United States Marshals Service's Use of Independent Contractors as Guards

Audit Report 05-24
May 2005
Office of the Inspector General

Appendix III

USMS Directives on Prisoner Management
Personal Services Contract Guards


The following are excerpts from USMS policy directives concerning the use of personal services contract guards for the purposes of prisoner management.

Scope of services

    Contract guard duties: When utilized, contract guards assist the USMS; duties include the following:

    1. Guarding and processing federal prisoners in the cellblock, courtroom, and during transport.

    2. Guarding and transporting federal prisoners to and from medical appointments.

    3. Guarding federal, seized, or forfeited property (including entry control, roving patrol, fixed posts, and emergency response).

    Restrictions: Contract guards may not be used for:

    1. Fugitive investigations;

    2. Out-of-district special assignments;

    3. International extraditions (JPATS contract guards may be an exception during prisoner movement);

    4. Personal security details;

    5. Witness security details (JPATS contract guards may be an exception during prisoner movement);

    6. Administrative support functions; or

    7. Any supervisory function.

    Work schedule: Contracted hours will be scheduled on an "on call/as needed" basis. District and JPATS management will determine if a contract guard is also working a shift or hours with a local agency (e.g., working a double shift).

    1. A USM-7, Bi-weekly Time Report, is to be used to record all personal service guard hours.

    2. Contract guards cannot be scheduled for more than 16 USMS duty hours per day;

    3. Overtime compensation will be paid after 40 hours have been worked per week;

    4. USMS operational personnel have the right to first refuse an opportunity to work overtime hours prior to a contract guard being offered overtime provided Law Enforcement Availability Pay hours have been worked and the event has been scheduled a week in advance, if applicable.

    5. Discontinued Service: Personal services contracts for guards may be terminated at any time for any reason. However, contractors must be provided 15 days notice before the contract can be terminated (pursuant to 48 CFR, Ch 1, FAR Section 52.249-12). All USMS property and identification must be accounted for and collected by the termination date.

Requirements

    General Requirements: All applicants must fulfill the following requirements:

    1. Be a United States citizen,

    2. Be at least 21 years of age,

    3. Speak, read, and write the English language,

    4. ossess a valid driver's license,

    5. Demonstrate a proficiency in firearms that meets USMS standards if the assignment requires the use of an armed contract guard,

    6. Be physically able to perform the full range of contract guard duties as described in the Statement of Work (SOW) without limitation,

    7. Have no medical problems (e.g., amputations, deformities, disabilities, etc.) that would restrict strenuous exertion or prevent satisfactory performance,

    8. Have no history of medical problems (e.g., high blood pressure, heart or respiratory disease, etc.) that would restrict strenuous exertion,

    9. Have no other health-related problems such as alcohol dependency, controlled substance abuse, illegal drug use, mental illness, or psychological disorders,

    10. Categories are used to separate contract guard applicants into groups for the purpose of contracting procedures and processing. These categories do not represent any hierarchy of qualifications.

      1. Category 1:  Actively employed sworn state or local law enforcement officers.

      2. Category 2:  Reserve sworn state or local law enforcement officers with a minimum of 1-year full-time law enforcement employment/experience.

      3. Category 3:  Former/retired sworn federal, state, or local law enforcement officers with a minimum of 1-year full-time law enforcement experience who are separated no longer than 5 years from law enforcement employment.

      4. Category 4:  Former/retired military police with full-time experience in the performance of guard duties over prisoners on a regular basis who are separated no longer than 5 years from law enforcement.

      5. Category 5:  Private security/correctional officers. Employment as a private security guard does not qualify applicants unless they have at least 3 years of full-time guard duties supervising prisoners on a regular basis. Applicants must also have received an accredited law enforcement course of training. Academic or technical training may not be substituted for experience.

Firearms

The districts and JPATS identify guards who will provide services while armed. Before providing services while armed, contract guards must meet the training and qualification requirements stated in the current USMS firearms policy, unless otherwise specified in this directive. Special deputation is not required for contract guards to provide armed services.

  1. Contract guards may be issued USMS firearms and ammunition.

  2. Contract guards may carry approved handguns and USMS shotguns. Rifles are not authorized for contract guard use.

  3. Active and reserve sworn state and local law enforcement officers (Categories 1 and 2) may carry the handgun and ammunition issued by the agency with whom they are employed after the USMS district firearms instructor has inspected the firearm for compliance with USMS policy.

  4. A contract guard may carry a personal handgun if it is inspected by the USMS district firearms instructor for compliance with USMS policy.

  5. Firearms Qualification

    1. Categories 1 and 2 contract guards are exempt from USMS firearms qualifications if they certify in the Affirmation of Work Qualifications for contract guards that they are currently qualified and authorized to carry their duty firearm. Otherwise, the USMS is required to qualify Categories 1 and 2 contract guards in accordance with USMS firearms policy.

    2. Categories 1 and 2 contract guards must have been qualified by their agency within the past 12 months and must re-qualify at least annually, thereafter. Otherwise, the USMS is required to qualify the contract guards in accordance with USMS firearms policy.

    3. Categories 3, 4, and 5 contract guards are required to qualify in accordance with USMS firearms policy.

Contract Guard Check List
(X Indicates Required Item)		 Source of Contract Service Guards
Category
One
Category
Two
Category
Three
Category
Four
Category
Five
Training:          
Bloodborne/Airborne
Pathogen
Optional
Optional
X
X
X
USMS Use of Force
X
X
X
X
X
Firearms qualification
(handgun)
Optional
Optional
X
X
X
Firearms qualification
(shotgun)
Optional
Optional
X
X
X
Code of Professional
Responsibility
X
X
X
X
X
Review of USMS policies
and procedures
X
X
X
X
X
View videos: Prisoner
Restraints and USMS/BOP
Prisoner Transportation
Optional
Optional
X
X
X

Accountable Property

All USMS accountable property such as USMS-issued weapons, USMS-issued identification, and related property or equipment will be secured in USMS custody at the end of each tour of duty.

  1. USMS management may waive this requirement when articulated circumstances make it impractical to secure issued items.

  2. Lost or stolen government property, including weapons, identification, uniforms with the USMS insignia, or other issued equipment, must be immediately reported to the USM or designee. Lost or stolen accountable property must be reported in accordance with current USMS policy.

  3. Accountable property must be retrieved from contract guards when their services are discontinued.

    1. The Human Resources Division (HRD) will have oversight of the contract guard identification.

      1. HRD will issue the identification software/program and supplies to administer identification cards.

      2. The guard identification cards are governed by the USMS Badge and Credential Policy.

      3. Lost or stolen identification will be reported as required by the USMS Badge and Credential Policy.

Procurement

Personal services contract guards will be procured in accordance with the Federal Acquisition Regulation (FAR) subpart 37.1.

  1. Oversight: Management and Budget Division (MBD), Office of Finance, will have oversight of the policies covering guard appropriations, procurement, and payment of personal services contractors.

  2. Initiating Actions: All proposed contract actions must be initiated by an USM-157, Requisition of Supplies and Services, Statement of Work, and an Optional Form 347, Order for Supplies and Services.

  3. Bidders List. District offices should establish a list of bidders who are cleared to perform services for the government. This is done by compiling a list of individuals who are financially sound, have professional integrity, and are capable of providing the services. The purpose of the list is to assist the district in meeting the Federal Acquisition Regulation (FAR) requirement that the government seek competition when it awards contracts. Thus, when the USMS has a requirement for a guard to provide services, it should solicit offers from three of the individuals on the list and award the contract to the guard offering the lowest price. Future contracting will be easier if the hourly rate charged by each guard is included on the bidder's list.

  4. Use of Multiple Contracts. District may fill their requirements through the award of separate contracts. For example, if a USM or CDUSM is satisfied with the performance of a particular contractor, they may award separate contracts to that individual to cover different requirements. Thus, one responsible contractor may receive a contract for guarding cellblock prisoners, another contract for guarding property, and/or a contract for transporting prisoners.

  5. Exceeding Procurement Authority. Should the contract per guard exceed the district's procurement authority, the action must be ratified by the Procurement Office. The districts and the JPATS shall properly justify the need to exceed the contract amount. To prevent districts or the JPATS from exceeding their procurement authority, that contract guard is to be exchanged for the next individual on the rotated list.

  6. FICA Withholding. The USMS is required by the Internal Revenue Code to withhold and report Federal Income Tax and Social Security (FICA).

  7. JPATS Contract Guards. Contract guards engaged to assist JPATS are contracted in Oklahoma City, Oklahoma; Alexandria, Louisiana; and El Paso, Texas.

  8. National Finance Center Payment. Contract guards will be paid through the National Finance Center (NFC) payroll system when possible. The NFC will record hours worked, provide pay statements, and do all necessary tax reporting. There are no limitations on hours worked by contract guards before they can be placed in the NFC system. Also, it is not required or recommended to remove contract guards from the NFC when their services are discontinued.

    1. District offices will be responsible for the overall implementation and maintenance of payroll records for contract guards using the NFC payroll system.

    2. A separate USM-7 will be used to record the contract guard's hours within a two-week pay period.

    3. The following forms are required to enroll a contract guard in the NFC and will be submitted to MBD:

      1. Direct Deposit Sign-up Form

      2. Department of Justice Locator (DOJ-233)

      3. Withholding Allowance Certificate (W-4)

  1. Non-NFC Payment. Contract guards may be paid by district check if they are not enrolled in the NFC system.

    1. Federal, state, local, and FICA deductions are required to be deducted from the earnings of the contract guard.

    2. Withholding Allowance Certificate (W-4) is required to calculate withholdings.

    3. Internal Revenue Service, Circular E, contains tables that are used to determine the amount of federal tax to be withheld.

    4. The district and JPATS are required to prepare and submit a Form W-2, Wage and Tax Statement, to the IRS for each contract guard at the end of the calendar year.

    5. Withholdings must be paid to the IRS electronically as mandated by current federal law.

    6. Management and Budget Division, Office of Finance, will assist with FICA calculations and submission of withholdings.

Contracting, General

  1. Statement of Work. A contract guard provides services under a Statement of Work or contract as an independent contractor. Contract guards shall perform the service stated in the SOW with the full knowledge that the authority vested in them can only be exercised in furtherance of the objective of the contract. (The SOW is approved for use by the Office of General Counsel. Changes to the SOW should be reviewed by the Prisoner Services Division prior to use).

  2. Reporting Relationships. Reporting relationships are as follows:

    1. Contracting Officer: A contracting officer is a person with the authority to enter into, administer and/or terminate contracts, and make related determinations and findings. The contracting officer is responsible for developing a Statement of Work, monitoring contract performance, and evaluating the criteria for awarding the personal services contract. Contractor performance issues need to be documented and forwarded to the respective contracting officer. The contracting officer may appoint a COTR to officer technical guidance and direction to a personal services guard and to officer technical guidance to a contracting officer. The USM or other appropriate individual may be a COTR after receiving the appropriate training. Only the respective contracting officer may change the terms and conditions of a contract.

    2. Oversight: Contract guards will receive general direction or oversight from the USM or their designee when handling, guarding, or transporting prisoners, or guarding property.

    3. Changes in Qualifications, Employment, or General Requirements: It is the responsibility of the contract guard to immediately notify the USM or designee of any significant changes in these areas.

  3. Affirmation of Work Qualifications for Contract Guards. The Affirmation letter is used to reduce contracting paperwork and affirm training requirements for contract guard applicants. Categories 1 and 2 applicants' current law enforcement agency may certify to the USM that the applicant/officer is not the subject of any internal or external investigations, under suspension, or on medical or administrative leave. Recertification is required on an annual basis or upon change of law enforcement agency or department. It is the responsibility of the contract guard to immediately notify the contracting officer of any significant employment change.

  4. Special Deputation. Special deputation is not required or recommended for a contract guard to provide services while armed or unarmed. The authority to perform services while armed, carry a concealed firearm, cross jurisdictional boundaries, and enforce federal laws are extended to contract guards in the federal function established by the Statement of Work or contract they enter into with the USMS. The USMS protects the contract guard for government liability purposes to the degree of a deputy marshal.

Contracting Procedures

  1. Procedures and Documents for the USM. The USM, or designee, requesting the guard service will complete the following and forward them and documents completed by the applicant to the contracting officer, usually the district administrative officer.

    1. Form USM-157, Requisition of Supplies and Services, will be completed and signed by the district staff member who is requesting guard services. The USM-157 is not to exceed the district's procurement authority.

    2. NCIC/NLET criminal checks will be run to check for outstanding warrants, criminal records, or restraining orders. Any positive hits may result in the discontinuance of the contracting process.

    3. Statement of Work request.

  2. Procedures and Documents for the contracting officer. The contracting officer will complete an Optional Form 347, Order for Supplies and Services, that will note the contract guard hourly, overtime, and not-to-exceed purchase order value upon value upon receipt upon receipt of the USM-157. A guard file will be developed for the OF-347, USM-157 Affirmation of Work Qualifications for Contract Guards, Fit for Duty Medical Certification, and Statement of Work.

  3. Procedures and Documents for All Applicants. The following will be completed and submitted to the USM or designee within 10 business days or at the time service is to be performed:

    1. Affirmation of Work Qualifications for contract guards will be provided by the districts and JPATS during the interview process. The applicant will have their immediate supervisor complete, sign, and date the qualification's statement.

    2. A Statement of Work for contract guard services will be reviewed, signed, and dated by the contract guard applicant.

    3. Form I-9, Employment Eligibility Verification.

    4. Form USM-234, Personal Qualifications Statement.

Responsibilities

  1. U.S. Marshals/Chief Deputy U.S. Marshals/JPATS:

    1. Identify suitable contract guard applicants and complete the contracting procedures and process.

    2. Complete limited background investigations on contract guards and guard applicants, when applicable.

    3. Provide training for contract guards on proper USMS policies and procedures.

    4. Print, issue, and maintain accountability for contract guard identification and equipment.

  2. Prisoner Service Division: Assist the districts and JPATS with the overall administration of the contract guard policy and procedures.

  3. Human Resources Division:

    1. Process and review limited background investigations.

    2. Process background waivers for contract guards.

    3. Provide assistance and oversight of the contract guard identification program.

  4. Management and Budget Division:

    1. Assist the districts and JPATS with the appropriations, procurement, and payment of personal services contracts.

    2. Provide assistance and oversight of the National Finance Center payroll system for the USMS.

    3. Assist the districts and JPATS with the development of Statements of Work and complying with requirements of the FAR and Federal Procurement Laws.

  5. Office of General Counsel: Assist the districts and JPATS in interpreting laws, regulations, legal instruments, and defend the USMS in any actions brought before a federal court or administrative tribunal.


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