DoD takes steps to protect contractor identities in Afghanistan

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A memo from the Defense Department late last week seemed to point to continuing contractor work in Afghanistan. But it instructs contractors to do something strange when it comes to putting information into the Federal Procurement Data System. For details and what it all might mean, the president and CEO of the Professional Services Council, David Berteau, joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: David, this memo is aimed at the department heads in defense department, not at the contracting community. But tell us what you read into this.

David Berteau: Right, Tom. So last Friday, September 17, DoD issued and made public an internal memo stating that for contracts with Afghanistan as the place or performance, or for a contractor located in Afghanistan, either of those, although both could apply, contracting officers would use a, quote, generic place of performance, when they enter the contract into the Federal Procurement Data System, and also into the award notices in SAM.gov, that’s the System for Award Management. A pre-award notices like solicitations could still specify Afghanistan as a place to performance. And of course, we don’t really know how widespread this will be, because contracts are still being considered and solicited and evaluated. But it indicates that the Department of Defense at least anticipates a continuation of contracts support for various purposes and reasons where Afghanistan will be the place of performance. This is highly unusual to issue guidance that says use a generic place of performance. And of course, one of the questions I have as a robust user of the Federal Procurement Data System is if I search for generic places of performance, will I capture only Afghanistan contracts or are there other places where generic place performance? And I know the answer to that question, but typically, those are contracts that are not entered into the federal government data system in the first place. So we’re going to continue looking at this on behalf of our member companies.

Tom Temin: They could be occurring in lots of dangerous places like Montana to for all we know.

David Berteau: Well, it is true that that our member companies are supporting deployed forces all around the world in a lot of hotspots. And I think it’s actually a positive thing that DoD is taking care to consider their safety as they perform on those contracts.

Tom Temin: Well, notwithstanding that it’s hard to imagine how contractors could operate at this point in Afghanistan, given the situation there. This memo, my reading of it seems to imply that it’s for security reasons, so that someone can’t somehow – that you can’t find out who it is and where they are working, what the companies are, and so forth, because that information could fall into the wrong hands and put people in danger. Is that your sense of why they’re doing this?

David Berteau: That’s certainly a major motivation. And we applaud that. We think that taking care of the health and safety of the workers that are working in these dangerous places around the world is a useful thing to do.

Tom Temin: Do we have any sense of what kind of work is still possible, since the contractors that worked for us interests that are in Afghanistan are scrambling to get out of there if they still possibly can? And there’s no Americans to speak of, number wise, there are Americans still there left.

David Berteau: We know what could they be talking about from our member companies that support humanitarian efforts under the US Agency for International Development, for instance, they still have thousands of identified former workers or current workers, who they were still paying up until, you actually continue work on a contract until you get a stop work order. And because contractors are obligated to continue to perform to the best of their ability, even under the circumstances. And we’ve seen that the US does want to continue to support humanitarian efforts in Afghanistan, for health and education and human welfare. The Treasury Department has issued a guidance that says it’s okay, you can continue doing that without violating sanctions, etc. So we’ll have to see how this evolves and plays out as the days and weeks go by.

Tom Temin: Have you heard from any member companies that have worked there as to the state of it, and whether it’s continuing,

David Berteau: We hear from our members all the time, we have regular calls with the agencies, both the DoD and with the US Agency for International Development. And we monitor that very, very closely. Obviously, we’re not involved in the operational details. And in many cases, those are things we wouldn’t talk about publicly. But there’s a lot of questions still being raised and answered. So it’s still evolving. And obviously, our members want to support the government as best they can in whatever missions go forward.

Tom Temin: Probably varies if someone’s building, say infrastructure types of projects in Afghanistan, well even the Taliban would like to have a good sewer and pipeline for water system. On the other hand, if they’re building the ability to teach algebra to women, then probably that would not continue under the Taliban.

David Berteau: Certainly if you believe the news reports, your logic makes sense there and we’ll see how it plays out.

Tom Temin: We’re speaking with David Berteau, president and CEO of the Professional Services Council. And domestically, the situation still seems to be muddied in terms of what contractors are supposed to do with respect to COVID vaccination, attestation working in federal offices. What is the latest as we head into almost the end of the fiscal year?

David Berteau: It’s almost the end of the fiscal year. And we’ll touch on that a little bit here as well. So that the big questions that there’s a few calendar dates ahead of us with respect to vaccine mandate for contractors. And I would continue to note that the executive order 14042 that was signed on September 9, doesn’t act that one that covers contractors zero to one covers federal civilian employees, one covers contractors, one covering contractors focuses on health and safety protocols, and doesn’t actually include the word vaccine or vaccination in the executive order. Where we’ll see those words come into play is three, three data points. One is this Friday, September 24, is the due date for the guidance from the Safer Federal Workforce Task Force. And that guidance would then be the basis of what we would expect to be class deviation memos issued out of the procurement community, probably the civilian agency council for civilian agencies, and the DAR Council, the Defense Acquisition Regulation Council for DoD, possibly others for other procurement rules, etc. That’s due October 8. And that would be Friday, two weeks after the guidance comes out. And then those those class deviation requirements would presumably be contract revisions that would apply starting October 15. Tom, you’ve been around this a while. That’s a very ambitious schedule to write guidance, turn it into class deviation memos, create contract language, and begin incorporating it into solicitations and awards as part of that process, especially with some big unanswered questions, the biggest of which is who’s covered and who will be exempt?

Tom Temin: Well, would this be formal rulemaking in the sense that you would have to get industry input? Or is this more policy development? That’s not really official rulemaking under the Administrative Procedures Act?

David Berteau: Well, PSC has submitted a host of questions to the Office of Management Budget that we think should be considered and in many cases addressed. And we’ve made recommendations on many of these as part of that process. But the process of issuing a class deviation does not provide input opportunity for input from the public or the affected activities. Class deviations can be issued. Of course, they can also be modified based on evolving circumstances. But we’re taking advantage of the willingness of the government to receive input from us, but there’s no formal process to do so. And the timeline, of course, would be very compressed if the government were going to try to do that. I think from PSC’s point of view, there are three principles that we’re following here. And I’ll articulate those if you’ll give me a minute on that.

Tom Temin: Sure. I was gonna ask you what is the ideal situation from the standpoint of PSC and the types of contractors you represent?

David Berteau: So we certainly think that vaccinations are part of the the panoply of activities that we can undertake to beat the COVID-19, coupled with obviously testing and masking and proper distancing where appropriate- but also the evolution of treatments and care facilities. And those are all covered in the president’s six point plan, but don’t necessarily tie into the questions of contractors. With respect to the contracts, we think three things are really important here. One is equal treatment of as much of the workforce as possible, both federal civilians and onsite contract workers, because this helps people work together by having consistent similar rules and procedures. If you’ve got parts of your workforce that are subject to different rules and procedures, than the other part, that doesn’t create the kind of collaboration that we need to have to make the government work. The second is to set rules and procedures that actually help companies recruit and train and promote and retain the workforce. We’re in a very tight competitive environment for workers. And anything that drives people away will in fact diminish company’s abilities, not only to perform on their existing contracts, but to bid and win new contracts. And then third, we want to maintain a level playing field for those companies that are bidding and winning and performing contracts. We don’t want to penalize companies that have a mandate, as opposed to those that are exempt from a mandate which we could then have potentially a greater ability to bid and win contracts. So those are the principles we’re trying to apply to all the questions that arise. I would also note that there’s been a popular view that this mandate replaces the attest and test program that was dealt before. We think there’s still going to be a testing program because there are a number of people who will legitimately get a waiver from the vaccination requirement for either health or religious reasons. And regardless of what that number is, it makes sense to test those people as you go forward. So those are among the questions that still very much need to be answered here.

Tom Temin: Well, one way or another, we’ll know soon into the next month. We’re speaking with David Berteau, president and CEO of the Professional Services Council. And of course, the next month does bring the new fiscal year. And that is equally cloudy on what Congress will actually do. Depending on who you talk to, some people say no, there’ll be a CR and it’s already in the works. And there is a CR bill, somewhere floating around, that’s not enacted yet. But then there’s also the possibility of the good old fashioned shutdown.

David Berteau: Thursday night, midnight, a week from this Thursday, is the end of the fiscal year. And unless there is appropriations provided under a continuing resolution, or otherwise, there’ll be a lapse in appropriations, and we will have a government shutdown. And we’re doing everything we can to help prevent that. But for PSC, our member companies, we do a webinar, in fact we’ve got a webinar scheduled for 11 o’clock today for our member companies to go through, how do you prepare for the possibility of a shutdown? How do you prepare for a continuing resolution? Which has its own quirks in the contracting. And how do you communicate with your government agency customers, as they’re getting ready for this? Because you’ve already seen Tom, the idea that a week from now is a long ways away is only true in the imaginations of the legislators who think they have to figure out what to do with this. I don’t know where this is going to end up, the chances of a shutdown are not zero, and the consequences would be quite serious. And so we work hard to prepare our member companies to get ready for this.

Tom Temin: And the single most important thing a contractor should do is?

David Berteau: while the most important thing to do is to talk to your customers, your agency customers who will frequently, as the government likes to pretend this is not going to happen until the last minute, they will need to be thinking about how they prepare for it. You need to get your invoices updated and submitted, you need to find out who you’re going to be able to get in touch with in case you have an option that needs to be exercised in the middle of the shutdown. You remember the last one lasted for 35 days. And that’s a long time and there were deliverables that had to be received and nobody to receive them. There were options to be exercised and nobody with the authority to exercise them. These are the kinds of communications that member companies need to have and all companies need to have with their government customers.

Tom Temin: All those COVID nose swabs could be stuck in the mailroom for a long time. David Berteau is president and CEO of the Professional Services Council. Thanks so much.

David Berteau: Thank you, Tom. And next time we talk we’ll know whether or not we had a shutdown.

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