Acquisition

Contractors still waiting on consistent pandemic guidance

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Lawmakers want the Office of Management and Budget and the Office of Personnel Management to require federal agencies to publicly post their contingency plans for so everyone has a better idea of what to expect as more federal employees move to telework and other alternative operations.

Some agencies posted some contractor-specific contingency guidance in the last few days ahead of the March 19 letter from Senate lawmakers, but federal contractors FCW has spoken with in the last few days said official agency advice for contractors is scarce.

The Environmental Protection Agency and the U.S. Agency for International Development rolled out guidance for their contractors at the end of last week, telling them to keep in close contact with their agency contracting officers, as well as check their contracts' language for information on how to move ahead.

In a March 19 letter to the acting directors of OMB and OPM, Sen. Mark R. Warner (D-Va.) and seven other senators called on those agencies to require all federal agencies to post their contingency plans for COVID-19 outbreaks, so the public knows what services to expect and federal contractors have some guidance on how to comply with their contracts.

"Making these [contingency] plans transparent and readily available is key to ensuring that our constituents understand what services are continuing in the midst of the uncertainty and disruption caused by COVID-19. It is also important for federal employees and contractors to understand and properly implement the required mitigation measures and for policymakers to ensure compliance with these measures," said the letter.

The letter said posting the plans was in line with the way the government handles the plans during a non-Coronavirus related government shutdown.

Contractor telework

The Professional Services Council urged Russell Vought, acting OMB director, to extend telework to the contractor workforce where possible.

Many contractors are being sent and home told that "telework is not authorized under the contract," PSC President and CEO David Berteau wrote in a March 18 letter to Vought.

"Sending contractors home without authorizing telework effectively ends the important work being done for the government by those contractors," Berteau wrote. He said the lack of guidance also undermines the intent of the President when OMB told federal agencies to allow government workers the "maximum telework flexibilities."

Additionally, the National Defense Industrial Association, the U.S. Chamber of Congress, PSC and other trade groups are urging Congress to include contractor telework and assistance for contractors who can't work because of closed federal facilities in coming pandemic relief legislation.

Excusable delays

EPA and USAID rolled out guidance for their contractors on March 13 and March 12 respectively, telling the businesses to keep in close contact with their agency contracting officers, as well as check their contracts' language for information on how to move ahead.

USAID told contractors in its notice that contractors shouldn't begin any new work or change work plans without getting written approvals from agency contracting officers and managers.

It told contractors not to begin any new work or change approved work plans.

The agency also said it is considering setting up an expedited procedures package for disease emergency response.

USAID contracting officers, said the agency, will get in touch with contractors if it needs to redirect resources. It said it said it would consider additional contract implementation expenses due to the virus on a "case-by-case basis."

USAID advised contractors with workers infected by the virus and temporarily unable to work to "continue to incur operating costs--to be able to restart activities immediately if circumstances or instructions change."

On March 13, the EPA posted a Coronavirus FAQ for small businesses that answered some basic questions about how they should proceed. The guidance advised contractors to review their contracts to see how, and if, those documents offer any latitude for delays. It advised small business contract holders to look to the Federal Acquisition Regulation for further information on how federal contract performance is handled under extreme circumstances, including pandemics. It warned that "force majeure" clauses common in the language of many commercial contracts, are not the same under the FAR.

Contractors that have "Excusable Delays" provisions in their contracts that cover contingencies including epidemics.

EPA advised contractors to consult with customer agencies closely on whether specific federal workers or sites would be available or open for work. It said contractors might also get wind-down and startup costs covered if work can't be done because of absent workers or closed sites.

Washington Technology editor-in-chief Nick Wakeman contributed to this article.

About the Author

Mark Rockwell is a senior staff writer at FCW, whose beat focuses on acquisition, the Department of Homeland Security and the Department of Energy.

Before joining FCW, Rockwell was Washington correspondent for Government Security News, where he covered all aspects of homeland security from IT to detection dogs and border security. Over the last 25 years in Washington as a reporter, editor and correspondent, he has covered an increasingly wide array of high-tech issues for publications like Communications Week, Internet Week, Fiber Optics News, tele.com magazine and Wireless Week.

Rockwell received a Jesse H. Neal Award for his work covering telecommunications issues, and is a graduate of James Madison University.

Click here for previous articles by Rockwell. Contact him at [email protected] or follow him on Twitter at @MRockwell4.


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