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BRIEF

Policy Summary

This policy provides guidelines and requirements for requesting and using the services of a consultant at Lawrence Berkeley National Laboratory (Berkeley Lab).

Who Should Read This Policy

Any person involved with engaging the services of a consultant

To Read the Full Policy, Go To:

The POLICY tab on this wiki page

Contact Information

Chief Procurement Officer

POLICY

A. Purpose

Lawrence Berkeley National Laboratory (Berkeley Lab or the Laboratory) may engage the services of a consultant on a short-term or intermittent basis if the consultant contributes to the Laboratory's mission and those services cannot be provided as effectively by a regular or temporary Laboratory employee.

B. Persons Affected

Anyone involved with engaging the services of a consultant for Berkeley Lab

C. Exceptions

None

D. Policy Statement

D.1 General

1. Overview
   1. A consultant is an individual acting on his or her own behalf who independently provides expert advisory and/or assistance services of a technical or professional nature on a fee or per diem basis, but does not serve as a Laboratory employee and is not under Laboratory supervision.
   2. Services provided by consultants must meet the definition of "advisory and assistance services" as defined in the federal regulations incorporated into Berkeley Lab's UC-Department of Energy (DOE) Prime Contract.
   3. "Advisory and assistance services" are services that support or improve organizational policy development; decision-making; management and administration; program and/or project management and administration; or R&D activities. These services include the furnishing of professional advice or assistance designed to improve the effectiveness of Laboratory processes or procedures (including those of an engineering and technical nature). In rendering these services, outputs may take the form of information/data, advice, opinions, alternatives, analyses, evaluations, recommendations, training, and support needed for the successful performance of ongoing Laboratory operations. All advisory and assistance services are classified in one of the following categories:
      1. Management and professional support services.
      2. Studies, analyses, and evaluations.
      3. Engineering and technical services.
   4. Consultants work independently, do not serve as Laboratory employees, and are not under Laboratory supervision. Consulting services may not be obtained for unauthorized purposes, such as to bypass employment regulations or pay limitations or any other Berkeley Lab or applicable University of California (UC) Human Resources (HR) policies. Consequently, use of Consultant Agreements is not appropriate for obtaining temporary staffing, commonly known as contract labor. See the Options for Filing Resource Needs document linked on the Procurement Customer Guide webpage for more detail on the various channels for filling resource needs, and the appropriate mechanism for filling them.
   5. While consultants may support or improve the Lab's policy-making, decision-making, and management responsibilities, consultants may not serve as policy makers, decision makers, managers, or supervisors; nor may they approve or disapprove actions that commit or expend Laboratory funds. In addition, consultants are subject to the following restrictions:
      1. Consultants are prohibited from making any appearances on behalf of the Laboratory at a congressional office or federal agency, including military organizations, without a Laboratory employee present. The Office of Laboratory Counsel must approve in writing proposed exceptions to this requirement. Under no circumstances may a consultant be used to specifically aid in influencing or enacting legislation.
      2. Consultants are required to refrain from activities on behalf of the Laboratory and the Department of Energy (DOE) that could be interpreted as creating a conflict of interest for the consultant. Accordingly, Consultant Agreements and Personal Services Agreements (PSAs) impose certain conflict of interest requirements and restrictions on the consultants. There are also other organizational and personal conflict of interest restrictions see the Berkeley Lab Conflict of Interest webpage for additional information.
      3. Consultants are prohibited from performing follow-on work relating to the consultant's prior findings or recommendations under a Berkeley Lab Consultant Agreement or subcontract with advisory and assistance services tasks.
2. Selection
   1. Consultants are selected on the basis of professional qualifications, available resources, experience, cost, and ability to meet Laboratory needs, as determined by the division requiring the particular service and approved by Procurement. No agencies or other organizations will be paid a fee for locating a consultant.
3. Agreement Types/Duration of Agreement/Number of Service Days
   1. A Consultant Agreement is an agreement between the Laboratory and an individual with special knowledge or expertise for the performance of consultant services. This also applies when an individual establishes a company, but the individual is not an actual employee of the company (does not report salary or wages on a W-2 form).
   2. A Personal Services Agreement (PSA) is an agreement between the Laboratory and an established company, which makes available by name, or labor category, one or more of its employees as consultants. The company's employee must be an individual who receives a salary or wages from the company, which would be reported to the Internal Revenue Service on a W-2 form.
   3. Consultant Agreements / PSAs are established for a period for which there is a foreseeable need, normally for one year or less. Agreements may be written for a period of up to five years with appropriate justification from the requester to support the long-term need for the consultant's services. Agreements are renewed only when there is a verified continuing need.
   4. Consultant Agreements must specify the anticipated number of service days or hours per agreement year within the following parameters.
      
      1. A consultant may not be paid for more than 112 consultant service days, or 900 hours, in a 12-month agreement period without written approval from the Division Director or designee.
      2. When the need is expected to exceed these time limitations, regular part-time employment or contract labor should be considered and, if appropriate, arranged in accordance with existing employment practices.
      3. There are no restrictions on the number of service days or hours in the agreement period for PSAs.
4. Eligibility and Special Requirements
   1. Before entering into a Consultant Agreement or PSA, the division must ensure that the recipient is eligible to provide services to the Laboratory.
   2. Foreign Nationals
      1. Foreign nationals who are not permanent residents of the United States must have an appropriate visa and an Internal Revenue Service (IRS) Individual Taxpayer Identification Number (TIN) in order to provide compensated consultant services to the Laboratory. To determine whether a consultant may receive payments as a foreign national, the requestor should consult with the Laboratory's HR Shared Services, International Researchers and Scholars Office (IRSO) regarding the consultant's proposed services as early as possible. Individuals who are not U.S. citizens are subject to the DOE's policies for foreign visits and assignments and must be in compliance with those requirements prior to entering into an agreement with the Laboratory.
   3. Current UC Faculty and Staff as Consultants
      1. Current UC faculty may not be Laboratory consultants unless:
         1. The faculty member occupies a teaching or research position.
         2. Procurement has received adequate assurance that the expertise is not otherwise available at the Laboratory.
         3. Requirements of UC Academic Personnel Manual (APM) section 664 have been followed.
      2. Services performed by eligible current UC faculty would be processed as follows:
         1. An Intra-University Transaction (IUT) will be used if the Laboratory will be reimbursing a campus.
         2. A Consultant Agreement will be used if the Laboratory will be reimbursing the faculty member directly. The Laboratory Director or designee and the Chancellor of the UC faculty member's home campus must approve faculty consultant arrangements, and the compensation rate must be in accordance with the UC APM, generally on a UC form UPAY 644C-T.
      3. Current UC staff personnel normally may not be retained as consultants. The alternative to acquiring the services of UC staff personnel through an IUT should be considered and discussed with Procurement.
5. Non-Retired Former UC or Laboratory Employees
   1. The Laboratory may not subcontract for services with any former UC or Laboratory employee who had an employee-vendor relationship when the individual left UC or Berkeley Lab employment (see Definitions), including one who had teaching or research responsibilities, when:
      1. Less than two years' time has elapsed since the individual separated from UC or Laboratory employment, and, during the period of the individual's employment, the individual was engaged in any of the negotiations, transactions, planning, arrangements, or any part of the decision-making process relevant to the Consultant Agreement or PSA; or
      2. Less than one year's time has elapsed since the individual separated from UC or Laboratory employment, and the individual had been employed in a policy-making position in the same general subject area as the proposed agreement.
      3. Care must be taken to ensure that the selection of former employees as consultants to the Laboratory will best serve the Laboratory's interests.
6. Retired UC or Laboratory Faculty and Staff
   1. Laws and regulations affecting the UC Retirement Plan (UCRP) permit retired members to work at the Laboratory only under certain circumstances. The hiring division's HR contact must be consulted regarding the employment of retired faculty and staff (see the RPM Human Resources Section).
   2. A retiree cannot do work as a consultant that is the same or similar to work that is typically done by Berkeley Lab employees, or do work that is the same or similar to work the retired employee did while employed at the UC. When either of these situations might exist, the requester for such consulting services must work with his or her division HR contact to obtain Laboratory Legal Counsel's review and approval of the eligibility of the retiree for the specific required services prior to submitting the request to Procurement and to attach that approval to the Request for Consultant Services form discussed below in section D.4.
   3. Provided the requirements of paragraph a and b above are met, a retired employee may work as a consultant under a Consultant Agreement or PSA immediately after retiring or ending a rehired retiree employment position if:
      
      1. While serving as an employee, the retiree did not participate in any way in the making of the Consultant Agreement or PSA, including making arrangements or developing or finalizing the statement of work or negotiating agreement terms; and
      2. More than one year's time has elapsed since the individual separated from UC employment if the individual had been  employed in a policy-making position in the same general subject area and department as the proposed agreement.
   4. Retired UC or Lab employees cannot be hired through a temporary services agency as contract labor.
7. DOE Contractor Employees
   1. An employee of a DOE contractor performing work on a full- or part-time basis under a management and operating (M&O), facilities-management, site-integrating, or other major DOE contract may only provide consultant services to the Laboratory under the following circumstances:
      
      1. If the services are performed outside the official hours of duty, or
      2. While on leave from the DOE contractor.
   2. DOE contractor employee consultant services also must not:
      1. In any manner interfere with the proper and effective performance of the duties of the consultant's DOE contractor employee position. Normally, evidence of approval from the other DOE contractor should be obtained.
      2. Appear to create a conflict of interest; or
      3. Appear to subject the DOE, the UC, or the other DOE contractor to public criticism or embarrassment.
   3. An alternative to acquiring the consultant services from DOE contractor personnel is through a DOE Contractor Order with the other DOE contractor. This alternative should be discussed with Procurement.

D.2 Terms Governing Consultant Requirements

1. The following elements should be documented in the Consultant Agreement or /PSA.
   1. Time and Place of Performance
      1. Consultants may adopt working arrangements suitable to the consultant concerning performance details, such as times and places for rendering the agreed-upon services. These terms are subject to the Berkeley Lab Technical Representative's approval.
      2. If the consultant will need unescorted access to Berkeley Lab facilities or any access to Berkeley Lab information technology networks, an affiliate appointment through HR Shared Services is required. (For more information and to initiate an affiliate appointment, visit the Affiliates webpage.)
   2. Results of Performance
      1. Consultants may be required to furnish reports or other data documenting the services rendered, as requested by the technical representative and in accordance with the terms of the agreement. When this is impractical, the technical representative is expected to maintain adequate records of the services actually rendered by the consultant.
   3. Compensation
      1. Consultants and consulting firms are normally paid at agreed-upon, reasonable, fully burdened, hourly or daily rates for consultant services rendered. Consultants may also be reimbursed for certain costs and expenses, such as travel and clerical support, when the costs are:
         
         1. Included in the consultant's proposal;
         2. Approved by the technical representative; and
         3. Authorized by Procurement in the Consultant Agreement or PSA.
      2. All agreed-to rates and cost and expense reimbursements must be in accordance with the UC-DOE Prime Contract and federal cost principles.
      3. The reasonableness of a consultant's fee will be evaluated by the procurement specialists based on the individual's established or published rate and the market value of the consultant services to be provided. Fee rates based on actual salary, fringe benefits, and indirect expenses should be substantiated by (1) a copy of a current HR or payroll record, a letter of agreement with the employer, and support for fringe and indirect expense rates or (2) a comparison of fully burdened rates previously paid for similar consultant services. Fee rates based on contractual arrangements charged to a consultant's other clients may be substantiated by copies of client agreements or other suitable documentation, such as invoices.
      4. Consultant Agreements may be awarded by Procurement on a no-fee basis, allowing only for the reimbursement of actual direct expenses incurred, as discussed above. If no hourly or daily rate is paid for time expended, consultants may provide an unlimited number of days or hours per agreement year.
   4. Taxes
      1. Consulting fees paid are generally subject to federal and state income tax reporting. Consultants working under a Consultant Agreement will be required to provide a completed IRS form W-9 before beginning work. The Laboratory Accounts Payable department will issue an appropriate tax form 1099 covering total fees paid during each calendar year to individual consultants providing services under a Consultant Agreement.
   5. Property
      1. Acquisition of property at Laboratory expense, including controlled property, or use of government-furnished property by a consultant generally is not allowed. Deviating from this restriction requires a memorandum from the requester substantiating the necessity for such action, approval by Procurement, and inclusion of appropriate property provisions in the Consultant Agreement or PSA.
   6. Travel
      1. When travel is included in the approved agreement costs, consultants are reimbursed for travel and travel-related expenses in accordance with the Laboratory's Subcontractor Guide to Reimbursable Travel Expenses document if incorporated in the agreement. Foreign travel requires advance DOE approval.
      2. Only travel expenses for travel required in performance of the consultant services are reimbursable. Expenses for local commuting to and from the Laboratory and the consultant's place of business or residence normally are not reimbursable.
   7. Conduct of Consultant
      1. UC and government policies form the basis for rules of conduct to which consultants agree to be bound through the agreements for consultant services. These rules specifically prohibit the following:
         1. Accepting any gratuity or special favor from individuals or organizations with whom the Laboratory is doing business, or proposes to do business, under circumstances that might reasonably be interpreted as an attempt to influence the consultant in accomplishing the agreed-upon work.
         2. Using for personal gain or making other improper use of privileged information acquired in connection with the consultant's work for the Laboratory. The term "privileged information" includes, but is not limited to, unpublished information relating to technological and scientific developments; anticipated materials requirements or pricing actions; possible new sites for DOE program operations; knowledge of selection of entities for performing work for the Laboratory in advance of official announcement; and medical, personnel, or security records of individuals.
         3. Making or influencing any decision on behalf of the Laboratory that directly or indirectly affects the interest of the Laboratory or the DOE if the consultant's personal concern in the matter may be incompatible with the interest of the Laboratory or the DOE.
         4. Using the name of the UC, the Laboratory, or the DOE in any publications, news releases, advertising, speeches, technical papers, photographs, and other releases of information regarding the consultant's work for the Laboratory, except with prior written approval of the Laboratory Chief Communications Officer.
      2. Laboratory technical/division representatives 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.
   8. Patents, Data, and Copyrights
      1. Under the UC-DOE Prime Contract, the Laboratory is required to protect the DOE's interests in inventions and technical data by including the appropriate clauses in its Consultant Agreements and PSAs. These clauses concern such matters as patent rights; rights to data, including copyrights; and patent and copyright infringement.
      2. Laboratory technical representatives 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 fulfilled. If the consultant does not meet these obligations, the technical representative is expected to notify Procurement immediately so that appropriate and timely action may be taken (see the Intellectual Property policies).
   9. Subcontracts and Assignment
      1. Consultants must secure prior written approval from the Laboratory to subcontract with, assign to, or otherwise employ anyone to perform any of the consultant services, except incidental clerical or similar support work specified in the agreement with the Laboratory. Procurement will document this approval in the Consultant Agreement or PSA or a modification to the agreement.
   10. Environment, Safety, and Health Requirements
       1. Agreements for consultant services specify that consultants are required to take all reasonable precautions at Laboratory sites to protect the environment, safety, and health of employees and members of the public in the performance of the work; minimize danger from all hazards to life and property; and comply with all applicable environmental, safety, fire protection, and health regulations and requirements of the Laboratory and DOE. The Laboratory may stop the particular work any time a consultant fails to comply.
   11. Insurance and Indemnification
       1. Normally, consultants are required to maintain automobile insurance. Depending on the scope of the work to be performed consultants may be granted an exception to some or all of the insurance requirements. Such exceptions must be approved by the Laboratory Counsel. Consultants are required indemnify the UC from liability for injury or damages related to the consultant services. The Laboratory requires a consultant to maintain liability insurance if:
          1. The services are performed on Laboratory, government, or third-party premises;
          2. Government-furnished property is provided to a consultant or a consultant's employer; or
          3. The nature of the services poses a significant potential risk to the UC and the government.
       2. No consultant may be indemnified unless prior approval is obtained from the DOE. Procurement will consult with Laboratory Counsel on any request by a consultant for indemnification.

D.3 Procedures for Securing Consultant Services

1. Request to Establish an Agreement
   1. Requests for consultant services are initiated by the division (requester). The request may be for a new agreement, the renewal of an existing Consultant Agreement, additional service days, or other changes to an existing agreement, including one already in place for another Laboratory organization. Requests for services of a consultant should be submitted using the Request for Consultant Services form, available from the Procurement website, and be accompanied by information identified on the request form.
   2. The completed request form must be sent to Procurement with an approved e Procurement (ePro) purchase requisition for processing. If the package is not complete or the information is inadequate, the request package may be returned to the requester with an explanation of the reasons and requesting the additional information.
   3. In addition, an Organizational Conflict of Interest (OCI) Pre-Procurement Fact Sheet must be completed and accompany each request greater than $250,000. This fact sheet is available on the Procurement website. If there appears to be a reasonable possibility that an OCI may exist or arise, steps must be taken to avoid or neutralize it. If the OCI can only be mitigated, an award may not be made until Procurement obtains DOE approval of the mitigation plan.
2. Solicitations and Proposals
   1. Formal, written solicitations for Consultant Agreements or PSAs normally are not required, and written proposals are not required for Consultant Agreements or PSAs under the small-purchase threshold (currently $150,000).
3. Negotiating the Agreement
   1. Only Procurement may negotiate the terms and conditions of the agreement and issue 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, expenses to be reimbursed, and other appropriate details, as discussed in above paragraphs.
   2. Procurement must ensure that:
      1. The consultant's obligations and the role of the technical representative relative to these obligations are clearly stated in the Consultant Agreement or PSA;
      2. The consultant and the technical representative understand that any changes in services or other terms of the agreement will be recognized by the Laboratory only if authorized in writing by Procurement; and
      3. Both the consultant and technical representative are cautioned not to incur any costs until the agreement has been fully executed. These may be considered an unauthorized commitment if services are rendered before an agreement is executed by the procurement specialist.
4. Securing Approvals
   1. The UC-DOE Prime Contract establishes the DOE's right to approve or disapprove all Laboratory subcontracts, including Consultant Agreements and PSAs, as well as specific aspects of subcontracts and agreements. DOE approval, prior to awarding a Consultant Agreement, is required for the following:
      1. An organizational conflict of interest mitigation plan; and
      2. All foreign travel in conjunction with the consultant services, whether charged directly to Berkeley Lab, under the agreement.
5. Initiating Consultant Services
   1. The technical representative normally contacts the consultant to arrange for the start of consultant services. Performance must not begin until the agreement has been executed. If the consultant requires access to the Laboratory premises or systems, the technical representative must initiate an affiliate appointment through Human Resources (HR). HR Shared Services will assist with processing the appointment and ensuring that the consultant receives an ID badge on his or her arrival date. For more information, visit the Affiliates webpage.
6. Attendance at Off-Site Conferences
   1. 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 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.
7. Consultant Invoices for Consultant Services
   1. Invoices for consultant services are submitted with all contractually required supporting documentation to the Accounts Payable Office via e-mail at APInvoice@lbl.gov. The designated Invoice Certifier is required to certify that services were satisfactorily performed per the agreement requirements and that the invoice adheres to the terms of the agreement. This may require the certifier to consult with the technical representative and/or requester.
8. Agreement Period and Renewal or Extension
   1. Most Consultant Agreements and PSAs have a term of one year or less. Renewal of an agreement may be appropriate if consultant services are needed for longer periods, but in no event may a Consultant Agreement or PSA exceed five years. Agreements that are not renewed simply expire without further obligation.
   2. The Laboratory's Financial Management System sends Consultant Agreement/PSA expiration notices to the technical representative in advance of the end/expiration date. Agreement extension or renewal is accomplished through a modification to the agreement using the same process as described above for initially requesting consultant services.
9. Personal Services Agreements
   1. PSAs are treated in essentially the same manner as Consultant Agreements for consultant services, except as follows:
      1. Solicitations are sent, and agreements awarded, to the consultant's employing organization rather than the individual consultant.
      2. Payments are made to the organization instead of the individual consultant.
      3. The consultant's employing organization is responsible for all tax reporting.

E. Roles and Responsibilities

F. Definitions/Acronyms

G. Recordkeeping Requirements

None

H. Implementing Documents

I. Contact Information

Chief Procurement Officer

J. Revision History

DOCUMENT INFORMATION

Source Requirements Documents

• Laboratory Procurement Standard Practices Manual, Standard Practice 37.1, Consultants and Personal Services

Implementing Documents

Other References

• Intellectual Property (Patents) Policies