The following definitions apply for purposes of securing consulting services:
A consultant is an individual acting on his or her own behalf who provides expert advisory or assistance services of a technical or professional nature on a fee or per diem basis. Current Laboratory employees may not be Laboratory consultants.
A consultant agreement is an agreement between the Laboratory and a person acting as an independent subcontractor in performing consulting services.
A personal services agreement (PSA) is an agreement between the Laboratory and an established company that makes available by name one or more of its employees as consultants.
Consultant services are the services of an expert who personally renders services to the Laboratory on a short-term or infrequent basis. Consultants provide technical, scientific, engineering, and/or administrative expertise not otherwise available to the Laboratory. Consulting services may consist of information, advice, opinions, alternatives, conclusions, recommendations, or direct assistance, such as studies, analyses, evaluations, and liaison. Consultant services may be provided under a consultant agreement or a PSA. Most architect and engineer services are excluded from the definition of consultant services.
A technical contact, coordinator, or supervisor is the Laboratory employee(s) responsible for ensuring that a particular consultant's services are properly authorized, the work performed is acceptable, and the amounts claimed under the agreement are correct.
The Laboratory will engage the services of a consultant when such services are of a short-term or intermittent nature, contribute to the Laboratory's mission, and cannot be performed as effectively by a regular or temporary employee.
Consultant services allow the Laboratory to:
Under no circumstances may a consultant be used to specifically aid in influencing or enacting legislation. Consultants may not perform work of a policy-making, decision-making, managerial, or supervisory nature nor may they approve or disapprove actions that commit or expend Laboratory funds. Consultants work independently and not under Laboratory supervision. Consultant services may not be obtained for unauthorized purposes, such as to bypass or undermine personnel ceilings or pay limitations.
Normally, consulting services are contracted for in connection with specific research, administrative tasks, or problems because there is a need for a person whose
Consultant agreements must specify an anticipated number of service days. A consultant may not normally receive fees for more than 90 service days within the agreement year. DOE approval must be obtained in advance for agreements that provide for more than 90 service days per agreement year. When the need is expected to exceed these time requirements, regular part-time employment or contract labor should be considered and, if appropriate, arranged in accordance with existing employment practices.
Agreements for consulting services normally are established for a year or less and cover a period for which there is a foreseeable need for the consultant's services. Agreements are renewed only when there is a verified continuing need. Agreements may be written for a period of up to five years, however, with appropriate justification from the requester.
Consultants are selected on the basis of qualifications, resources, experience, and needs of and costs to the Laboratory, as determined by the division requiring the particular service and as approved by the Procurement Manager. Agency or similar fees are not paid to others for locating a consultant.
Laboratory policy requires that consultants refrain from activities on behalf of the Laboratory and DOE that could be interpreted as creating a conflict of interest for the consultant. Accordingly, the terms of agreements to obtain their services require that consultants or firms furnishing the services of their named employees as consultant:
An Organizational Conflict of Interest (OCI) Preprocurement Fact Sheet must be completed and accompany each consultant agreement request package. This fact sheet is available from the Office of the Chief Financial Officer/Procurement.
If the required work appears to require OCI review (i.e., evaluation services or activities, technical consulting and management support services, professional services, or other contractual situations where there is a reasonable possibility that an OCI may exist or arise), award may not be made until a DOE finding of the OCI has been obtained. This determination can be made from the information provided in the Fact Sheet and in the consultant request package (e.g., employer, background) and obtained from the consultant during fee negotiations (e.g., former employers, clients).
In addition to the foregoing, California law prohibits any University (Laboratory) employee from making or participating in the making of a decision if a financial conflict of interest exists for the employee. This extends to the employee's involvement both in selecting a consultant and in the consultant's subsequent work.
Consultants themselves are subject to the requirements of the University's Conflict of Interest Code, including filing economic interest statements and disqualification requirements when they make final government decisions or operate in a staff capacity and substantially perform the same duties as an individual holding a position specified in the Laboratory's list of designated positions. See University Conflict of Interest Code for additional details.
University policies and practices govern the compensation that consultants may receive concurrently from multiple University sources. Accordingly, by the terms of agreements executed for that purpose, consultants rendering services to the Laboratory must:
In addition, DOE regulations prohibit a consultant from being concurrently paid by DOE, whether as an employee of or as a consultant to DOE, while performing work on a full-time employment basis with any other DOE cost-type contractor. The Laboratory may borrow the individual from another DOE cost-type contractor if any payment is a cash payment made under the DOE/LBNL Contract between the University and DOE or DOE procedures to such other contractor and not to the individual. These limitations do not prohibit other federal-agency personnel from rendering consulting services to the Laboratory on their own time to the extent permitted by the particular agency's regulations and as approved by the Procurement Manager.
University policies, which are based on federal immigration laws applicable to the Laboratory, allow holders of immigrant visas, H-1 visas (persons of distinguished merit), and J-1 visas (exchange visitors) to be fully compensated when retained by the Laboratory as consultants. Holders of B-1 visas (visitors on business) may not be paid consultant fees, however, although they may be reimbursed for travel and subsistence. Holders of B-2 visas (visitors for pleasure) may not be paid fees or reimbursement of any kind.
Site Access Services, Foreign Visitors Unit, should be notified as soon as possible of proposed visits that will involve payment of consultant fees to enable that unit to send proper visa documentation to the visitor before departure from the visitor's home country. Requests for adjustment in visa status should also be processed through the Foreign Visitors Unit. Foreign nationals must have social security numbers before award of a consultant agreement.
University policy governs when and under what circumstances University of California faculty members may serve as consultants to the Laboratory. Approval of the proposed faculty consultant's academic department on a case-by-case basis must be obtained through the Office of the Chief Financial Officer/Procurement. University staff personnel normally may not be retained as consultants.
When the services of former employees (including retired employees) are required, the Laboratory's practice is to place such persons on indeterminate-time work schedules through the Human Resources Department. In exceptional cases, if the work is not supervised and the Laboratory has no control of the results of the work, the use of a consultant agreement or PSA is appropriate. Particular care must be taken to ensure that the selection of former employees, including retired employees, to serve as consultants to the Laboratory will best serve the Laboratory's interests.
Laws and regulations affecting the UCRS and PERS (retirement systems) permit retired members of both systems to work indeterminate or part-time schedules and as contract labor. The Human Resources Department should be contacted for employment of retired faculty and staff.
Consultants, as independent contractors or employees of independent contractors, usually may adopt (subject to technical contact approval) arrangements suitable to the consultant concerning performance details, such as times and places for rendering the agreed-on services. In each case, however, the technical contact is expected to ensure that a consultant's overall performance will provide the most satisfactory results for the Laboratory.
Consultants should be required to furnish reports or other data documenting that services were satisfactorily rendered, as requested by the technical contact in accordance with the terms of the agreement. When this is impractical, the technical contact is expected to maintain records adequate for this purpose.
The technical contact is expected to closely monitor the work of the consultant to ensure that the quantity and quality of work produced during the time allotted are acceptable. Instances of unsatisfactory performance should be documented. Termination action should be initiated promptly through the Office of the Chief Financial Officer/Procurement when continued service by a consultant is deemed inadvisable.
Consultants normally are paid as agreed, with either daily rates or fees for each full day the consultant renders services, including travel. In addition, consultants may be reimbursed for certain costs and expenses, such as clerical and related support normally indicated in the consultant's proposal, when approved in writing by the Office of the Chief Financial Officer/Procurement. Fees will be authorized only when determined reasonable in the particular circumstances and properly documented in the Procurement record of the agreement.
Reasonableness of a consultant's fees should be based on the individual's established market value and the market value of the services to be provided. Fee rates based on salary should be substantiated by a copy of a current paycheck stub, the prior year's W-2 form, a letter of agreement with the employer, or a statement of substantiation from the employer.
Fee rates based on contractual arrangements with other clients may be substantiated by submitting copies of client agreements or other suitable documentation. The number of required submissions may vary depending on the amount of the requested fee and/or value of the submitted agreements.
As stated in Paragraph (B)(7), above, limitations are imposed by DOE and the University on using consultants who are also performing other DOE or University work.
Previously, consultant agreements or PSAs with fees that exceeded $700 per day had to receive DOE approval before placement. Now, instead of the $700/day limitation, DOE has placed an overall cap on the amount of funds that can be spent for consultants each fiscal year. The overall cap for FY 1996 is not to exceed $1,750,000. The Laboratory is responsible for documenting the rate of reasonableness but can authorize any rate under this agreement. When the cap is reached, all agreements that contain rates exceeding $700 per day require DOE approval.
Fee income is subject to federal and state income tax. Laboratory Accounting will issue appropriate tax forms, covering total fee dollars paid during each calendar year to all consultants.
Consulting agreements may be written by the Office of the Chief Financial Officer/Procurement on a no-fee basis, allowing reimbursement of expenses only. Expenses must be reimbursed in accordance with Laboratory policy, such as the Laboratory travel policy. If no fee is paid, consultants may serve an unlimited number of days per year and a solicitation is not necessary.
Reimbursement of expenses is primarily limited to travel and travel-related expenses, using Laboratory travel policies as a basis for determining reasonableness. Foreign travel requires prior DOE approval. Other types of allowable expenses, to the extent that they are not covered in the consultant fee, include secretarial services, computer time, and any other reasonable cost deemed necessary for successful completion of the consultation. Separate charges for the use of special facilities or equipment owned by the consultant, his or her employer, or other vendors are usually not considered reimbursable, unless justified by the requester and approved by the procurement specialist before agreement award.
Acquisition of capital equipment is generally not allowed. Deviating from this procedure requires a memorandum substantiating the necessity of such action, approval and authorization of the Procurement Manager, and inclusion of appropriate property coverage in the consultant agreement or PSA.
Consultants normally are reimbursed for travel and subsistence expenses in accordance with the Laboratory's DOE-approved travel policies and rules for consultants unless, as is often the case in PSAs, the Laboratory has approved the travel policies and rules of the firm involved.
Travel expenses will be reimbursed from the consultant's business (or from any place at which the consultant may be located when called on to perform services) and for the consultant's return to any point as long as reimbursement does not exceed the travel cost of returning to the place from which travel was authorized or to the consultant's business address.
The consultant will be paid for authorized travel expenses after the submission of a properly certified travel voucher and other reasonable proof required by the Laboratory.
University and government policies form the basis for rules of conduct to which consultants agree to be bound through the agreements they execute to render their services. These rules specifically prohibit the following:
Technical contacts are responsible for guarding against such situations by reminding consultants of their obligations in these matters and advising them when and from whom to obtain further guidance in questionable cases.
Under the DOE/LBNL Contract, the Laboratory is required to include in its consultant agreements and PSAs provisions pertaining to patents, data, and copyrights. These basically concern such matters as patent rights; rights to data, including copyrights; and patent and copyright infringement.
Technical contacts are expected to ensure that the consultant's obligations in these matters (e.g., reporting inventions, reporting notices or claims of infringement, and securing required DOE approvals) are properly fulfilled. If the consultant does not meet these obligations, the technical contact is expected to notify the Office of the Chief Financial Officer/Procurement immediately so that appropriate timely action may be taken. See RPM §5.03 (Patents).
Consultants must secure prior written approval from the Laboratory to subcontract, assign, transfer, or otherwise employ anyone to do any of the work, except incidental clerical or similar support work, called for under the agreement with the Laboratory. This approval is secured through the Procurement Manager.
Agreements for securing consultant services specify that consultants are required to take all reasonable precautions at Laboratory sites to protect the environment, safety, and health of all persons involved and to comply with all applicable environmental, safety, and health regulations and requirements of the Laboratory and DOE. The Laboratory may stop the particular work any time a consultant fails to comply.
The Laboratory will require a consultant to maintain insurance when:
The level of insurance required varies, depending on the relative hazard of the work being done and the likelihood of loss. Some operations are more hazardous than others. Some consultant agreements and PSAs are not hazardous, but the possibility of loss may be significant.
The following types and minimum levels of insurance coverage are generally required:
As proof of insurance, the consultant must provide an industry-standard certificate of insurance before working on site. Except for professional liability and workers' compensation insurance, the certificate of insurance must name the Regents of the University of California and the United States Department of Energy as additional insured.
The Laboratory Risk Manager may waive, revise the limits, or prescribe the types and levels of insurance required for particular types of work.
No consultant may be indemnified unless prior approval is obtained from DOE-HQ and the Regents of the University of California. Laboratory counsel should be consulted on any request by a consultant for indemnification.
At a minimum, a request for consultant services package should contain the following information regarding the consultant and/or the services to be performed:
If the package is not complete or the information is inadequate, the request package may be returned to the requester with a memorandum explaining the reasons for rejection and requesting the additional information.
Formal, written solicitations and proposals are not required for consultant agreements or PSAs under the small purchase threshold (currently $100,000). Consultant agreements and PSAs expected to exceed $500,000 require the submission of cost or pricing data.
The Office of the Chief Financial Officer/Procurement negotiates the agreement using a University- and DOE-approved standard form, either a consultant agreement or a PSA. Understandings are established and confirmed in the agreement concerning the nature and extent of services to be rendered, where and when services will be performed, the fee to be paid, travel expenses to be reimbursed, and other details discussed in above paragraphs.
Daily fees paid to University of California faculty members are based on University Academic Policies. Annual salaries are divided by 189 days for 9-month appointments, 236 days for 11-month appointments, and 258 days for 12-month appointments; 30 percent is then added for fringe benefits and the total rounded to the nearest dollar. Fees for faculty of other universities may be based on this formula, except that 15% is added for fringe benefits. Such fees may also be based on previously established rates paid to the faculty member by others for similar services. Fees for other professionals generally fall in this latter category.
Particular care must be taken to ensure that the consultant's obligations and the role of the technical contact relative to these obligations are clearly understood. The consultant should be cautioned that any changes in services or other terms of the agreement will be recognized by the Laboratory only if authorized in writing by Procurement. Both the consultant and technical contact should also be cautioned not to incur any costs until the agreement has been fully executed.
The DOE/LBNL Contract establishes the right of DOE to approve or disapprove all consultant and personal services agreements. Certain advance blanket approvals have been secured from DOE that cover most agreements. Specific prior approvals, secured through the Office of the Chief Financial Officer/Procurement, are required in more unusual agreements, as indicated below:
No changes, deletions, exceptions, or additions to the standard agreement terms and conditions may be included in any agreement without prior written approval of the Laboratory General Counsel and DOE Office of Chief Counsel. This approval is secured through Procurement.
The technical contact normally invites the consultant to the Laboratory, indicating the date(s) for the desired visit(s). Visits should not be made until the agreement has been executed. If travel by the consultant is anticipated to be required during the visit(s), a Request for Consultant/Personal Services Agreement form should be marked accordingly. Reimbursement for travel is obtained by submitting Stock Form 7600-55366 (Request and Authorization for Official Travel). Local travel by the consultant generally requires only one blanket authorization for the term of the agreement. As stated in Paragraph (C)(9), above, reimbursement for travel will be in accordance with Laboratory-approved travel policies.
The technical contact is responsible for directing the consultant to the Badge/Parking Permit Office, where the appropriate badge and parking permit may be obtained, and for ensuring that the consultant is properly directed to the person or group for whom the services will be rendered.
The Laboratory may pay fees and reimburse travel costs to permit a consultant to attend meetings away from the Laboratory. Written justification must be provided to the Office of the Chief Financial Officer/Procurement and approval obtained in advance for such attendance. Generally, approval is granted only when it can be shown that attendance by a regular employee cannot accomplish the same purpose.
Under a consultant agreement, the consultant should submit Stock Form 7600-65153 (Claim for Consulting Services) to the technical contact after each visit or at regular intervals of at least once a month:
Under a PSA, the firm generally submits the claim periodically to the Office of the Chief Financial Officer/Accounts Payable in the form of an invoice. Accounts Payable then arranges for technical contact certification and further processing.
Technical contacts should ensure that, if feasible, consultants call at the Berkeley Lab Travel Office during each visit to settle their travel claims.
Most agreements have a term of about one year and vary according to what is administratively the most practical termination date. Because many consultants render services that are needed for longer periods, the standard forms to secure their services provide for routine renewal as the consultant and the Laboratory agree. Agreements that are not renewed simply terminate without further obligation when they expire.
Renewal is accomplished through amendment, based on terms negotiated in the manner of the original agreement. Approximately eight weeks before expiration of the agreement, the Office of the Chief Financial Officer/Procurement initiates this action by a form memorandum sent to the technical contact involved. If the decision is made not to extend the agreement, the appropriate block in the form memorandum is checked, signed, and returned to Procurement without further action. If renewal is desired, the additional information requested in the memorandum is provided, and the memorandum is signed by the requester and the division director and returned to Procurement.
Personal services are treated in essentially the same manner as consultant services, except as follows:
The following policies and procedures apply to consultant agreements and PSAs and can be reviewed for additional details: