Tag Archives: government contracting

DOD’s Telework Surge Could Be Permanent

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A new emphasis on telework at the Defense Department in response to the COVID-19 pandemic could change work culture at the Pentagon, officials said.

DOD rolled out the CVR or Commercial Virtual Remote environment to handle the deluge of teleworkers March 27.


“It now has 900,000 user accounts with 250,000 added in a single day, officials said at an April 13 briefing. CVR is a collaboration suite based on Microsoft Teams that enables video, voice and text communications.

“The department has always been telework-ready long before the pandemic,” DOD CIO Dana Deasy said, but noted full-time telework was the exception and not the rule, so that a lot of education about tools and best practices was needed.

“There will be some permanency to what we have here. Specifically, I think more on the network side, and we will also have to create a base of teleworking equipment that we’ll be able to, in some cases, reuse for other purposes,” Deasy said. “There is going to be an enhanced teleworking capability that will be sustained at the end of COVID-19,” he added.

About 2,000 DOD personnel have gotten additional devices, officials said, with virtual internet service provider connections increasing 30%. Call capacity in the Pentagon has increased 50% and the Defense Information Systems Agency has increased end point capability three-fold.

The Navy’s telework capacity has exploded with 65,000 new telework users on mobile and desktops. The Navy’s telework capacity grew 150% to 250,000 workers due to COVID-19 measures, and there are additional plans to bring the total to 500,000 remote workers. The Marines increased their virtual private network capacity to 60,000 simultaneous workers, up about 80%.

This activity is creating a surge of data, and it’s still unclear what happens to CVR information after the crisis.

“We recognize that a lot of data is being created, it’s going onto an unclassified environment,” DOD CIO Dana Deasy said, in response to a question about how CVR data will be treated after the COVID-19 crisis is over. “We are looking at options on how do we take this data and preserve it and-or port it into other collaboration environments, going forward. That decision has not been taken, but I would also not pre-conclude that we’ve taken the decision the data will just be flat-out destroyed.”

Cybersecurity concerns, and the increased data risk, have risen in tandem with teleworking and is compounded by DOD not implementing all of its cyber hygiene initiatives.

Air Force Lt. Gen. Bradford Shwedo, Joint Staff CIO, said DOD has seen a “surge of spearphishing related to COVID-19” across the organization.

Essye Miller, DOD’s principal deputy CIO, first noted the uptick in cyberattacks in March when the department began encouraging mass telework, discouraging personnel from using streaming services on DOD’s network and encouraging better cyber hygiene practices.

A Government Accountability Office report released April 13 found that DOD has fallen short when it comes implementing proper cyber hygiene methods across the organization.

The GAO said DOD had not fully implemented cyber training briefings for DOD leadership or developed educational and training requirements for cyber workers. Additionally, a component of Cyber Command charged with network operations, the Joint Force Headquarters Department of Defense Information Network, hadn’t developed a plan for scheduled and unannounced cybersecurity inspections, according to the report.

In a letter responding to the report, Deasy said DOD would combine existing scorecards to improve data needed for senior leadership’s decision making, but that it was not possible to eliminate risk.

“Risk is a function of multiple variables and these variables are continually evolving,” Deasy wrote to GAO. “Timely, relevant, and correlated information is the best that can be expected.”


GSA Speeds Payments To Small Business Contractors

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The General Services Administration wants to keep money flowing to its small businesses contractors and subcontractors, reducing payment waits to 15 days.


“In an April 10 memo, Jeffrey Koses, GSA’s senior procurement executive in the agency’s Office of Acquisition Policy, said the agency was allowing GSA’s contracting personnel to deviate from federal rules to speed payments to its small business prime contractors and prime contractors’ small business subcontractors within 15 days, instead of the usual 30. The change, said Koses, applies to all contracts and orders where GSA is the only agency making payments. It does not apply to federal supply schedule contracts or multi-agency contracts, he said.

Under the change, federal contracting officials can insert language into contracts and solicitations allowing the accelerated payments. The change sets a goal of 15 days after receiving an invoice from a small business contractor, or a prime contractor with small business subcontractors, according to the memo.

The move, said Larry Allen, managing director of the Federal Market Access Group at BDO USA, is GSA’s recognition of the new, remote, less centralized work environment and the logistics involved. In a more diffuse working environment, payments can tend to take longer, he said.

“Small businesses live and die on cash flow,” he said. If payments are delayed, they can suffer or even sink, he said.

The rule probably doesn’t to short term, one-time contracts, however, explained Allen. “It doesn’t impact contracts such as a one-time order and shipment of 1,000 laptops,” he said. “It does apply to multi-year agreements that might ship 1,000 laptops per quarter” over a longer term.”


Government Contracting’s “New Business As Usual”

Image: Bret C. Cohen – Linked IN


Get a glimpse at how the business of government contracting has shifted to a different pace and cadence amid the COVID-19 pandemic in this episode with Amber Hart and Lisa Shea Mundt, the founders in charge at market intelligence firm The Pulse of GovCon.


“With some exceptions, much of the world has shifted to a largely stay-at-home setup that is causing both government contractors and their agency customers to think and collaborate in different ways with much of their personnel working remotely. With their business development and proposal consultant hats on, Hart and Mundt share insights into how GovCon firms and agencies have made that shift and what that looks like now in terms of daily operations.

Hart and Mundt also have their eyes on where federal dollars are going as part of the overall COVID-19 response and have important words of wisdom every business should take heed of before looking to position for that funding.”


Senate Seeks Industry’s Help With Internal Cyber Threats

The Senate sergeant-at-arms is looking to industry for help with cybersecurity. (J. David Ake/AP)


The Senate’s sergeant-at-arms is seeking industry assistance with insider-threat and privacy assessments for Senate networks, according to an April 6 solicitation.


“The SAA wants a vendor to evaluate two aspects of insider threat prevention efforts: SAA’s protection of Senate data, which can include personally identifiable information or health data; and assessment of the SAA cybersecurity department’s procedures to ensure SAA’s data protection efforts can be audited.

“The assessment will also include evaluation and detection of anomalous user behavior that may represent abuse of their administrative privileges,” the solicitation read.

According to the solicitation, the sergeant-at-arms also wants the vendor to help with the Senate’s ability to hunt threats on its networks. The office is looking for a vendor who can “conduct a comprehensive evaluation of network and systems resources for evidence of unwanted activity and cyber-threat actor persistence,” the solicitation said.

The Office of the Sergeant at Arms also expects the vendor to perform a cybersecurity resiliency test that focuses on “resiliency to effectively identify, protect, detect, react and recover from the advanced cyber threat,” the notice said.

“The Cybersecurity Department expects relevant, comprehensive and actionable improvement recommendations to refine and continue maturing its cybersecurity defense program,” the solicitation said.

While the solicitation is for insider-threat assessments, the posting comes as Senate staff, and congressional staffers more broadly, work from home amid the new coronavirus pandemic. Telework has highlighted several vulnerabilities in the Zoom videoconferencing platform. According to a tweet from a CNN reporter, the Senate’s sergeant-at-arms sent an alert to Senate offices urging them not to use Zoom.

The Office of the Sergeant at Arms has also posted several open cybersecurity jobs.”


CARES Act Impact On Government Contracting Costs



The newly minted CARES Act has plenty that will impact government contractors and one area to pay attention to is how allowable costs will be handled.


“President Trump signed the Coronavirus Aid, Relief and Economic Security Act on March 27. Other than the employee retention and other relief available to all businesses that I’ll leave to my colleagues, here’s what that means and what it doesn’t mean for federal government contractors.

First, generally, CARES provides about $3.8 billion for the Defense Health Program (i.e., R&D, test and evaluation and operation and maintenance), about $1 billion for defense purchases pursuant to the TRICARE program and an additional $1 billion for Defense Production Act purchases, as well as funds to improve information technology services at numerous federal government departments.

These appropriations may relieve the tension in the government technology and other services business who may be falling behind because of delayed contract awards due to COVID-19.

Second, it gives various federal agencies and state/local governments significant financial assistance in countering COVID-19. That might be good for contractors providing those directly related COVID-19 goods or services, but it may also benefit other contractors such as those providing supporting or ancillary IT products and services, program management and facility operations-type services (i.e., much of what is the GovCon business around the Beltway).

Third, CARES provides funds to allow agencies to amend contracts, without legal consideration (meaning requiring something of value in return), to require the government to reimburse paid leave paid from Jan. 1 through Sept. 30. The reimbursement cannot exceed an average of 40 hours per week per employee and cannot exceed the contract’s minimum billing rates.

Also, to be considered for the reimbursement, the employee or subcontractor employee (1) cannot perform work on most government facilities due to closures or access restrictions; and (2) must be unable to telework because his or her job duties cannot be performed remotely during the emergency.

So far, this relief extends to Sept. 30. There are also some offsets for any credits received under CARES or the prior Families First Coronavirus Response Act. Put another way, Congress is agreeing to reimburse contractors to keep employees “in a ready state” if the employee is unable to work at certain federal facilities or telework because their duties cannot be performed remotely.

But alas, this relief is not mandated by CARES, but rather it is within the agency’s discretion. And CARES doesn’t address other non-employee cost increases caused by COVID. That really means that any COVID related contract cost increase still need to pass muster under current FAR Cost Principles and the contract modification will still need formal contracting officer approval.

As I said in my last commentary, keep detailed documentation of your costs and efforts to minimize them for purposes of invoking the FAR Changes and Excusable Delays clauses.

The employee paid leave provision deserves particular accolades because it strikes at the very issue threatening contractor financial viability, on top of other challenges facing other American business. Many employers have limited or no paid leave. And not everyone banks — and I bet the HR people would say few bank — their paid leave or PTO. That extra leave may very well relieve much financial stress for these employees as well as financial stress on employers, and have more of a positive impact on productivity later on.

Much of that is because the cost of that stress may be outweighed by the benefits CARES or other COVID-related relief measures may provide. Equally important is that teleworking is not as easy as it sounds, especially for people with little children, or a caregiver, or foremost those who have the virus.

And I’m saying this not just as a lawyer advising clients about these matters but also being personally familiar with some of the employees’ plights. For example, the one where both spouses with little children are direct charge government contractor personnel and a caretaker for the elderly, also in the business.

All are teleworking with added family duties 24/7 because most if not all of the day care or elderly care centers are closed. So, CARES is a positive step for government contractors.

Some may be worried about those who abuse the paid leave. And I agree. I’ve seen this and conducted many internal investigations of alleged time reporting fraud and misuse of employee leave. True, abusers should be dealt with, but we have a bigger problem here. And this may be analogous to a shutdown (see my March 16 commentary) where the Congress shunned contractor employee paid leave, but it’s now much more serious.

Regarding the non-mandated or discretionary contract modifications, likely you will still need to submit a Request for Equitable Adjustment, or REA; don’t wait for the contracting officer to come to you. More importantly, the lack of more definitive guidance or relief from Congress regarding these contract “mods” should be of major concern, especially for small businesses, as COVID-related REA denials could financially harm these companies and have an adverse impact on the sector as a whole.

Cutting to the chase: why not soften the “allowability” standards under the FAR Cost Principles to facilitate REAs or later claims for those contractors having sufficient documentation to show that it did its best (aka made good faith efforts) to mitigate those costs?

Add to that an extra requirement at the REA stage to “certify” that the request is in good faith and the supporting data are accurate and complete. This is already required for REAs under DOD contracts. Here, the “reasonableness” of the costs will be essentially assumed; they should still be allocable to the contract, properly recorded and otherwise meet government accounting standards. Is this too draconian? Is it too vague?

I suspect a good many government lawyers are advising that it’s crazy to essentially hand out money like that. But then again, isn’t that what the CARES Act and its putative next chapter are intended to do? And I’ll add that after all this is a national and international emergency. A plausible reason against measures like this can be that there would be too much reliance on the good faith of the contractor. And of course they don’t call us “Beltway Bandits” for nothing.

The cynic in me wonders if that’s what some in Congress had in mind. And besides, each case is dependent on its own facts as we lawyers like to say. A better and more fundamental reason in favor of a more lenient allowability standard is that there are most certainly going to be COVID-related REAs. Period. And more than we may imagine, not to mention subsequent formal claims and appeals – which are often very expensive legal processes.

This is the worst plague since the 1918-20 Spanish Flu that reportedly killed tens of millions worldwide. And if these REAs prove to be in bad faith then that’s a matter for the agency inspectors general and DOJ. In any event, after 35 years as a GovCon lawyer I continue to believe that the vast, and I mean vast, majority of those in this business are good, honest and dedicated people. Those very few who aren’t will be needing more people like me.

I hope some of this makes its way into the Son (or Daughter) of CARES.

Stay safe.”


James Fontana


James C. Fontana is the managing member of Dempsey Fontana, PLLC. He can be reached at jfontana@deftlaw.com. The firm’s website can be found at http://www.deftlaw.com.

COVID-19 Government Contract Modification Impact

Image: MN Deed


Industry has faced challenges as it tries to simultaneously maintain the safety of its workforce and continue its defense work.

Officials are working with contractors to determine the impacts and feasibility of telework arrangements for meeting contract requirements. Contract terms might be modified as a result.”


“The Army may modify contracts if the novel coronavirus pandemic makes it difficult for contractors to fulfill their obligations, the service announced March 31.

On March 20, as states and cities throughout the country were forcing non-essential businesses to close, Undersecretary of Defense for Acquisition and Sustainment Ellen Lord issued a memo to the defense industrial base saying the Department of Homeland Security had identified it as a critical infrastructure sector.

“Companies aligned with the essential critical infrastructure workforce definition are expected to maintain their normal work schedules,” Lord said. “If your contract or subcontract supports the development, production, testing, fielding or sustainment of our weapon systems/software systems, or the infrastructure to support those activities, [your efforts] are considered critical infrastructure. If your efforts support manning, training, equipping, deploying, or supporting our military forces, your work is considered critical infrastructure.”

However, industry has faced challenges as it tries to simultaneously maintain the safety of its workforce and continue its defense work.

As the crisis escalates and the number of COVID-19 cases ramps up, state and local officials have put in place restrictions on movement, limited the size of gatherings and encouraged social distancing. Pentagon officials are expecting programs to be affected, and the Army is looking to see which companies might need some relief through contract modifications.

“Contracting officials are working to maintain robust and clear communications with contractors to determine impacts of the COVID-19 pandemic on performance of Army contracts,” the service said in a March 31 press release.

“Officials are also assessing the impacts of specific contract terms and conditions in cases where contractors request assistance. Assessments are being made on how contractors are impacted by state and local laws, regulations and orders governing access to offices and facilities, and contracting officials will be proactive and transparent in efforts to attempt to resolve or mitigate such impacts, as appropriate,” it added.

Officials are working with contractors to determine the impacts and feasibility of telework arrangements for meeting contract requirements. Contract terms might be modified as a result, according to the service.

“Each situation should be evaluated on a case-by-case basis in an effort to best promote the welfare and safety of the workforce while ensuring mission continuity,” Assistant Secretary of the Army for Acquisition, Logistics and Technology Bruce Jette said. “The resiliency and strength of our team is a national asset and is critical to our Army’s ability to meet mission requirements around the world. We must do what we can to support it.”

As of March 31, there are 72 COVID-19 cases among Defense Department contractors, including one death and four hospitalizations, according to the Pentagon. There have been a total of 1,259 cases across the military including servicemembers, civilians, dependents and contractors. That number is expected to rise as the pandemic continues and the amount of cases across the United States and the world increases.”


COVID-19 Government Contractor Short and Long Term Impacts

Image: C2essentials.com


Set a positive tone by focusing on and communicating how to take advantage of delays and downtime. Stay healthy, stay home, and stay alert to opportunity.


“The primary impact of the coronavirus is that everyone involved in federal procurement – acquisition professionals, federal contractors, and others – is busy rearranging personal affairs. Making sure you, those you love, and everyone in your community is safe should be the primary concern. But once the dust settles, the short- and long-term impacts on your business will become apparent.

Predictions and Best Guesses

While we can’t predict the full extent of the impact at this time, change is happening. Some best guesses:

  • Procurement delays: Upcoming procurements are slipping to the right, whether that means RFP release or due dates. These delays are due to the government focusing on emergency acquisitions as well as the loss of productivity as employees work and/or recover from illness at home.
  • Travel: Non-essential travel is banned as are large gatherings. The Government cannot host in-person industry days, site visits, information exchanges, orals, and technical challenges.
  • Face-to face meetings: Business development and capture professionals cannot schedule on-site non-essential meetings.
  • Procurement vehicles: Multiple award vehicles will continue to grow in popularity because they are the easiest path to procurement and award. Expect increased procurement activity on GSA Schedules; GWACs like Alliant, OASIS, CIOSP, SEWP; and other best in class (BIC) vehicles as well as existing single agency vehicles such as IDIQs and BPAs.
  • Contract performance: The Government and employers are telling most on-site employees to work from home. Payment processing could also face delays if there are absences in the government workforce.
  • Year-end Push: Expect a year-end selling to peak like never before given there will be a near-term slowdown that will push Federal spending to later in the year.

What Can Federal Contractors Do?

Once employees have settled into the new normal, Federal contractors must take advantage of delays and downtime. First, however, make sure teams have everything needed to work virtually, including home office space with good bandwidth, video-teleconferencing tools, computer headset, and the like. Second, when employees have downtime, encourage them to take advantage of free webinars as well as virtual training opportunities. Third, set up or reinforce existing Standard Operating Procedures (SOPs) for virtual teams to work on capture, solutioning, proposal management, proposal writing and review, and lessons learned.

Some Federal contractors are already quite adept at virtual capture and proposal processes, while others are not. Those who typically work in-person will have a harder time adapting and need to move quickly to establish SOPs to avoid confusion and productivity loss.

Seize the Opportunity

These weeks or months of uncertainty are an opportunity. Get ahead of acquisitions and the end of federal fiscal year push by assessing capture readiness. Hold solutioning sessions focused on identifying discriminating Strengths. Begin to outline, detail and write to each opportunity’s value proposition; hold focused color team reviews and perform proposal recovery; and then, perhaps, put the proposal on the shelf for later.

The current moment is also the perfect opportunity to perfect proposal repositories. Update and improve past performance, resumes and boilerplate. Specifically focus now, while you have time, on improving future past performance ratings as they are very impactful in building wins. Gather and categorize proof points needed for substantiation of discriminating Strengths. Position your company to be more agile in responding to procurements.

Finally, hold those proposal post-mortems and lessons learned meetings that your company postponed in favor of putting out fires on live bids. Post-mortem reviews of both winning and losing bids can identify best approaches for future procurements. Lessons learned reviews can improve processes, tools, templates and repositories. Analysis of Government debriefs enhance proposal quality. Use downtime and delays to make your proposals great.

Stay Positive

As long as your company has the virtual tools, SOPs, and workflows along with experienced facilitators (in-house or consultant), you can use this uncertain time to prepare for future wins.”


Lisa Pafe

Lisa Pafe is a capture strategy and proposal development consultant and is vice president of Lohfeld Consulting. She can be reached at LPafe@LohfeldConsulting.com

Pentagon Raises Contractor Progress Payment Threshold To Keep Cash Flowing

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The Pentagon, in a move to boost cash flow to large and small defense companies during the coronavirus crisis, will temporarily increase the percentages paid to contractors, known as periodic progress payments.

For small businesses the rate will go to 95% from 90% of incurred cost.”


“Public interest groups called for the policy to be closely monitored.

The change comes as the U.S. Department of Defense was touched by a coronavirus fatality for the first time. A contractor who tested positive for the virus and worked at the Defense Security Cooperation Agency in Crystal City, Virginia, died on Saturday, the Pentagon said.

The Pentagon’s Director of Defense Pricing and Contracting issued a “Deviation on Progress Payments” memo late Friday that increases the rate for contracts to 90% of incurred costs from 80% for large businesses, Pentagon spokesman Air Force Lt. Col. Mike Andrews said in a statement on Sunday.

For small businesses the rate will go to 95% from 90%.

“This is an important avenue where industry cash flow can be improved,” Andrews said. The department also “is accelerating payments through several means to prime contracts, and directing prime contracts to expedite payments to subcontractors,” Andrews said.

In addition, the agency that manages contracts is working with the Pentagon’s accounting organization that makes the payments “to ensure that invoices are continuing to be paid in a timely manner,” Andrews said.

Blow-Back Possible

Pentagon acquisition head Ellen Lord on Friday issued guidance to industry that defense contractors are “expected to maintain their normal work schedules” — within recommended guidelines from the U.S. Centers for Disease Control and Prevention — amid the coronavirus outbreak because they’re considered “critical infrastructure.”

Byron Callan, a defense industry analyst for Capital Alpha Partners, said in an email that the new policy “will work if the large contractors assist smaller ones that are typically small and private. Think of the $50 million machining parts company that has 70% of sales for commercial aerospace and 30% of defense.”

The industry also risks negative blow-back if the increased payments are abused, he said. “If the large public companies use this change to accelerate share buybacks, I would expect management to be tarred and feathered,” he said.

“It’s important to help employers to keep paying people during this crisis, but the Pentagon needs to do more than just trust the better angels of these companies’ nature to prevail,” Mandy Smithberger, a director for the Project on Government Oversight, which monitors military spending, said in an email.


“They should require companies that receive these funds to commit that this money won’t go to dividends, salaries, and stock buybacks, but to the employees on the front lines who are most vulnerable.”

Shay Assad, the Pentagon’s long-time top official on pricing and contracts financing, said in an email the new effort reflects a fundamental misunderstanding of the regulations already in place that already provide for generous reimbursement rates. Assad retired in 2019.

“The fact is that cost of borrowing” from banks “is negligible” and doesn’t require additional Pentagon intervention, Assad said. “There is absolutely no reason to change the progress payment rates for large businesses. Large business is more than capable of using their own cash or borrowing at minimal interest rates. This is a taxpayer rip-off.”

Assad estimated that the top five defense contractors generated $93 billion in free cash flow between 2012 and 2017. “They bought $90.5 billion of their own stock during that same time frame,” he said. “There is no cash-flow intervention required.”


Many Contractors Awaiting Pandemic Guidance From Government Agencies



Lawmakers want federal agencies to publicly post their contingency plans so everyone has a better idea of what to expect as more federal employees move to telework and other alternative operations. Official agency advice is scarce.”


“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.”


Government Must Make Sure Contracts Cover Remote Work And Classified Access Logistics

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‘It is really important to adjust and amend contracts so that contractors can continue to work with the government counterparts.’ If that’s teleworking, that’s teleworking, if it’s moving to a different location, it’s moving to a different location.”


As millions of Americans prepare to work from home in an effort to slow the spread of the coronavirus, Defense Department managers and the companies that support them are waiting for guidance on just how they should be clearing their offices.

Set aside the workers who build planes, ships, tanks and other weapons on special assembly lines around the country. Plenty more are holders of security clearances who can’t do their jobs without special computers and facilities that protect classified information. Among them: analysts, war planners, and engineers designing next-generation weapons.

But the situation is murky even for the hundreds of thousands of government contractors who don’t need access to secret information. As the Pentagon begins sending nonessential employees home, it’s unclear what’s going to happen to them.

“There’s almost no guidance going out about contractors,” said David Berteau, a former Pentagon official who is now CEO of the Professional Services Council, an organization that advocates for government contractors. “Part of that problem is, contractors are managed on a contract by contract basis.”

And in many cases, these employees’ contracts don’t even mention remote work.

“You don’t want to change contracts from the top down,” Berteau said. “But you can send out guidance to contracting officers that says, ‘It is really important for you to adjust and amend contracts so that contractors can continue to work with the government counterparts.’ If that’s teleworking, that’s teleworking, if it’s moving to a different location, it’s moving to a different location.”

For years, the U.S. government has done drills and exercises to prepare for scenarios where workers cannot access secure facilities, said Berteau, who served as assistant defense secretary for logistics and materiel readiness during the Obama administration.

But: “We have not taken those lessons from the simulations seriously enough that we’ve done the preparation necessary to execute it,” he said. “So now we’re having to do it in real time. It’s important that we get it done. It’s important that we keep the government working. It’s important that contractors are part of that keep the government working goal. And it’s important that they have guidance [and] it’s integrated across the government in order to make that happen.”

As for the government workers and contractors who must access classified information, there’s no alternate, for now at least, to having a secure government facility.

“You can’t go home on your laptop and plug it in and get classified data,” Berteau said. “It’s my personal belief…that we could do a lot more than we are doing.”

But, he noted, it would likely cost a lot to buy the equipment needed to make that happen.

“We have got to be taking notes as we go about what we need to do better … so we’re more ready the next time it comes,” Berteau said. That would be a federal government, executive branch, responsibility, but it would also be a congressional responsibility to make sure it happens and that the resources are available to do it.”