COVID-19: Here are 5 Things Federal Government Contractors Must Know

>COVID-19 and Government Contractors. COVID vaccine mandates and other compliance issues for Federal contractors. Attorneys specializing in Government contracts. Federal contracting consultants.

Learn about the impact of COVID-19 on Federal Government Contractors. Delays and disruptions. Stop-work orders. Suspensions of Work. Excusable delays. Modifications. Equitable Adjustments. Termination for Convenience. Teleworking. Small Business Government contracting lawyers. Discover how a government contracts lawyer can navigate complex regulations and protect your business interests effectively.

COVID-19 Resources for Govenrment Contractors

Jeffrey Giancola, the Principal, is a cum laude graduate of Columbia University and received his law degree from the University of Virginia. He is a member of the State of Maryland Bar and has 30 years of experience in the Government procurement field. This firm focuses exclusively on U.S. Federal Government contract matters and has a nationwide practice. We can also assist with overseas U.S. Government contracts.

>Managing Contract Performance Issues Due to COVID-19: Here are 5 things that Federal contractors must know:

Learn About Question #1 – FAR Clause COVID Vaccine:

Are Federal contractors and subcontractors subject to a mandatory COVID-19 vaccine mandate?

YES. Pursuant to Executive Order 14042 (09 September 2021), the Safer Federal Worker Task Force issued guidelines for Federal contractor and subcontractor workplace safety. Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;

2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and

3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

CLICK on this link to Download full text of the Workforce Guidance Document

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Both the FAR and DFARS Councils have issued implementing deviation regulations and clauses, FAR 52.223-99 and DFARS 252.223-7999, both titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” which direct all covered contractors to comply with the Taskforce Guidance discussed above (including any updates) and to flow down the FAR or DFARS clause to all covered subcontractors. These clauses are being inserted into all Federal contracts via bilateral contract modifications.

CONTACT us here: COVID-19 MANDATORY VACCINATIONS to contact Mr. Giancola now about compliance with the new COVID-19 vaccination clauses.

Learn About Question #2 – Teleworking:

Should agencies be directing their Federal contractors to follow the lead of the Federal Government in their use of telework for their contract employees as described in 0MB Memoranda M-20-13 and M-20-15, which discuss the use of telework in connection with COVID-19?

Answer #2: The Federal Government’s telework law and recent announcements cover only Federal managers and employees, not contractors or their employees. Federal contractors are responsible for managing their workforces, including how telework is used by their employees, consistent with their own telework policies and the contract terms they have negotiated with Federal agencies.

However, in the spirit of OMB’s guidance, which seeks to maximize the use of telework, and FAR § 7.108, which instructs agencies not to discourage contractor use of telework when consistent with contractual requirements, agencies are strongly encouraged to work with their contractors to evaluate and maximize telework for their contractor employees, wherever possible, as a way to enable continued contract performance consistent with the health and safety of their contractor and government personnel. This includes modifying contracts that do not currently allow for telework. 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.

CONTACT us here: COVID-19 TELEWORKING to contact Mr. Giancola now about getting your Government contract modified to allow for teleworking.

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Learn About Question #3 – Schedule Delays – Termination for Convenience:

If contractor personnel must be quarantined due to exposure to the virus, whether or not related to performance of the contract, and this action results in a slip in the contract schedule, may contracts be extended or otherwise altered?

Answer #3: Yes. Government contracts provide for excusable delays, which may extend to quarantine restrictions due to exposure to COVID-19 . For example, see FAR clauses 52.249-14, 52.212-4, and 52.211-13. In determining the best course of action, the contracting officer should discuss the situation with the contractor to determine if other options are available (e.g, ability of employee to telework or to find a substitute employee). If other options with the existing contractor aren’t feasible, it may be appropriate to re-procure elsewhere if possible. Such actions should be taken for the convenience fthe government (e.g., through use of the relevant convenience termination clause or a no-cost settlement) and without negatively impacting the contractor’s performance rating. Excusable delays that result in adjustments to the contractor’ s delivery schedule should not negatively impact a contractor’s performance ratings.

Agencies are encouraged to be as flexible as possible in finding solutions.

CONTACT us here: COVID-19 SCHEDULE DELAYS to contact Mr. Giancola now about getting your Government contract modified or terminated for convenience due to the schedule delay impact of COVID-19 on your business.

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Learn About Question #4 – Costs Associated with COVID-19 – Stop-Work Order:

How should agencies address requests for equitable adjustment associated with costs related to safety measures taken by contractors to protect their employees from COVID-19, including costs associated with performance disruptions caused by the government (e.g., closure of an office building) when performance doesn’t allow for telework (e.g., work requires access to secure location, or involves building maintenance)?

Answer #4: Requests for equitable adjustment should be considered on a case-by-case basis in accordance with existing agency practices, taking into account, among other factors, whether the requested costs would be allowable and reasonable to protect the health and safety of contract employees as part of the performance of the contract. The standard for what is “reasonable” according to FAR § 31.201-3, is what a prudent person would do under the circumstances prevailing at the time the decision was made to incur the cost (e.g., did the contractor take actions consistent with CDC guidance; did the contractor reach out to the contracting officer or the contracting officer representative to discuss appropriate actions).

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). 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. The government may make changes to the contract using the appropriate changes clause that applies to the contract (see FAR clauses 52.243-1 through 52.243-3 or clause 52.212-4(c)). If necessary, generally after considering other alternatives, they may suspend or stop performance through clause 52.242-14, Suspension of Work, and clause 52.242-15, Stop Work Order.

CONTACT us here: COVID-19 COMPLIANCE COSTS to contact Mr. Giancola now about getting your Government contract modified to adopt enhanced safety features for personnel and/or to stop work pending consideration of same.

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Learn About Question #5 – Facility Shutdowns – Issuance of Stop-Work Orders:

If a Federal building, such as a museum, is closed to the general public in order to further the practice of social distancing, should repair work to the building be halted until the building is reopened?

Answer #5: Whether work is continued or stopped should be addressed on a case-by-case basis, taking into consideration the health and safety of government and contractor employees.These discussions should include consideration of guidance from CDC and local public health officials to determine if there is a risk-based reason to stop work and, if work continues, steps that might need to be taken to address the health and safety of workers.

CONTACT us here: COVID-19 STOP-WORK ORDERS to contact Mr. Giancola now about getting a stop work order issued on your Government contract due to the health and safety risks associated with COVID-19.

One thing you should NOT do: Don’t go it Alone!

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