OMB’s new coronavirus contractor guidance doesn’t answer some of the toughest questions

The White House is finally giving agencies and contractors some guidance around the role vendors will continue to play in helping the government meet its mission, and stop and recover from the spread of the coronavirus. But there is a lot that still remains unclear.

And as New York, California and other states move to full lock-down mode for their residents, the question that needs to be answered sooner than later is are contractors considered essential workers and what should they do if they can’t telework?

The Office of Management and Budget released a new memo late on March 20 urging agencies to let their contractor workforce telework and be flexible with deliverables. But the administration offered no guidance on whether contractors are considered essential workers.

“Agencies should take into consideration whether it is beneficial to keep skilled professionals or key personnel in a mobile ready state for activities the agency deems critical to national security or other high priorities,” wrote Margaret Weichert, the deputy director for management at OMB. “Additionally, agencies should also consider whether contracts that possess capabilities for addressing impending requirements such as security, logistics, or other function, may be retooled for pandemic response consistent with the scope of the contract.”

OMB also provided 12 frequently asked questions (FAQs) along with the memo, which it presented to industry associations on March 19 during a teleconference.

Vendor sources say the details were less than satisfying as they didn’t address many of the outstanding issues such as teleworking and essential personnel.

For instance around teleworking, while some lawmakers and associations are calling for OMB to mandate it for all contractors, the administration only goes as far as saying they “strongly encourage” remote working and agencies should change contracts that don’t specifically allow for teleworking.

“If a contract does not lend itself to telework, for example, because it must be performed at a government facility, agencies should consider being flexible on delivery schedule contract completion dates,” the memo states.

Read more: Contracting News

Roger Waldron, the president of the Coalition for Government Procurement, an industry association, said in an email to Federal News Network that contractors need to keep in mind that security remains among the most important concepts when it comes to teleworking.

“In this regard, some of the concerns raised in connection with Section 889 [prohibition against certain Chinese made telecommunications products] come up,” he said. “Do vendor or government employees have to be concerned about the security of home networks? Are the computers being used secure? This emergency brings to the fore the need to address the breadth of Section 889 in the short run as the government and vendors change their supply chains and make them more secure.”

DOJ memo on state shutdowns for feds only

The administration also missed a chance to offer more clarity to the role of contractors in a Justice Department March 20 memo to U.S. attorney generals.

In that guidance, Justice directed U.S. attorneys to tell state and local law enforcement authorities who are enforcing statewide shutdowns to let federal employees performing critical work get to their job sites. The memo, however, doesn’t address contractor workforce.

The memo states that if federal employee are traveling for work and local law enforcement stops them, the employee should show their personal identity verification (PIV) card and explain their reason for travel.

The Defense Department on March 20 tried to shed a little light on the question of contractors being essential personnel with a new memo putting some more specifics about what it means to be an essential worker.

“The essential critical infrastructure workforce for the defense industrial base (DIB) includes workers who support the essential products and services required to meet national security commitments to the federal government and the U.S. military,” wrote Ellen Lord, DoD’s undersecretary of Defense for Acquisition and Sustainment, in the memo. “Companies aligned with the essential critical infrastructure workforce definition are expected to maintain their normal work schedules.”

Read more: Defense News

Lord said these jobs include aerospace, mechanical and software engineers, manufacturing and production workers, IT support and security personnel, intelligence support, aircraft and weapons systems mechanics and maintainers, suppliers of medical supplies and pharmaceuticals and critical transportation.

She added this list flows down to prime and subcontractors, who also support the development, production, testing fielding and sustainment of weapons systems and software systems and infrastructure to support those activities.

Lord also detailed the type of workers who aren’t considered essential. These include vendors performing such tasks as providing office supplies, recreational support or lawn care.

DLA to survey vendors

The DoD memo comes a day after the Department of Homeland Security sent out recommendations to all 16 critical infrastructure sectors, which the DIB has been recognized as one for several years. Lord just reiterated what DHS said in its guidance in terms of what are considered essential positions.

“The list can also inform critical infrastructure community decision-making to determine the sectors, sub-sectors, segments, or critical functions that should continue normal operations, appropriately modified to account for Centers for Disease Control (CDC) workforce and customer protection guidance,” wrote Chris Krebs, the director of DHS’s Cybersecurity and Infrastructure Security Agency in the guidance.

Industry experts say the challenge with both DHS and DoD’s guidance is they leave too much ambiguity for vendors. If a state shuts down, there is no guidance from the federal government as to whether these workers should report to their jobs.

Krebs said in his guidance that the ultimate authority is with the state and local governments.

That leaves more questions than answers for the vendor workforce.

Several agencies are trying to fill the void with memos to their specific contractor workforces.

FEMA released a memo to contractors on March 19 providing some basic guidance about how to stay safe and reminding vendors that there is “NO requirement to stop, delay or terminate a contract during the time coronavirus is present.  Contractors should ensure there are measures in place to ensure continuity of operations and delivery of services.”

“In the event of notification of coronavirus in the workplace, early communication between the contractor, contracting officers and contracting officer representative (COR) is essential,” the notice stated. “The contractor should have established preparation plans for such situations to ensure there is minimal impact to contract performance.”

The Defense Logistics Agency plans to release a request for information to its suppliers on March 23 to assess their status.

In the meantime, DLA offered a few best practices to its suppliers like using email communications and providing thorough supporting documentation to support an excusable delay. And it included mitigation efforts to overcome disruptions in the supplier’s supply chain.

Reasonable effort to keep on schedule

The OMB guidance also provided contracting officers some advice and best practices to consider.

For instance, OMB said construction on a closed building could continue on a case-by-case basis based on currently health and safety guidance.

Read more: Workforce News

Waldron said agencies need to communicate with contractors about how to maintain the continuity of operations and vendors need to ask about the strategy to keep projects moving forward.

“Part of that thinking needs to be how changes will be accommodated and a consistent practice for permitting equitable adjustments to compensate contractors fully for such changes. This will assure uninterrupted performance,” he said. “Contractors and agencies need to recognize the demographics of their employees and be sensitive to their status and needs. Be supportive as they are addressing changes circumstances, as well, including caring for others, like vulnerable people in their home or children that are out of school.”

In the memo, OMB addressed the idea of equitable adjustments, saying on a case-by-case basis agencies should decide what is a reasonable effort to keep the contract work on schedule.

“Agencies may take into consideration whether it is beneficial to keep skilled professionals or key personnel in a mobile ready state for activities the agency deems critical to national security or other high priorities (e.g. , national security professionals, skilled scientists),” the memo states. “Agencies should also consider whether contracts that possess capabilities for addressing impending requirements such as security, logistics, or other function may be retooled for pandemic response consistent with the scope of the contract. A number of contract clauses may be helpful in managing COVID-19 issues as they arise.”

For ongoing acquisition activities or industry days, “agencies should consider virtual activities, such as online industry conferences, video proposals, and other innovative steps in planning their acquisitions,” the memo stated.

The one thing OMB did make a definitive decision on is extending any company’s registration that needed to be renewed before May 17 in the System for Award Management (SAM) portal for an extra 60 days.