Government-contractor interactions

GOODFELLOW AIR FORCE BASE, Texas-- -- Throughout the last several decades, Defense Department has become increasingly dependent upon contractors to provide support, assistance, infrastructure and innovation toward the mission of national defense. The infusion of contractors into the day-to-day realm of modern military operations has become so common place, the DoD considers them part of the total force. As such, military members and government civilians must be constantly aware of their respective work-place dynamics and ensure that all interactions with government contractors are consistent with federal guidance and policies. Although this subject composes a very broad spectrum of consideration, I thought it may be helpful to provide a reminder that focuses on a few key areas of concern regarding appropriate interactions with government contractors.

The first area of concern is sensitive information protection. Although we are typically well-versed in classified information protection, sensitive information regarding contracts or contractors is often overlooked. This type of information includes items such as planning, programming, budgeting and execution information, contractor proprietary information, unsolicited proposal information, internal agency communications, government negotiation objectives and any information deemed as source-selection sensitive. Transfer of sensitive information should be kept internal to the government and must be shared with contractors only if necessary and after being properly sanitized or redacted.

Disregard for how this type of material is disseminated can be damaging to the government, give a contractor an unfair competitive advantage over another and may further lead to contract protests and litigation. If found guilty of violations of the Procurement Integrity Act [41 USCA 2101-2107] or Trade Secrets Act [18 USC 1905], government members can be subjected to criminal prosecution. If you work alongside of government contractors, always ensure that sensitive information in work centers is closely controlled. In addition, when facilitating meetings or discussions (to include phone and email conversations), be sure to identify any contractors in attendance and tailor the discussion so as to avoid unauthorized disclosure.

Another common area of concern is the subject of gifts and recognition. To prevent government conflicts of interests, 5 CFR Part 2635, Subpart B expressly forbids government employees from directly or indirectly, soliciting or accepting gifts from a prohibited source (in this case, contractors). Gifts can include things such as services, entertainment, hospitality, gratuities, favors, training, travel, transportation, lodging and meals. Although there are a few exceptions to this policy such as the "$20/$50 de minimus" Rule, the best policy is to refrain from accepting gifts from any contractor. Remember, the mere appearance of inappropriate behavior is the same as the behavior itself; perception can be reality. Likewise, contracted employees cannot be given gifts, incentives or individual recognition for outstanding performance. Any awards/recognition for good performance must be tied to the contract, approved by the government program manager and Contracting Officer, and sent to the contractor, not the contractor employee.

Perhaps the most common type of inappropriate government interaction with contractors is in the area of unauthorized commitments. Only warranted Contracting Officers acting within their delegated authority can direct contractor performance, make changes to a contract and bind the government. Be extremely careful when discussing contract terms, conditions, performance and scope with a contractor. Even if a contractor mistakenly perceives direction to perform work or change a contract after a casual discussion with a government employee, the resultant work could lead to an authorized commitment. In this case, the government party could be held liable; punishment resulting from a violation of the Anti-Deficiency Act may include fines and/or confinement. The best policy is to ensure that all contract discussions are coordinated with the supporting Contracting Officer before interacting with the contractor.

Again, these are just a few examples of government-contractor interactions that could become problematic. Whether you occasionally or routinely work around government contractors, keep in mind they are not government employees and different rules apply. With regard to contractor interaction, it is always advisable to seek counsel from your supporting Judge Advocate or Contracting Office if you encounter situations where there is any question as to what is authorized and appropriate.