PURPOSE. The purpose of this circular is to establish Indian Health .Service (IHS) policy and procedures for acquisition of personal services by contract.
POLICY. It is the policy of the Department of Health and Human Services that when in-house sources are insufficient to support the mission of the IHS, personal services contracts authorized by Administrative Provisions of Public Law 103-332 may be executed.
APPLICABILITY AND SCOPE.
1. This circular applies to contracts awarded for personal services with entities, either individuals or organizations, for the provision of services in facilities owned, operated or being constructed under the jurisdiction of the IHS.
2. Statutory authority to enter into a personal services contract is included in 5 United States Code 3109 as implemented by the Department of Interior and Related Agencies Appropriations Act, 1995, Public Law 103-332.
3. A personal services contract is characterized by the employee-employer relationship it creates between the Government and the contractor's personnel. The descriptive elements used in assessing whether or not a proposed contract is personal in nature are provided i n Federal Acquisition Regulation (FAR) Subpart 37.1.
4. It is the purpose of personal services contracts to: (1) facilitate accomplishment of the IHS mission; (2) maximize beneficiary access to IHS facilities; (3) enhance quality of care by promoting the continuity of the patient/provider relationship; and (4) ensure adequate services for facilities under construction. This authority is intended to provide the maximum flexibility to ensure that IHS facilities are constructed and staffed adequately.
5. DEFINITION.
  Personal Services Contract. A contract that, by its express terms or as administered, makes the contractor personnel appear, in effect, to be government employees.
6. REQUIREMENTS.
  1. Personal services contracts are appropriate for use: (1) when qualified career employees cannot be hired; (2) during times of increased cyclical or seasonal workload; (3) where the workload is variable or does not conform to the standard work week; (4) during the extended absence of an IHS employee; (5) to accomplish a project or function that has a specified termination date; and (6) to accomplish a project or function that has limited or reimbursable funds, e.g., Medicare, Medicaid, private insurance, research grants, and etc.
    This authority may also be used in a transitional period when contracting of a particular function is anticipated.
  2. Personal services contracts should not be used to displace current permanent career employees. Temporary clerical services may be obtained by employing private sector temporaries in accordance with FAR coverage at3 7.112 whenever possible or by a personal services contract depending on the relative cost and personnel management requirements of the facility.
  3. So far as may be practicable, Contracting Officers should ensure that the Buy Indian Act authority is utilized to the maximum extent, possible when awarding personal services contracts.
  4. Personal services contractors shall be subject to the same quality assurance, credentials, licensure, and other qualification standards as those required of IHS personnel. In addition, health care providers, other than paraprofessionals, must be licensed in a State, District of Columbia, Puerto Rico or a Territory of the United States to perform the contract services within IHS facilities. It is the responsibility of the Contracting Officer and Project Officer to ensure that required criteria have been satisfied by the contractor.
  5. Pursuant to Public Law 103-226, Federal Workforce Restructuring Act of 1994, an employee who has received a voluntary separation incentive payment and enters into a personal services contract within 5years after the date of separation shall be required to repay to the agency the entire amount of the incentive payment.
  6. Individuals providing services as categorized in Exhibit A, the duties and responsibilities of which involve regular contact with, or control over, Indian children, are subject to a character investigation. IHS personnel offices will conduct these investigations following award of a personal services contract unless in the judgment of the Contracting Officer, in consultation with the Personnel Officer, investigation may be waived based on prior investigations on file. Until the character investigation has been completed and the contracting officer notified, such individuals shall not have unsupervised contact with Indian children.
  7. Federal Tort Claims Act coverage for medical related claims is extended to personal services contractors only when an incident of negligence is alleged to have occurred during delivery of services as provided for by the contract in a facility owned, operated, or constructed under the jurisdiction of the IHS, by a contracted health care provider. The services provided must have been within the scope of the personal Services contract.
7. PROCEDURES.
  1. Award and Administration of Personal services Contracts.
    Contracts entered into for personal services shall be awarded and administered pursuant to the provisions of FAR Part 37, Health and Human Services Acquisition Regulation (HHSAR) Part 337, and IHS supplementary contracting provisions.
  2. Accountability.
    In establishing effective lines of authority and accountability, IHS supervisors may direct the activities of personal services contractors on the same basis as IHS employees. Each contract with an individual or an entity, such as a professional corporation or partnership, for the personal services of an individual must contain language which indicates the contractor acknowledges that the performance of individuals under the contract is subject to the supervision and direction of a designated Government officer or employee.
    Further, the contract shall contain a description of the monitoring and recordkeeping procedures used to ensure contract compliance and proper payment. These procedures must be able to demonstrate through time and attendance logs, minutes of meetings, sign-in/sign-out sheets, or other appropriate records that services called for under the contract have been rendered. This description shall also identify the Government official (by title) responsible for verifying contract compliance.
  3. Posting and Synopsis Requirements.
    Acquisitions for personal services contracts may be exempt from the posting and synopsis requirements of FAR Part 5,provided, the Contracting officer provides adequate advance notice of contracting opportunities to individuals and organizations residing in the geographic vicinity where the services are to be performed.
    Applicants shall be solicited through at least one publication which serves the geographic vicinity of the health facility. The notice must include the qualification criteria against which individuals responding will be evaluated.
  4. Evaluation and Ranking.
    The Contracting Officer shall provide the qualifications of individuals responding to the notice to the program office for evaluation and ranking. Individuals must be considered solely on the basis of the professional qualifications established for the particular personal service being acquired and the Government's estimate of reasonable rates, fees, or other costs. The program office shall provide the Contracting Officer with written rationale for the ranking of individuals consistent with the required qualifications.
  5. Negotiations.
    Upon receipt of the program office evaluation, the Contracting Officer shall either:
    1. Enter into negotiations with the highest ranked applicant. If a mutually satisfactory contract cannot be negotiated, negotiations shall be terminated with the highest ranked applicant and the Contracting Officer shall enter into negotiations with the next highest.
    2. Enter into negotiations with all qualified applicants and select on the basis of qualifications and rates, fees, or other costs.
  6. Cancellation of Requirements.
    If a fair and reasonable price cannot be obtained from a qualified individual, the requirement should be canceled and acquired using procedures other than those established for personal service contracts.
  7. One Response to an Advertised Requirement.
    In the event only one individual responds to an advertised requirement, the Contracting Officer is authorized to enter into negotiations and contract award. In this case, the individual must still meet the minimum qualifications of the requirement and the Contracting Officer must be able to make a determination that the price is fair and reasonable.
  8. Compensation.
    Personal services contractors shall be compensated only for periods of time actually devoted to the delivery of services required by the contract. The contract may provide for compensation at a rate for time actually worked (e.g., per day, per week, per month) or it may provide for performance of a specific task at a fixed price. The amount or rate of payment shall be determined on a case-by-case basis.
    The cognizant Contracting officer shall make a written determination of the reasonableness of compensation to be provided under the contract taking into consideration the relative importance of the duties to be performed; the stature of the individual in his/her specialized field; comparable pay positions under the Classification Act, or other Federal pay systems; rates paid by private employers; and rates previously paid for similar work..
    The Contracting Officer may obtain advice from the cognizant Personnel Officer concerning equivalent rates for federal hires.
8. RESPONSIBILITIES.
  1. The Area Senior Contracting Officer, and the Contracting Officers for the Regional Offices of Engineering Services, the Administrative Services Center, and Perry Point Supply Service Center shall be responsible for the administration and management of contracts entered into pursuant to this authority, ensuring that effective means of obtaining adequate quality services are achieved in compliance with the FAR, HHSAR, and IHS supplementary contracting provisions, including the Buy Indian Act.
  2. The Division of Contracts and Grants Policy, Office of Administration and Management, Headquarters East, Rockville Maryland shall be responsible for oversight of the personal services contracting process within the IHS.
9. EFFECTIVE DATE.
  This circular is effective upon date of signature and will remain in effect until rescinded.
/Michael H. Trujillo/
Michael H. Trujillo, M.D., M.P.H.
Assistant Surgeon General
Director, Indian Health Service

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