?

ji20874 said:

NewbieAF,

If the contract includes an SCA wage determination, then why doesn't the contract include the clause at FAR 52.222-41?

NewbieAF, I suggest that you review FAR 22.1006 Solicitation provisions and contract clauses. Then, review the solicitation and contract to see which applicable provisions and clauses were included.

Then go speak to your KO and whoever wrote the solicitation and the contract to determine why any applicable provisions and//or clauses were omitted. If any clauses were omitted but required, the KO and legal should advise how to remedy the situation.

NewbieAF said:

Thanks, C Culham. Once again, I really appreciate the dialogue. 52.222-41 is not in the contract, but I was looking at this earlier. It is not a collectively bargained position, but there was a wage determination (SCA). I will review, more closely, the additional aspects of it. 

Very much appreciated and grateful.

Some how a post I did got lost in transit.   With regard to the clause see the part about Seniority at paragraph (n).

Also give this a read -

On 9/28/2022 at 7:52 PM, NewbieAF said:

At the end of OY4 one contractor was being replaced by another. The new contractor said it is always their preference to retain staff that the component is happy with and have demonstrated good performance. This contract would not be affected by any EO.

I don’t believe the responses so far fully address Newbie’s question, at least from the new contractor perspective.  I think the new contractor wants recommendations on which incumbent employees they should offer jobs.  This really is a quite common occurrence and new contractors always are cautious about which government personnel they bring up the question with.  Government PMs usually know which incumbent employees work well and those that don’t.  Sometimes the PM approaches the contractor and sometimes the reverse happens.

Of course much of this really isn’t applicable in light of Biden’s executive order of late last year for many contracts.

formerfed said:

I think the new contractor wants recommendations on which incumbent employees they should offer jobs.  This really is a quite common occurrence and new contractors always are cautious about which government personnel they bring up the question with.  Government PMs usually know which incumbent employees work well and those that don’t.  Sometimes the PM approaches the contractor and sometimes the reverse happens.

I agree with formerfed, but I say: Be careful, COs, PMs, and CORs.

NewbieAF said:

I was just curious as to, at a minimum, best practice, if nothing is spelled out in black and white. And if it is in black and white, what that is? I

Would you release the names of the employees in response to a FOIA request?  If not why would you release the names if it is not required by a contract?  Also, could the names of the employees be confidential information of the incumbent so that they are protected by 18 U.S.C. 1905?

Thanks for the responses. Their information was not released without their permission. They knew the contract was ending. The component asked if they would be interested in staying on with the new contractor. I would have liked for them to be given the new contractors information and let the employees reach out to them. I think that once the component knew they would like to stay, they provided the new contractor with their information. With their permission. 

I am really interested in what formerfed was discussing, and it kind of relates to this as well. The new contractor was looking for information from the component more along the lines of a recommendation of current employees. If all of them would like to stay on, and all of them contact the new contractor, the new contractor is still likely to ask somebody with knowledge of their performance for their thoughts.

NewbieAF said:

Their information was not released without their permission.

This does not address the question of whether the incumbent contractor had a proprietary interest in the names of its employees.

Correct, which is why I said I would have liked to see the component give the employees the information for the contractor. It was public knowledge at that point. If they wish to reach out to the new contractor, that is on them. I see the problems with the component getting involved. I pointed that out at the beginning. I’m trying to be better prepared for next time.

I am also still interested in transition in general. Say it is one employee. The component loves him. The employee wants to stay. Is not interested in other opportunities with the incumbent. The new contractor wants to hire him. Nobody wants a disruption of service. Who contacts who first? What can and can’t be done. How did the new contractor find out the component loves the person in place? 🙂 I don’t know. I don’t want to stray too far. I’ve gotten a lot of great feedback to this point.

Strange thread. NewbieAF has asked only one question. It is a compound question:

On 9/28/2022 at 4:52 PM, NewbieAF said:

Just curious if anyone has come across this, and if there is a regulation/protocol/best practice that you are aware of?

That calls for nothing more than two yes or no responses.

We are not teaching NewbieAF well.

We are not teaching NewbieAF to craft effective inquiries, which is an essential skill in contracting.

We are failing NewbieAF.

NewbieAF, that practice is common.  The new contractor wants to hire incumbent employees that the government agency is pleased with.  Often the incumbent employees makes contact with the new contractor about job opportunities once they find out who won the award.  Sometimes the new contractor reaches out to the incumbent staff first based upon knowledge they gathered.

As far as protocol, the government can’t be construed as making hiring decisions.  The government should limit what they say to standard performance reference checks information.  That also could be in response to a question similar to “which of the current staff would you recommend?”

Edit:  a contracting officer should stay far, far away from any of this.

I'm going to assume that NewbieAF's inquiry concerns a contract for annual support services that is exempt from the Service Contract Act.

I'm going to speculate that NewbieAF wants answers to the following four questions:

1. May the government to give a list of the current contractor's employees' names and contact information to the new contractor.
2. Must the government ask the current contractor for permission to give such a list to the new new contractor.
3. May the government provide the successor contractor with evaluations of the current contractor's employees.
4. May the government ask or encourage the successor contractor to hire particular persons among the current contractor's employees.

Offhand, I do not know of any statutes or regulations that answer those four questions. There may be some, but, if so, I don't know them. I don't know if employee names and contact info constitute "trade secrets and commercial or financial information obtained from a person that is privileged or confidential" (FOIA Exemption 4) or "personnel, medical, financial, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" (FOIA Exemption 6). I doubt that most agency attorneys would know offhand.

In short, I don't know the answers to "may" and "must." But here are my responses:

If I were the contracting officer I would not provide employee names, contact info, or evaluations to the new contractor. I would not ask the current contractor for permission to do so. And I would not make hiring recommendations or requests in my official capacity. Furthermore, I would instruct PMs and CORs in writing not to do so in any official capacity. Why? Two main reasons.

First, hiring is a contractor's responsibility and risk, and the government should not be involved except as expressly provided in regulations and in the contract. Hiring involves too many issues—nondiscrimination, equal employment opportunity, affirmative action, etc.—that could be a source of trouble.

Second, I don't want to give a contractor any excuse for poor performance.

What PMs and CORs do in their personal and unofficial capacity is their own business and risk.

In my experience, new contractors found ways to get the word out to the current contractor's employees that they were in a hiring mode, and current contractor employs learned who won the new contract and applied for jobs if they wanted to be hired, all without my help.

As formerfed said, NewbieAF's inquiry involves old issues and practices. The answers I have given are expressions only of my opinions. I have not grounded them on any law, regulation, or policy.

Vern, as usual you have reframed the content of this website into a learning experience.  Thank you for your tireless work.

@NewbieAF

Vern Edwards said:

Hiring involves too many issues—nondiscrimination, equal employment opportunity, affirmative action, etc.—that could be a source of trouble.

See this quote from Vern - each of these phrases he cites have their own clause prescribed in FAR Part 22 that likely applies to your contract.  Beyond these normal business problems, think also about government-unique insider threats.  I bet you work for DOD, and I bet you don’t know the struggles and character traits of each of the contractor employees.  What if the rehiring of one of them produces an information security breach (think Snowden), or worse yet an active shooter situation on base someday over the next 5 years?  All because they weren’t made to squirm in an interview with that new contractor boss pre-hire.  Blood on your hands.

On 10/1/2022 at 9:31 AM, Vern Edwards said:

I don't know if employee names and contact info constitute "trade secrets and commercial or financial information obtained from a person that is privileged or confidential" (FOIA Exemption 4)

I am not aware of any court decisions that address this specific issue.  However, at one time, I was the FOIA officer for an agency.  It was my practice not to release the names or other information concerning contractor service employees whose identity was not already a matter of public knowledge.  My reasoning was that a service contractor's most valuable assets are its employees.  Releasing employee names and other info could result in them being pirated from the contractor.  This could cause competitive harm to the contractor.  Also, because the employees could be lured away from the contractor by the promise of a higher salary, this could result in higher prices being paid by the government.  As a side note, the courts have held that FOIA exemption 4 is co-extensive with 18 U.S.C. 1905.

Quote

It was mypractice not to release the names or other information concerning contractor service employees whose identity was not already a matter of public knowledge.  My reasoning was that a service contractor's most valuable assets are its employees.  Releasing employee names and other info could result in them being pirated from the contractor.  This could cause competitive harm to the contractor.  Also, because the employees could be lured away from the contractor by the promise of a higher salary, this could result in higher prices being paid by the government.

Biden’s Executive Order from last November for actions covered by the Service Contract Act has a different spin.  This covers follow-on contracts for the same or similar work.  This is part of the required clause:

Quote

“(c)  The contractor shall, not less than 10 business days before the earlier of the completion of this contract or of its work on this contract, furnish the Contracting Officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance.  The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors.  The Contracting Officer shall provide the list to the successor contractor, and the list shall be provided on request to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law.

I premised my post on the supposition that the contract was for professional services not covered by the SCA. NewbieAF provided conflicting information about whether the contract was covered by the SCA. I presume that if it is covered, then the government must provide info about the incumbent's employees to the successor contractor.

On 9/28/2022 at 6:52 PM, NewbieAF said:

This contract would not be affected by any EO.

“Section 2 of Executive Order 14055 defines “service contract” or “contract” to mean any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the Service Contract Act of 1965, as amended, (SCA) and its implementing regulations. 86 FR 66397. Section 2 also defines “employee” to mean a service employee as defined in the SCA, 41 U.S.C. 6701(3). See 86 FR 66397. Finally, section 2 defines “agency” to mean an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act (Procurement Act), 40 U.S.C. 101 et seq. See 86 FR 66397 (citing 40 U.S.C. 102(4)(A)).

41 U.S.C 6701(3):

Ҥ 6701. Definitions
In this chapter:

…(3) SERVICE EMPLOYEE.—The term ‘‘service employee’’—
(A) means an individual engaged in the
performance of a contract made by the Federal Government and not exempted under section 6702(b) of this title, whether negotiated or advertised, the principal purpose of which is to furnish services in the United States;
(B) includes an individual without regard to any contractual relationship alleged to exist between the individual and a contractor or subcontractor; but
(C) does not include an individual employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in part 541 of title 29, Code of Federal Regulations

On 9/29/2022 at 4:38 PM, NewbieAF said:

52.222-41 is not in the contract, but I was looking at this earlier. It is not a collectively bargained position, but there was a wage determination (SCA).

Regardless of whether or not the Service Contract Act applies to these contract employees, it is apparent that this Executive Order doesn’t apply here:

“Sec. 11 . Effective Date. This order shall become effective immediately and shall apply to solicitations issued on or after the effective date of the final regulations issued by the FAR Council under section 7 of this order. For solicitations issued between the date of this order and the date of the action taken by the FAR Council under section 7 of this order, or solicitations that have already been issued and are outstanding as of the date of this order, agencies are strongly encouraged, to the extent permitted by law, to include in the relevant solicitation the contract clause described in section 3 of this order.”

On 10/1/2022 at 9:45 AM, Voyager said:

@NewbieAF

 I bet you work for DOD, and I bet you don’t know the struggles and character traits of each of the contractor employees.  What if the rehiring of one of them produces an information security breach (think Snowden), or worse yet an active shooter situation on base someday over the next 5 years?  All because they weren’t made to squirm in an interview with that new contractor boss pre-hire.  Blood on your hands.

You’re addressing this question to Newbie.  I’m pretty sure Newbie or most any CO can respond to this.  That’s a question for program people.

Also I can’t imagine a contractor hiring employees without conducting interviews.  Contractors generally seek employees that will fit within their performance philosophy.  Interviews are a needed part of the assessment.  I’m speculating here but successor contractors that replace incumbents usually offer something more than the incumbent.  Agencies are looking for something other than rehashing the past.  Contractors look for the best way to deliver what they promised. 

Just blanket hiring of incumbent employees without interviewing is far fetched.  Companies seek information from government CORs and PMs on which employees they recommend but that’s about it.  In addition just about any contractor job involving security or sensitive work require background checks and/clearances.  The “think Snowden” and “blood on your hands” isn’t warranted.

Oops  duplicate post.

Oops triplicate post. Was sitting on  my cell phone. Sheesh.

Bob, please delete this and my previous duplicate post. Sorry.

This is wandering pretty far afield.

Vern Edwards said:

This is wandering pretty far afield.

And I’m partially to blame 👍🏻

formerfed said:

Biden’s Executive Order from last November for actions covered by the Service Contract Act has a different spin.

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

formerfed said:

consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law.

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

Retreadfed said:

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

Regardless, as I previously said,  the Biden Executive Order doesn’t affect the current transition. The existing contract is five years old (at the end of the 4th Option Year “OY4”).  That is long before Biden was even the President, let alone before the issuance date of the E.O. or its effective date. There’s no sense in going down a rabbit hole.

It may be several years before many contracts containing the new clause transition between contractors.

Retreadfed said:

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

This is getting way off course from Newbie’s question.  The issue is releasing incumbent employee names to the successor contractor - the award has already been made.  No one has ever mentioned release of this information prior to award and to competitors.

joel hoffman said:

It may be several years before many contracts containing the new clause transition between contractors.

Joel, you’re underestimating the desire to appease politically.  I was curious and did a search of solicitations.  Many have already added this language that I reviewed

Quote

For solicitations issued between the date of this order and the date of the action taken by the FAR Council under section 7 of this order, or solicitations that have already been issued and are outstanding as of the date of this order, agencies ar****e strongly encouraged, to the extent permitted by law, to include in the relevant solicitation the contract clause described in section 3 of this order.”

formerfed said:

Joel, you’re underestimating the desire to appease politically.  I was curious and did a search of solicitations.  Many have already added this language that I reviewed

formerfed, I meant that the current (predecessor) contracts don’t have the new  clause in them. The current contractor’s** responsibility and the government’s resulting handling of information upon completion** is described in paragraph (n) of the 2018 version of Clause at 52.222-41:

[**EDIT: note that the “current” FAR clause is dated August 2018. The predecessor contract that is the subject of this thread is about five years old. I don’t know what if any transition requirements would have applied to a solicitation or contract awarded in circa 2017.  Obama issued an EO in 2009. Trump rescinded it in 2020 with another EO. Biden has now rescinded that one but didn’t reinstate Obama’s EO.]

“(n) Seniority List. Not less than 10 days prior to completion of any contract being performed at a Federal facility where service employees may be retained in the performance of the succeeding contract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a Contractor (predecessor) or  successor (29 CFR 4.173), the incumbent Prime Contractor shall furnish the Contracting Officer a certified list of the names, of all  service employees on the Contractor's or subcontractor's payroll during the last month of contract performance. Such list shall also contain anniversary dates of employment on the contract either with the current or predecessor Contractors of each such  service employee. The Contracting Officer shall turn over such list to the  successorContractor at the commencement of the succeeding contract”  

[EDIT: As noted in my above edit note, I don’t know what if any transition requirements would have been applicable to the specific contract in this thread.]

Paragraph (c) of the new clause would apply to the contractor and government for transition of those contracts to a new contract.

“(c) The contractor shall, not less than 10 business days before the earlier of the completion of this contract or of its work on this contract, furnish the Contracting Officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance. The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors. The Contracting Officer shall provide the list to the successor contractor, and the list shall be provided on request to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law.”

I understand.   I was responding to the comment on how long the EO will take to go into effect.  It’s interesting that a few solicitations I saw have the clause in it.    

But DoL published details in the Federal Register including how it will be implemented and enforced.

https://www.federalregister.gov/documents/2022/07/15/2022-14967/nondisplacement-of-qualified-workers-under-service-contracts

Public comments are due by August 15 so I wonder if conflicts will arise between the clause language in the EO and what DOL ends up with?

joel hoffman said:

It may be several years before many contracts containing the new clause transition between contractors.

formerfed said:

I understand.   I was responding to the comment on how long the EO will take to go into effect.  It’s interesting that a few solicitations I saw have the clause in it.

I meant that It may be a few years for current or new contracts to transition to a successor contractor.

New contracts will eventually contain the additional requirements for the successor contractor. Yes, some current solicitations probably will be proactive and are including the proposed language.

But current contract holders likely will follow their current contract requirements for a “predecessor” during a future transition to a successor and the government should also follow whatever government requirements are in those contracts that will be handed off to a successor.

The contract that is the subject of this thread and the predecessor’s and government’s actions in its transition to a successor should be consistent with whatever policies and procedures were in effect prior to the 2018 clause at FAR  52.222-41. The successor will follow the procedures in its new contract.

I can see where a current contractor might complain when the successor’s needs and interests are inconsistent with  policies and procedures that are in the current contract.

That’s what happens when policies yo-yo back and forth with changes in the Presidency. It reminds me of the Project Labor Agreement policy yo-yo for construction contracts.