Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contractors
Collin D. Swan
Office of Suspension and Debarment, The World Bank; George Washington University - Law School
January 6, 2012
George Washington Law Review, Vol. 80, No. 2, February-March 2012
GWU Legal Studies Research Paper No. 2012-3
GWU Law School Public Law Research Paper No. 2012-3
The last two decades have been marked by numerous political efforts to reduce the size of the federal workforce and declare the end of the “era of big government.” These efforts left the federal government strapped for personnel and resources and have forced many agencies to increasingly rely on service contractors in general, and personal services contractors in particular, to fulfill their mandates. According to the Federal Acquisition Regulations, a personal services contract is a contract that creates an employer-employee relationship between the contractor and the federal government. Despite a longstanding — and, arguably, outdated — regulatory prohibition on the use of personal services contracts, many agencies are increasingly employing personal services contractors in positions traditionally reserved for government employees. The result is an absurd situation in which government ethics laws apply differently to service contractors and federal employees who work alongside each other, perform similar discretionary tasks, and have the same potential to engage in corrupt practices.
This Note argues that the personal services prohibition represents an outdated and inefficient method of protecting the government’s interest and should be abolished. Given the government’s current reliance on service contractors, procurement officials should not be concerned with whether a contract creates an employment relationship with the government, but instead with whether contractor personnel are being properly managed and supervised. Congress should thus explicitly abolish the personal services prohibition and apply government ethics laws to personal services contractors. This would reduce the ability of personal services contractors, who often perform discretionary functions on the government’s behalf, to act in their own personal interest to the detriment of the government’s mission.
Number of Pages in PDF File: 36
Keywords: blended workforce, personal services contracts, ethics, conflicts of interest, civil service, federal workforce, government contracts, acquisition
JEL Classification: H57, J71, K12, K23, L33, L84
Date posted: January 10, 2012 ; Last revised: March 7, 2012