Policy for Use of Contract Workers to Support Scientific Functions in the IRP

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, Institute or Center (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:

• 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.
• 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.
• 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.
• CWs are not, by definition, in training and are not considered to be preparing for a Federal career at the NIH.
• 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).
• 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.

• CW Specialists (CWSs) usually possess a doctoral degree and have sophisticated skills, knowledge, and experience to perform specific functions.
• CW Associates (CWAs) have a doctoral degree and have generally completed some postdoctoral training that provided them with specific skills.
• CW Technicians (CWTs) may or may not have a doctoral degree and serve in a scientific, technical capacity not requiring advanced research training.

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 non-personal 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 non-personal 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 (Mandated Training for Scientific Staff Working in NIH Facilities). 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. Additional training is required for positions that provide supplemental patient care to ensure compliance with Joint Commission requirements. The CW should work with their CC or Institute points of contact to ensure current training requirements are obtained.