[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR37.104]



[Page 757-758]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 37_SERVICE CONTRACTING--Table of Contents

 

                 Subpart 37.1_Service Contracts_General

 

Sec. 37.104  Personal services contracts.



    (a) A personal services contract is characterized by the employer-

employee relationship it creates between the Government and the 

contractor's personnel. The Government is normally required to obtain 

its employees by direct hire under competitive appointment or other 

procedures required by the civil service laws. Obtaining personal 

services by contract, rather than by direct hire, circumvents those laws 

unless Congress has specifically authorized acquisition of the services 

by contract.

    (b) Agencies shall not award personal services contracts unless 

specifically authorized by statute (e.g., 5 U.S.C. 3109) to do so.

    (c)(1) An employer-employee relationship under a service contract 

occurs when, as a result of (i) the contract's terms or (ii) the manner 

of its administration during performance, contractor personnel are 

subject to the relatively continuous supervision and control of a 

Government officer or employee. However, giving an order for a specific 

article or service, with the right to reject the finished product or 

result, is not the type of supervision or control that converts an 

individual who is an independent contractor (such as a contractor 

employee) into a Government employee.

    (2) Each contract arrangement must be judged in the light of its own 

facts and circumstances, the key question always being: Will the 

Government exercise relatively continuous supervision and control over 

the contractor personnel performing the contract? The sporadic, 

unauthorized supervision of only one of a large number of contractor 

employees might reasonably be considered not relevant, while relatively 

continuous Government supervision of a substantial number of contractor 

employees would have to be taken strongly into account (see (d) below).



[[Page 758]]



    (d) The following descriptive elements should be used as a guide in 

assessing whether or not a proposed contract is personal in nature:

    (1) Performance on site.

    (2) Principal tools and equipment furnished by the Government.

    (3) Services are applied directly to the integral effort of agencies 

or an organizational subpart in furtherance of assigned function or 

mission.

    (4) Comparable services, meeting comparable needs, are performed in 

the same or similar agencies using civil service personnel.

    (5) The need for the type of service provided can reasonably be 

expected to last beyond one year.

    (6) The inherent nature of the service, or the manner in which it is 

provided reasonably requires directly or indirectly, Government 

direction or supervision of contractor employees in order to--

    (i) Adequately protect the Government's interest;

    (ii) Retain control of the function involved; or

    (iii) Retain full personal responsibility for the function supported 

in a duly authorized Federal officer or employee.

    (e) When specific statutory authority for a personal service 

contract is cited, obtain the review and opinion of legal counsel.

    (f) Personal services contracts for the services of individual 

experts or consultants are limited by the Classification Act. In 

addition, the Office of Personnel Management has established 

requirements which apply in acquiring the personal services of experts 

or consultants in this manner (e.g., benefits, taxes, conflicts of 

interest). Therefore, the contracting officer shall effect necessary 

coordination with the cognizant civilian personnel office.



[48 FR 42365, Sept. 19, 2001, as amended at 66 FR 2133, Jan. 10, 2001]