(Approved by Intramural Working Group on April 14, 2004)
Because of the need for increased flexibility in supporting
defined intramural research activities, including team science, and
since the agency does not presently have enough regular employees
that are qualified and available to perform the particular contract
tasks, ICs may be permitted to acquire the assistance of individual
staff via a contract/task order. This policy does not address
contract workers (CWs) who perform patient care responsibilities that
require making a final diagnosis (physicians, dentists, nurse
practitioners, physician assistants, veterinarians)*. CWs would be
participants in a project who would provide a specific set of skills
and would perform a specific set of functions, as enumerated in the
Task Order or Contract Statement of Work. Unlike NIH staff, CWs would
not be supervising anyone, would have no fiscal responsibilities,
would not initiate projects, and would not receive mentored training.
CWs are not subcontractors, but rather, employees of the
contractor.
These contracts/task orders would be for non-personal services, under
which the personnel rendering services would not be subject to the
supervision and control that usually prevail in relationships between
the Government and its employees. The CWs will work as part of a
team, will be asked for a specific end-product based on their
specific skills, and will be responsible for determining how to
achieve the goal by exercising independent judgment and analysis
while following the instructions in the Statement of Work of the
relevant contract/task order. The NIH will evaluate the quality of
the professional services provided (per the past performance
requirements of the contract/task order) but cannot exercise direct
supervisory control over the activities. The contract supervisors
will ensure that the CWs meet the Task Order requirements and are not
directed by NIH employees. The CWs will submit their product to the
contract supervisor rather than to NIH staff, and any instruction to
CWs by NIH staff, with respect to assignments, will be minimal. The
contractor has the sole discretion to hire/fire its CWs. The NIH will
have no involvement in the hiring/firing process. Commercial contract
vehicles are available, including some that other government agencies
have established, to provide workers capable of carrying out specific
functions, as required, under a task order, based on the conditions
listed below.
Contract workers will have unique professional designations to
distinguish them clearly from NIH employees, including Specialist
(CWS), Associate (CWA), and Technician (CWT). In order to properly
hire and utilize CWs, all of the following conditions must be
met:
1. CWs (including CWSs, CWAs, and CWTs) do not have supervisory, fiscal, managerial or oversight responsibilities. Contract supervisors located at the NIH, not government employees, will exercise supervision and control over CWs, even though the CWs work on site using government equipment. For those CWs with doctoral degrees, the contract supervisor must be someone with equivalent training who is capable of supervision.
2. CWs' duties are clearly limited to provision of specific,
defined service functions as set forth in the contract/task order
Statement of Work, and CWs shall not initiate research. The skills
required from a CW will be specifically enumerated in the
Contract/Task Order request and in the Statement of Work.
3. CWs hired on this type of contract cannot perform patient
care responsibilities that require making a final diagnosis
(physicians, dentists, nurse practitioners, physician assistants,
veterinarians)*. However, a variety of technical, social services or
nursing duties can be obtained via a contract/task order.
4. CWs are not, by definition, in training and are not
considered to be preparing for a Federal career at the NIH.
5. The CW contract program is intended to solve the current
temporary problem of not having enough FTE positions. Contracts/Task
Orders are short-term (1 year), and contain options to extend the
term of the contract/task order for up to 5 years (base year and 4
option years, depending on the terms of the contract vehicle).
6. If the contractor determines that hard-to-find specific
service functions are not readily available from U.S. citizens, it
may procure such services by hiring a foreign national, whose H-1b
visa will be obtained by the contractor.
Eligibility: Individuals are hired and supervised by
contractors based on the service function needs as contained in the
Statement of Work.
Prior training or employment at the NIH does not disqualify or
entitle individuals to be on a contract/task order. Employment by a
contractor of current NIH staff and trainees may only begin after the
normal expiration date of an NIH appointment or training assignment,
by mutual agreement of the NIH and the scientist. Since current Staff
Scientists and Research Assistants are on a long-term NIH career
pathway and are carrying out research, they may not be requested or
encouraged to leave government positions in order to occupy contract
positions.
Visas: If the contractor decides to hire a foreign national,
the visa becomes the responsibility of the contractor since the CW
will be an employee of the contractor. However, the NIH Division of
International Services (DIS) must be informed of all foreign national
CWs at the NIH for tracking purposes as mandated by the Dept. of
Homeland Security. It is the policy of the NIH not to grant
no-objection-statement (NOS) waivers of the 2-year home residency
requirement for any CWs working at the NIH, either on an individual
basis or through a contractor.
5-year/8-year Rule: The 5-year/8-year rule applies to all
postdoctoral trainees/fellows at the NIH. Since contractors are
neither trainees nor fellows, this policy does not apply.
Nevertheless, in keeping with the intramural policy to protect recent
postdoctoral scientists from long periods of service without defined
career tracks, Associates (CWAs) must be within 10 years of their
highest doctoral degree during their entire contract service.
Contracting Guidelines: As a rule, only regular Government
employees may provide "purely personal services" to the Government -
one indicia of a personal services contract is when
"[c]omparable services, meeting comparable needs, are
performed in the same or similar agencies using civil service
personnel" (FAR Clause 37.104(d)4). A nonpersonal services contract
is one "under which the personnel rendering the service are not
subject, either by the contract's terms or by the manner of its
administration, to the supervision and control usually prevailing in
relationships between the Government and its employees" (FAR Clause
37.101). The GAO has found that where an end product is requested and
the contract calls for the contractor to determine how best to
achieve the desired goal, there is minimal supervision, and thus, no
personal services contract exists (United States Advisory Commission
on Public Diplomacy, B-202159, 81-2 CPD 404). The contracts discussed
in this document must be nonpersonal services contracts, even though
the CWs would perform their duties onsite and using Government
equipment.
All contracts/task orders for specific tasks to be performed by
CWs must be processed through the appropriate NIH contracting office,
unless the contract is held by another government agency, in which
case an Interagency Agreement will first be established to permit the
sponsoring Government agency to write a task order against its
contract for CW services. The contractor has the right to hire and
fire employees, to grant or deny individual leave requests, and to
reassign employees. The contractor supervisor, not the NIH, is
responsible for providing performance feedback directly to the CW.
NIH may provide performance feedback to the contractor, but not to
the individual CW. ICs have the authority to contract for the service
functions of CWs. In addition, hiring under contract of current IRTA,
CRTA and VF training fellows, and Research Fellows, as Associates
(CWAs), Specialists (CWSs), or Technicians (CWTs) can occur only at
the end of their appointments, and only if eligibility requirements
have been met. These hiring decisions are made by the contractor, not
at the request of the NIH. Principal Investigators may have assigned
to them only one Staff Scientist or one Specialist (CWS) unless an
exception is granted by the DDIR.
NIH Required Courses: Contracts/task orders must state that
contract workers have the same requirements for completion of the
required NIH safety and research integrity coursework as NIH
scientific staff (Attachment 1). NIH
will support any expenses associated with NIH required courses while
the contract supervisor will be responsible for ensuring that the CW
has time allocated for fulfilling them. However, costs for any other
CW training will not be covered by the NIH.
Salary and Benefits: Salaries and benefits should be
benchmarked against positions in Title 5 and Title 42 within the NIH
intramural program.
Travel: CWs cannot be put on Government travel orders.
Intellectual Property: All contracts should include a patent
agreement (Attachment 2).
* Occasionally the Clinical Center or an Institute might require
supplemental patient care support from contract physicians, dentists,
nurses or other care providers who, working under the direction of a
federal physician or nurse and holding their own malpractice
insurance, can carry out the full range of clinical
responsibilities.