AO 2008-11: Federal contractor may not make contributions

An individual who serves as a personal services contractor with the United States Agency for International Development (USAID) is considered a federal contractor under the Federal Election Campaign Act (the Act). As such, he is prohibited from making contributions for any political purpose.

Background

Mr. Lawrence Brown entered into a personal services contract with USAID in his individual capacity. The contract began in 2006 and is scheduled to end in September 2010. Under the contract, Mr. Brown is a senior Human Resources advisor for the USAID Bureau of Global Health, Office of Professional Development and Management Support. Payment for Mr. Brown’s services under the contract is made from funds appropriated by Congress.

Analysis

The Act and Commission regulations prohibit federal government contractors from making contributions to any party, committee or candidate for federal office or to any person for any political purpose or use. 11 CFR 115.2. Specifically, the Act prohibits contributions by any person who enters into a contract with any department or agency of the United States for the rendition of personal services if the payment for the performance of the contract is to be made in whole or in part from funds appropriated by Congress. 2 U.S.C. §441c(a).

Under government contract law, while the government is normally required to obtain its employees by direct hire under competitive appointment, it may obtain personal services by contract where "Congress has specifically authorized acquisition of the services by contract." 48 CFR 37.104(a).

Since Mr. Brown has entered into a written contract with USAID in his individual capacity and is paid with funds appropriated by Congress, he is considered a federal contractor under the Act and Commission regulations. As a federal contractor, he is prohibited from making contributions for any political purpose from either his business or personal funds. 2 U.S.C. §441c(a)(1); 11 CFR 115.2(a), 115.5.

AO 2008-11: Date Issued: October 14, 2008; length: 4 pages.