427593 Notice of Final Rulemaking to amend Chapter 27 of Title 6B, Temporary Assignment of Personnel
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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF FINAL RULEMAKING
The Director of the D.C. Department of Human Resources, with the concurrence of the City Administrator, pursuant to Mayor’s Order 2008-92, dated June 26, 2008, and in accordance with the provisions of Chapter XXVII of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-627.01 et seq.) (2006 Repl.), hereby gives notice that final rulemaking action was taken to adopt the following rules. The rules amend Chapter 27, Temporary Assignment of Personnel, of Title 6 of the District of Columbia Municipal Regulations (DCMR), to update all citations to the D.C. Official Code and other legal and regulatory citations and references to agencies’ names throughout the chapter; and make other minor non substantive changes throughout the chapter. Though no comments were received to the Notice of Proposed Rulemaking published on August 28, 2009 (56 DCR 007102), non-substantive changes were made to correct subsection numbering in section 2702. Final rulemaking action was taken on June 17, 2010.
CHAPTER 27
TEMPORARY ASSIGNMENT OF PERSONNEL
Chapter 27, Temporary Assignment of Personnel, of Title 6 of the District of Columbia Municipal Regulations, is amended to read as follows:
2700 STATUTORY AUTHORITY AND APPLICABILITY
2700.1 The statutory authority for temporary assignments of personnel is contained in Chapter XXVII of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-627.01 et seq.).
2700.2 This chapter covers all District government employees except for the following:
(a) The Mayor and members of the Council of the District of Columbia;
(b) Members of Boards and Commissions; and
(c) Educational Service employees of the University of the District of Columbia.
2701 AUTHORIZATION FOR TEMPORARY ASSIGNMENTS OF PERSONNEL
2701.1 District government agencies are authorized to enter into personnel exchange agreements with private sector organizations, institutions of higher education, or agencies of federal, state, and local governments.
2701.2 A personnel exchange agreement authorized under this chapter may be used only when supervision of the participating employee changes from that of his or her permanent employer to supervision by the agency or organization to which the assignment is made.
2701.3 Prior to commencing an assignment pursuant to this chapter, a written agreement shall be executed. The written agreement shall specify all of the following:
(a) The duties and responsibilities to be carried out in the assignment;
(b) The terms and conditions for payment of salary and other expenses, or reimbursement among participating agencies or organizations;
(c) A statement that the assigned employee shall observe all rules governing the agency or organization to which the assignment is made under the agreement;
(d) The signature of the assigned employee indicating concurrence in and understanding of the assignment;
(e) The signatures of appropriate officials of the sending and receiving agencies or organizations; and
(f) The signature of the Director of the D.C. Department of Human Resources (DCHR) or independent personnel authority concurring in the assignment.
2701.4 An assignment under a personnel exchange agreement may be made for a period of up to two (2) years and, with the concurrence of the agencies or organizations and the employee involved, may be extended in increments of one (1) year. A written extension agreement shall be executed and signed by the employee, the appropriate officials of the sending and receiving agencies or organizations, and the Director of the DCHR or independent personnel authority concurring in the extension of the assignment.
2702 ASSIGNMENT OF EMPLOYEES FROM PRIVATE SECTOR ORGANIZATIONS TO DISTRICT GOVERNMENT
2702.1 It is the policy of the District government to utilize personnel exchange agreements sparingly to assign private sector employees to District agencies to meet highly specialized needs for professional services on a temporary basis.
2702.2 Nothing in this chapter shall be interpreted to mean that in every personnel exchange agreement between a District government agency and a private sector organization the District government agency shall be the party paying any or all of the costs of the professional services to be provided by the private sector employee.
2702.3 A personnel exchange agreement to assign a private sector employee to a District government agency covered by this chapter shall contain the terms and conditions for the payment or the reimbursement of salary, fringe benefits and, if appropriate, general and administrative expenses.
2702.4 When a District government agency is reimbursing a private sector organization, the private sector organization shall not receive compensation in a manner to earn a profit from the assignment of the private sector employee to the District government agency.
2702.5 A private sector employee assigned to a District government agency shall not receive compensation and fringe benefits greater than those he or she would have received in the absence of the agreement assigning the individual to the District government agency.
2702.6 Any reimbursement by a District government agency entering into a personnel exchange agreement shall be limited to the cost of documented salary, applicable fringe benefits including payroll taxes, social security, unemployment insurance, worker’s compensation insurance, health insurance, pensions, Federal Insurance Compensation Act payments, and, if appropriate, general and administrative expenses.
2702.7 Prior to entering into a personnel exchange agreement and commencing the assignment of a private sector employee to a District government agency pursuant to this chapter, the agency head shall prepare a written determination and findings explaining the reasons the required professional services cannot be secured through standard recruitment practices or procurement procedures.
2702.8 The written determination and findings pursuant to section 2702.7 of this section shall include but not be limited to the following:
(a) A detailed justification explaining the need for the professional services;
(b) The qualification requirements for the professional services;
(c) A detailed statement and documentation demonstrating the specific outreach and recruitment efforts undertaken by the agency to secure the professional services needed through standard recruitment practices;
(d) A statement signed by the Chief Procurement Officer (or his or her designee) certifying that the agency has demonstrated that it cannot utilize procurement procedures to secure the professional services needed, and stating the basis for that conclusion; and
(e) A statement signed by the agency head to attest that the agency has demonstrated that it cannot secure the required professional services through standard recruitment practices or procurement procedures, and stating the basis for that conclusion.
2702.9 The written determination and findings and supporting documentation, and the signed procurement certification described in section 2702.8 (d) of this section shall be presented to the Director of the D.C. Department of Human Resources (DCHR) or independent personnel authority, as applicable. The Director of the DCHR or independent personnel authority shall certify, in writing, that:
(a) The agency has exhausted every effort to secure the professional services through standard recruitment practices; and
(b) The Chief Procurement Officer (or his or her designee) has certified that the agency has exhausted every effort to secure the professional services through standard procurement procedures.
2702.10 Notwithstanding the provisions of section 2702.9 of this section, the Chief Technology Officer shall certify all determinations and findings in the case of the Office of the Chief Technology Officer.
2702.11 The Director of the DCHR and each independent personnel authority, as appropriate, shall develop and publish appropriate procedures for the preparation and submission of written determinations and findings.
2702.12 When the District government agency is reimbursing the private sector organization, the private sector organization shall prepare a written reimbursement agreement for the cost of the salary, fringe benefits, and any general and administrative expenses to be reimbursed. The reimbursement agreement prepared by the private sector organization shall include all of the following:
(a) A detailed explanation of each category of costs and the actual amounts to be reimbursed by the District government agency;
(b) A certification of the accuracy of each category of costs and the actual amounts to be reimbursed by the District government agency; and
(c) A certification that any general and administrative expenses presented for reimbursement are actual costs, the reasons for incurring such general and administrative expenses and their justification, that those costs are allowable and reasonable, and that they were calculated using the standards and principles specified in section 2702.13 of this section.
2702.13 Any general and administrative expenses to be reimbursed by a District government agency for off-site employees shall be:
(a) Calculated using the standards in the Federal Acquisition Regulations (FAR) System, Title 48 of the Code of Federal Regulations, in particular, the standards and contract costs principles and procedures to calculate indirect costs in 48 CFR 31.203 (2000); and
(b) Based on and be consistent with the results of audited off-site overhead rates for a period of three (3) years prior to submission of the reimbursement agreement by the private sector organization.
2702.14 When general and administrative costs are to be reimbursed by the District government agency, the results of audited off-site overhead rates as described in section 2702.13 of this section shall be presented to the District government agency as supporting documentation to the reimbursement agreement.
2702.15 Prior to signing a personnel exchange agreement, the District government agency shall concur with all the terms and conditions of the assignment, particularly the terms of a reimbursement agreement prepared by the private sector organization under section 2702.12 of this section, when applicable, and sign the reimbursement agreement.
2702.16 The agency head shall submit the signed personnel exchange agreement and any supporting documentation, including the certified determination and findings in the case of the Office of the Chief Technology Officer, and the signed reimbursement agreement when applicable, to the Director of the DCHR or independent personnel authority. The Director of the DCHR or independent personnel authority shall review the personnel exchange agreement and any supporting documentation, and sign the personnel exchange agreement to concur in the assignment.
2702.17 The District government agency shall be encouraged and shall reserve the right to audit the reimbursable costs in a personnel exchange agreement under the circumstances and methods the District government agency deems appropriate and require the private sector organization to reimburse the District government agency for any unauthorized fees paid.
2702.18 A former District government employee working for a private sector organization shall be prohibited, for a period of two (2) years after his or her separation from District government employment, from participating in a personnel exchange agreement between the District government and the employing private sector organization.
2703 STATUS OF DISTRICT GOVERNMENT EMPLOYEES WHILE ON ASSIGNMENT
2703.1 A District government employee participating in a Personnel Exchange Program shall be considered either on detail to the receiving agency or organization, or on a leave of absence from the sending agency.
2703.2 While on assignment, a District government employee on detail shall be entitled to the same salary and benefits accruing to his or her position with the sending District government agency, and shall remain an employee of the sending agency for all other purposes except supervision of duties during the period of detail.
2703.3 The salary and benefits of a District government employee on detail shall be paid by the sending agency.
2703.4 While on assignment, a District government employee on leave of absence shall be entitled to at least the same salary and benefits to which he or she would otherwise be entitled.
2703.5 The salary and benefits of a District government employee on a leave of absence shall be paid by the receiving agency or organization unless the agreement contains different terms.
2703.6 Leave with or without compensation may be granted to a District government employee by the receiving agency or organization if the agreement permits the agency or organization to act as the leave-approving authority for the employee.
2703.7 A District government employee suffering disability or death in the course of the temporary assignment shall be treated as a District government employee under the District’s disability compensation program, except in any case in which the employee was entitled to and elected to receive similar benefits under the receiving agency’s or organization’s program.
2704 STATUS OF NON-DISTRICT GOVERNMENT EMPLOYEES WHILE ON ASSIGNMENT
2704.1 Unless the personnel exchange agreement contains different terms, the salary and benefits of non-District government employees on assignment to the District government shall be paid by the sending agency or organization.
2704.2 The receiving agency which appoints a non-District government employee under the Personnel Exchange Program may do so without regard to the regulations governing the selection of employees in the Career, Management Supervisory, and Educational Services and may or may not compensate such appointed employees from agency funds.
2704.3 A non-District government employee suffering disability or death while on assignment to the District government shall be treated as a District employee for the purpose of the District government’s disability compensation program unless he or she elects similar benefits from his or her permanent employment.
2705 TRAVEL EXPENSES
2705.1 Travel expenses of District or non-District government employees assigned to another government, private sector organization, or institution of higher
education may be paid by the District government, with the exception of travel expenses related to the work assignment at the receiving agency or organization.
2705.2 Travel expenses for transportation of immediate family, household goods, and personal effects to and from the location of the receiving agency or organization may routinely be paid by the District government under either of the following conditions:
(a) For an assignment of more than nine (9) months; or
(b) When an assignment is terminated in less than nine (9) months for reasons beyond the control of the employee that are acceptable to the agency.
2705.3 A daily allowance may be paid to a District or a non-District government employee on assignments of less than nine (9) months.
2705.4 Travel expenses, relocation costs, and daily expenses may be shared by the participating governments, private sector organization, or institution of higher education or may be the sole responsibility of either party to the agreement.
2799 DEFINITIONS
When used in this chapter, the following terms shall have the meaning ascribed:
Audit – examination of statements of costs actually incurred. Such audits may consist of desk reviews, test checks of a limited number of transactions, or examinations in depth, and shall be conducted in accordance with generally accepted accounting principles.
General and administrative (G&A) expense– management, financial, and other expenses, which are incurred by, or allocated to a business unit and which are for the general management and administration of the business unit as a whole. G&A expenses do not include those management expenses whose beneficial or causal relationship to cost objectives can be more directly measured by a base other than a cost input base representing the total activity of a business unit during a cost accounting period (48 CFR 9904.410.30 (2008)). General and administrative costs are indirect costs (48 CFR 31.203 (a), (b) (2008).
Off-site employee – an employee who is detailed or assigned to the work site of another organization.
Procurement procedures – mechanism by which an agency enters into a negotiated personal services contract for expert and consulting services pursuant to the provisions of 27 DCMR 1900 et seq.
