United States Marshals Service's Use of Independent Contractors as Guards
Audit Report 05-24
May 2005
Office of the Inspector General
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The United States Marshals Service (USMS) is responsible for housing and maintaining an average daily population of about 47,000 federal prisoners awaiting trial in federal courts. Federal prisoners in USMS custody are housed in local jails, contract facilities, and federal Bureau of Prisons (BOP) facilities throughout the country. Depending upon the length of a court trial, time spent in USMS custody may run from several days to several years, during which time the USMS is responsible for transporting prisoners to and from federal court facilities for trial proceedings. In addition, when prisoners require outside medical treatment, the USMS must provide secure transport to and from outside health care facilities and guard prisoners during the period of treatment. The USMS is granted authority under 28 U.S.C. Section 565 to hire personal services contract guards to assist USMS deputy marshals in day-to-day operations throughout its 94 districts. The USMS's primary sources for procuring personal services contract guards are 1) guard company vendors and 2) independent contractors. Guard Company Vendors Contracts with guard company vendors may be managed through USMS headquarters or individual districts depending on the size of the contract and the district's procurement authority. The Court Security Officer (CSO) Program, for instance, is a centralized operation in which contracting officers at USMS headquarters procure guard services through large-scale contracts, covering multiple districts. The CSO Program represents the USMS's most significant use of contract guard services involving the use of about 4,500 contract guards nationwide to provide courtroom security in the more than 400 federal courthouses in the 94 districts. Individual districts may also procure guard services through local guard company vendors, as we found in our recent audit of USMS prisoner medical care. In contrast to CSO contracts, these are smaller scale contracts, managed at the district level to provide for the guarding of prisoners taken to outside medical facilities for medical care. Independent Contractors We found that the primary method used to procure guard services at the district level is through the use of independent contractors. We surveyed the 94 U.S. Marshals about their use of personal services contract guards in the districts and received responses from 63, or 67 percent (see Appendix VI). Only 2 of the 63 said that they acquired guard services exclusively through local guard company vendors. Another five respondents said that they used a combination of both guard company vendors and independent contractors. The remaining 54 (86 percent) of the respondents said that they obtained guard services exclusively through the use of independent contractors. Unlike contracts with guard company vendors, which may be managed by the districts or by USMS headquarters, depending on the size of the contracts, procurement of independent contractors is an entirely decentralized function in which contracting officers in the districts contract with individuals for the necessary guard services. Contracts with independent contractors, as the term connotes, are individual contracts with a single contract guard. In Fiscal Year (FY) 2003, the USMS initiated and administered 2,786 separate contracts for each of its independent guard contractors. Although the Federal Acquisition Regulation (FAR) definition of personal services contracts includes all security guard services, the USMS more narrowly defines the term "personal services contract" as a contract for guard services with an independent contractor. As noted on page 4 of this section, the OIG has conducted two prior reviews of the USMS's use of guard company vendors; therefore, we decided to focus this audit on the USMS's use of independent contractors for guard services. The focus of our audit was on the USMS's use of these independent contractors. Use of Independent Contractors USMS policy covering the use of personal services contract guards (independent contractors) states that they are to be used on an "as needed basis," not as a replacement for full-time, USMS employees. When utilized, independent contractors' duties include: 1) guarding and processing federal prisoners in the cellblock, courtroom, and during transport; 2) guarding and transporting federal prisoners to and from medical appointments; and 3) guarding federal, seized or forfeited property (including entry control, roving patrol, fixed posts, and emergency response).7 Use of independent contractors for guard services varies from district to district. For example, two of the six districts we reviewed did not use any independent contractors in FY 2003, instead choosing to acquire needed guard services through local guard company vendors. Some districts used a combination of methods, acquiring most of its guard services through guard companies and using independent contractors on a very limited basis. Still other districts relied solely on independent contractors for guard services. Overall, the USMS's procurement of independent contractors for guard services has shown a steady increase, both in number and cost from year to year, as indicated in the table below: Independent Contractors Employed For
While the USMS prominently highlights its use of contract CSO's in its literature and on its website, no similar mention is made of the USMS's equally heavy reliance on the thousands of independent contractors used on a daily basis for prisoner handling activities. The term "shadow force" has entered the lexicon of USMS employees and is used in reference to this large, but unacknowledged pool of contract guards that operates alongside the deputy marshals. The term may also be attributed to the fact that the expanding ranks of independent contractors are approaching that of a one-to-one ratio to deputy marshals (i.e., every deputy marshal casts a contract shadow). The USMS's reliance on independent contractors was borne out in workload statistics that we reviewed indicating that independent contractors constitute a core part of the USMS's workforce in many districts, sometimes accounting for more than 50 percent of total hours charged to prisoner handling activities. Procurement Process for Independent Contractors Contracting for guard services through independent contractors differs in significant respects from contracting for guard services with guard companies. Under a guard company contract, the company, as the contractor, supplies the USMS with the agreed-upon guard services. The USMS pays the guard company for its services and the company, in turn, pays its employees (the contract guards) the agreed-upon wages per the contract. In addition, as the guards' employer, the guard company is responsible for personnel functions such as hiring, training, scheduling, timekeeping, payroll, and disciplinary actions. Under the procurement process for independent contractors, in contrast, the administrative and personnel functions rest entirely with USMS district personnel. Specifically, the USMS districts are responsible for awarding individual contracts for independent contractors, negotiating contract prices, scheduling, timekeeping, payroll, training, disciplinary actions, and contract termination, if deemed necessary. We previously conducted several audits that examined aspects of the USMS's use of contract guards. In our audit report entitled "United States Marshals Service Prisoner Medical Care," 04-14, February 2004, we disclosed that management of contract guard operations relative to prisoner medical care was characterized by inadequate training, breaches in policy, and lapses in internal controls. We noted problems in nearly all areas of contract guard activity, ranging from lack of documentation to overpayments. More importantly, the ill-managed contract guard operations created an environment in which the USMS cannot effectively control the risks inherent in transporting federal prisoners to and from off-site health care facilities. In one instance, a contract guard's failure to follow procedure, among other factors, had resulted in the escape from a hospital of a prisoner with active tuberculosis. In our audit report entitled "United States Marshals Service Court Security Officer Program," 00-21, August 2000, we disclosed several issues concerning the overall effectiveness of the CSO Program. Specifically, we found that: 1) there was no provision in the contracts for in-service training; 2) unannounced tests of security screening posts were being conducted, as required by USMS policy, at only 5 of the 16 district offices that we reviewed. Unannounced tests at the other 11 districts were conducted either infrequently, or in some cases not at all, and 3) a number of CSOs' security clearances and medical certifications could not be verified because documentation was not consistently maintained at the district level. Footnotes
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