The contractor argued he was paid as an independent contractor when he really worked as a services contractor and should have been paid as such. The Federal Circuit disagreed, holding that his work did not require the level of government supervision that characterizes services contractor work.
John Douglas Burke v. Secretary of Health and Human Services, Fed. Cir., No. 2024-1019
- Claim – The contractor submitted a claim for the difference between his actual pay and what he believed to he should have been paid from 2018-2021. He argued he was actually working as a services contractor and therefore should have been paid like a federal employee rather than an independent contractor. The Civilian Board of Contract Appeals (CBCA) dismissed his claim. He appealed to the Federal Circuit.
- Supervised Services Contractor – The court acknowledged a service contract occurs when “the contractor personnel are subject to relatively continuous supervision and control of a government officer or employee.” 48 C.F.R. § 37.104(c)(1). The contractor alleged he met this requirement because he worked at the agency’s site, his address was identified in research publications as the agency’s campus, his tools and equipment were furnished by the government, his services were integral to the agency, he attended meetings with agency employees, and was fully integrated with the agency staff. The court did not think this indicated direct government supervision of his work.
- Alleged Board Errors – The contractor alleged that CBCA improperly dismissed his claim for four reasons:
- The contractor maintained the CBCA incorrectly focused its analysis on the supervision issue and largely ignored other requirements. The court said the analysis was proper as the supervision element was paramount.
- The contractor alleged the Statement of Work (SOW) showed he was subject to supervision by the agency staff and CBCA did not consider the SOW when it dismissed his claim. The court pointed out that the contractor specifically argued to CBCA to not consider the SOW because he had not even seen it yet.
- The contractor claimed CBCA overlooked the issue of whether the agency was authorized to issue personal services contracts. The court noted CBCA had acknowledged that no statute allowed the agency to award a personal services contract. However, the purchase orders were not illegal personal services contracts because the contractor was not subject to government supervision.
- The contractor contended that CBCA failed to consider the absence of FAR clauses in his purchase orders. Although CBCA did think it was odd, the court ruled that the purchase orders were not too indefinite to enforce, especially since the performance was completed, and mandatory FAR clauses could be read into the contracts.
The contractor represented himself pro se.
— Case summary by Joshua Lim, Assistant Editor
