DHG Review of the Office of Management and Budget Memo on Managing Federal Contract Performance Issues Associated with the Novel Coronavirus

The Office of Management and Budget (OMB) released a Memorandum on Friday, March 20, 2020, describing actions that agencies can take regarding the management of their contracts and contractors in the face of challenges presented by the COVID-19 pandemic1. A series of frequently asked questions are included to provide agencies with guidance on topics such as teleworking, mitigating the impact of COVID-19 on contractors, addressing requests for equitable adjustment, enhancing communication with contractors and procurement flexibilities. The memo offers direction and insight to help contractors understand what to expect in certain cases.

DHG suggests considering the following high-level recommendations after reviewing the Memorandum:

  1. Identify all impacts that you are experiencing due to COVID-19 and relevant responses.
  2. Talk to your contracting officers and explore options to keep resources productive and overcome obstacles. Contracting officers have wide latitudes to authorize changes under these conditions and are generally motivated to work with contractors up-front on adjustments and mutually agreeable arrangements rather than administer requests for equitable adjustments (REAs) or claims later.
    Caution: Technical representatives do not have the authority to contractually bind the government, so make sure that you are getting authorization from your contracting officer for any changes or government commitments.
  3. Separately capture the costs associated with any impacts such as non-productive time due to closed government worksites or self-quarantining. Future negotiations based upon contemporaneously recorded cost data is far more credible and effective than data estimated after the fact.
  4. Seek ways to mitigate the direct impacts to the government, such as conducting training updates for employees if they are unable to be fully productive. While there are usually practical limits to those other productive activities, it will assist you in being able to demonstrate to your contracting officers that you are taking actions to limit contract impacts.

These types of changes or agreements for contracting officers to overcome impacts and obstacles can be very contract dependent.

Please feel free to reach out to govcon@dhg.com if you have any questions or would like to discuss potential options.

Footnotes:

Source

  1. More information about the memo may be found at acquisition.gov/coronavirus