Albert B. Krachman and Dominique L. Casimir
The Department of Defense’s (“DoD”) Office of Under Secretary of Defense for Acquisition and Sustainment issued Guidance on March 10, 2020, addressing internal and external communications in response to the coronavirus COVID-19 pandemic. See Planning for Potential Novel Coronavirus Contract Impacts.
The Guidance states that the Contracting Officers (as distinguished from Program personnel) hold the contractual authority to address contract performance impacts related to COVID-19. Moreover, the Guidance encourages close communication between Contracting Officers and contractors, and stresses Contracting Officer transparency, a term not normally seen in contract administration guidance. In pertinent part the Guidance states as follows:
Communication between the Government and contractors is key to total workforce safety and mission continuity. Therefore, contracting officers should be as transparent as possible as they make decisions potentially impacting contract performance or contractor personnel. Contracting officers should also encourage their contractor site leads/leadership to engage with their employees as soon as possible to share information and discuss any COVID-19 concerns they have, and ask their contractors to identify potential impacts to the welfare and safety of their workforce or contract performance, which impacts our total force.
The Guidance contains three important messages for defense contractors who may be impacted by COVID-19. First, defense contractors can cite this Guidance as a basis to submit questions to the Contracting Officer and request program-specific information about acquisition planning and related issues affecting their contracts. Second, the Guidance encourages affirmative efforts by contractors to communicate with their employees about personnel impacts and employee concerns. While social distancing practices may prevent contractors from town hall or other company-wide meetings, technology solutions will substitute for this. Last, the Guidance asks contractors to identify (presumably to the Contracting Officer) workforce impacts to health and safety, and contractor performance.
The Guidance makes limited reference to Program Offices, but it would be prudent for contractors engaging with Contracting Officers on these issues to be sure the Program Offices are copied on the communications. Some Program Offices might prefer that communications of this type go through the Program Officer first, so contractors should explore this issue up front.
As the Guidance notes, the only official in the contracting channel with the authority to modify the contract is the Contracting Officer. This Guidance encourages contractors to open this channel to the Contracting Officer, and contractors should avail themselves of this opportunity. In some cases, the quality of the relationship between the contractor and the Contracting Officer can be the difference between the contractor gaining relief or facing adversity, and contractors should leverage this directive of contracting officer transparency to foster this relationship.
As COVID-19 issues permeate virtually all aspects of commerce nationally and internationally, we stand ready to help. Blank Rome’s Coronavirus (“COVID-19”) Task Force includes interdisciplinary resources across every business sector from insurance recovery to HR.