Contractors demand maximum telework authority as coronavirus furloughs loom

Contractors want the government to afford them the same telework flexibilities federal employees have been granted in its coronavirus response.

Agencies have begun sending contract employees home without the authority to telework, and those responsible for nonessential functions may soon be furloughed.

The Department of Homeland Security has identified critical infrastructure sectors that will need to continue operating during the coronavirus pandemic. That list includes essential companies and workforces in health care, law enforcement, food and safety, energy, communications and IT, and the defense industrial base, among others.

But for those people or companies that don’t fit the list or that provide services that can wait, they, for now, appear to be largely left in the dark. Though DHS recommends they be asked to telework when possible, saying that “in-person, non-mandatory activities should be delayed until the resumption of normal operations,” the Office of Management and Budget hasn’t issued any broad policy for contractor telework.

Some work, particularly in the intelligence and cybersecurity space, requires contract employees on site. If those employees aren’t permitted to do their jobs in-person, companies’ bottom lines will start to take a hit, Ryan Bradel, the attorney leading Ward & Berry’s government contracts practice, told FedScoop.

“A couple of weeks is doable, but if this thing goes on for months, I don’t know if the government is in the position to pay for furloughed employees for that period of time,” Bradel said. “We’re really in uncharted territory here.”

The only precedent is the partial government shutdown from Dec. 22, 2018, to Jan. 25, 2019, caused by a budget impasse, where a law was later passed providing back pay to furloughed contractors. But early estimates have coronavirus restrictions lasting months, not weeks, Bradel said.

In a Wednesday letter, the Professional Services Council trade association called on the Office of Management and Budget to issue comprehensive guidance to all federal acquisition officials allowing maximum telework for contractors. The Federal Acquisition Regulation permits contractor telework, said David Berteau, president and CEO of PSC.

Normally PSC wants contracting officers to make the best call for each contract, but in this case, teleworking clauses need to be added so employees can social distance for their health and safety.

“In these circumstances, you don’t want thousands of different decisions,” Berteau said.

But departments continue to direct contractors to work with their COs to this point.

Sen. Mark Warner, D-Va. and vice chairman of the Intelligence Committee, sent a letter Wednesday to Defense Secretary Mark Esper urging the Department of Defense to issue clear telework and paid leave guidance for employees and contract personnel.

“[A]t present, guidance issued by OMB, [the Office of Personnel Management], and [DOD] have ambiguity that is creating confusion and anxiety,” Warner wrote. “Personnel whose duties and responsibilities do not immediately contribute to a critical national security function would benefit from a clear directive instructing them to work remotely and would make a significant impact for our nation.”

Employees also remain unclear on whether administrative, weather and safety, sick, or annual leave applies to time off, if they exhibit COVID-19 symptoms, are exposed or have to take care of sick family.

The same day as the Warner letter, DOD released an internal letter dated March 10 in which Kim Herrington, acting principal director of Defense Pricing and Contracting, encouraged COs to engage with contractors to determine welfare and safety measures.

“It is vital that close communication and coordination between these stakeholders continue as the situation evolves, and the team should consider all potential scenarios at the contract level as the impacts may vary based on the specific situation or location,” Herrington wrote.

Thursday letters to contractors from the Federal Emergency Management Agency and Transportation Security Administration had a similar message.

Bradel is encouraging his clients to maintain open lines of communication with COs and other government contacts stressing the pressure contractors are under.

“I’ve had a lot of calls with clients, where they’re asking, ‘What do we do?’” Bradel said.

Only in the last 48 hours had Bradel heard of contractors laying off a few employees, and he said none appeared to be in “serious financial trouble, yet.”

But small and midsize companies that rely on day-to-day billing will go out of business in a prolonged COVID-19 scenario, which means the government will have lost its base of service providers once the crisis ends, Bradel said.

“Agencies are going to have to try and maintain some cash flow, so these companies can stay in business,” he said. “I have no doubt that organized efforts to pass some legislation are in the offing.”