View/Open - Naval Postgraduate School

purposes continues to be the “legal” employer, and take its day-to-day supervision from its
normal crew boss. The second employer would specify the work to be accomplished and give
general directions. Typically, the second employer reimburses the first employer for the pay and
expenses of the “borrowed” employees. Other examples include some types of employment
agencies which provide temporary workers to manufacturing or retail establishments. The
agency pays the employee, but the receiving employer exercises functional control.
The basic concept of separating the legal and functional relationships between
employers and employees is not foreign to the Federal Government where “work with industry,”
the Inter-Governmental Personnel Act program, and similar programs have long existed. What
is being proposed is actually less extreme than any of the examples just mentioned.
The fact that functional control is vested in a commander in the theater does not mean
that the commander or his subordinates will be engaging in relatively close or continuous
supervision of contractor employees. The contractor’s own supervisory structure would still be
expected to provide day-to-day supervision to contractor employees. The type of functional
control exercised would be top-level direction and establishing work priorities that impact
mission accomplishment.
What is essentially being suggested is modifying the following theoretical chain of
direction where: (1) the “customer” in the theater communicates its needs and priorities (2) to a
non-resident contracting officer who validates them and then communicates them (3) to a
contractor point of contact who then passes them (4) to the contractor personnel who are in
theater. There are delays inherent in such a chain. Most likely (1) and (4) are in close contact,
and between them the most accurate communication takes place. In a functional chain of
direction, (1) would communicate directly to (4) on a real time basis. Information would be
supplied to (2) and (3) who could provide guidance if local direction varied from contract terms.
In instances where such was the case, (1) and (4) would be informed accordingly and the
variance would be corrected, the action ratified, and/or the contract modified to reflect local
conditions.
Based on research documented in this paper, what is suggested here does not actually
change what is taking place; it merely recognizes it as a fact and endorses it as a rational
approach to the control and management of contractors in deployment situations. It seems quite
possible to implement this suggestion with appropriate contract language and delegations of
authority. 90 Regulatory changes expressly recognizing the propriety of this type of relationship
might be necessary, however, to overcome the entrenched views and resistance likely to be
encountered from contracting officials.
This recommendation is not intended to create a personal service contract relationship
between the theater command and the contractor’s personnel within the meaning of FAR
37.104. Nothing more is intended than to make official the unofficial relationships that are
currently evident.
90 Broad authority to delegate procurement functions is found at 10 USC. 2311. Even if a deviation from
the FAR or DFARS is deemed necessary to effect this recommendation, that should not inhibit its
implementation (FAR 1.402).
=
=
==================^Åèìáëáíáçå=oÉëÉ~êÅÜW=ÅêÉ~íáåÖ=ëóåÉêÖó=Ñçê=áåÑçêãÉÇ=ÅÜ~åÖÉ=======- 460 -
=
=