Contractors Working on a Government Site with Government Furnished Property

Reposted from an older blog.

Emphasis of late is on weeding out service contracts.  In TRADOC, requiring activities are filling out detailed worksheets for general officer or SES approval before a requirements packet may go forward to the contracting activity for action.  These worksheets, in part designed as questionnaires, proble for yes or no answers in reference to FAR prohibitions against unauthorized personal services contracts as well as the outsourcing of inherently governmental functions.

Just to make sure, it seems, that no contractor gets away with anything, one of TRADOC's worksheets zeros in on what FAR 7.5 defines as "functions generally not considered to be inherently governmental functions."  These are "certain services and actions that are not considered to be inherently governmental functions [but] may approach being in that category because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the Government administers contractor performance."  In TRADOC's language, they are functions that are "closely related to inherently governmental functions."

So, one of the worksheets asks, "Will the contractor work on a government site?"  And, "Will the contractor use equipment or property furnished by the government? A "yes" answer to either one of these requires an explanation that an SES or general officer would be comfortable signing off on.  Otherwise, no contract.  What to do?

Part of the answer is right in the FAR.  FAR 45 deals with issues pertaining to contractor use of government property.  In general, "contractors are ordinarily required to furnish all property necessary to perform government contracts."  But if it can be shown to "be in the government's best interest," or that "providing the property does not substantially increase the government’s assumption of risk," or that "government requirements cannot otherwise be met," then justifying contractor use of government equipment is easy.

As to justifying those instances when a contractor is working on a government site, consider physical and operationsl security (OPSEC).  Compliance with AR 25-2 as well as with higher headquarters guidance concerning Information Assurance and working with Lessons Learned are paramount concerns.  Army G-3 directives, for example, concerning Lessons Learned from the OIF or OEF theaters stipulate that these be classified CONFIDENTIAL unless a higher level of classification is warranted.

In light of this, pulling appropriately cleared contractors onto the installation and placing them on the network behind government firewalls (i.e., within the "army.mil" or "army.smil.mil" domains), will ensure activity compliance with the aforementioned guidance, will most likely be the most cost effective solution, and therefore should be deemed to be in the best interest of the government.