Every time there’s a Government shutdown, a devastating hurricane, the funeral of a former President, or an occasional Christmas Eve time-off-with-pay given to Federal employees, the next question is always the same: What do we do about our Contractors while Federal employees are stuck at home?
Somehow it always seems to be a surprise.
It’s not like there’s never going to be another shutdown. In this age of governing by brinksmanship–regardless of which political party you’re a fan of, of any–I can almost guarantee you we’ll have at least three shutdown threats a year, and during every one, even if we don’t actually shut down, there is significant prep time put into getting both the Government employees and Government Contractors in order before the doors close and the lights go out.
Sure, there’ve been a few shutdowns that I’ve seen myself over the years. There was this one back in the mid-90’s. My supervisor handed me my furlough notice and on the way home, my car broke down. I sat waiting on a tow truck, wondering how I’d pay my bills, including getting my car fixed, but the next day, I was back at work and all was well with my world for a long time. In the past decade, I’ve sat at home, wringing my hands, stomach churning over whether “my SOCOM guys” were being taken care of. Since April 2011, I’ve long since lost count of how many threatened and actual shutdowns we’ve had, regardless of which President and which Congress. I personally blame them all for not working out a deal–this is no way to run a government and no way to keep our best and brightest, whether Federal employees or Contractor employees who are impacted. Regardless of who is running the Government, I rail against it every single time. There has got to be a better way.
But I don’t see that happening yet, which means that WE in the field need to come up with better solutions. Even if our Government averts a shutdown, we usually just kick the can down the road a few months and have to go through this all over again. So if at our level we cannot force a timely resolution to the political brinksmanship, then we need to look at what we CAN do at our level. Shutdowns are nothing new, they will happen again, and we in Acquisition need to be prepared for them.
There’s also nothing new about devastating hurricanes. Hurricanes, blizzards, wildfires… squirrels frying themselves and knocking out a power station…all sorts of natural catastrophes that force a Government installation to shut down for anywhere from a few hours to a few weeks. Less common are funerals for past leaders where the Government closes its doors for a national day of mourning. Every now and then, there’s a Christmas Eve holiday or half day given to civil servants, though in actuality most are already taking at least a half day or off on use-or-lose leave unless they’re working an emergency action at their desks.
And yet, in spite of the long pattern of Government offices being shut down for a slim number of reasons, I hear every time, “What do we do about our Contractors?”
Some members of the Acquisition work force want their leaders on high to come down from the mountain and give then one definitive answer. I disagree with that thought process because, well, why would a Contracting Officer ever give up that kind of authority and influence over his or her own contracts when you don’t have to?
The real answer to the question is the same as for the vast majority of Contracting questions everywhere: “It depends.”
What it depends on is what’s in the contract.
Usually the contracts most affected by a shutdown are services contracts, specifically manpower support contracts, aka Advisory and Assistance Services (A&AS) contracts, which is basically a separate workforce that leads a life parallel to that of a Federal employee and their workload. That’s not a legal definition but is an accurate description of Federal workload that in the ’90’s was redirected to Contractors while politically claiming that Federal workforce was being trimmed down significantly in the outsourcing. I watched this happen. Two decades later, many installations cannot complete their workload without A&AS support because they no longer have the organic capability. A&AS employees keep the work going at a reduced level in some locations.
These days, when someone asks what they should do about their Contractors during a shutdown, I direct them first to their contracts to find instructions there. Unfortunately, way too many contracts are silent on the matter or the language is inadequate. You see, there are lots of ways you can play this as a Contracting Officer, Program Manager, and Contractor, and it all depends on the nature of the work, though funding and contract type play a part as well.
Here are just a few differences in how Contractor personnel may be affected:
- Contractor personnel are not co-located with Government personnel. Contractor personnel do not depend on Government personnel to open the facility where work must take place. This is the least troublesome scenario; however, in some cases, Contractor personnel must receive approval or Government-furnished information or some other type of response from a “non-essential” Government employee in order to work. I have heard of Contractors requesting a pricey equitable adjustment from a furloughed Contracting Officer due to the lack of availability of said Contracting Officer…and I’ve heard a few unprintable phrases from those Contracting Officers who’d been stuck at home not knowing if they would be paid or when they could legally go back to work.
- Contractor and Government personnel work together in the same facility. Contractor personnel are allowed to be in the facility alone or with minimum Government personnel, such as military members (not furloughed). The Contractor personnel are not hindered from getting to their work stations.
- Contractor personnel are not allowed to be in the facility alone or must depend on Government personnel to open the building, but they are allowed to telework if they cannot access their normal work locations. Contractor personnel can continue to work even when the facility is in shutdown mode, weather and utilities permitting. Example: an ice storm that wipes out home access as well as work location access.
- Same as #3 but due to classified work, they are not allowed to telework and can perform their duties only inside that location. Ditto if the nature of the work means they must be at that location, even if unclassified.
- Contractor personnel operate a Government-owned facility. Government personnel are not required to be present.
When I was a Contracting Chief over a Specialized Contracting office that included over a billion dollars’ worth of A&AS contracts and later over the Rapid Acquisition Cell, I learned quickly what a Government shutdown looked like or what a shutdown due to hurricane damage looked like. Having been through it a time or two, I knew how to plan ahead to make sure the inevitable next time was a smooth as possible.
For example, on an incrementally funded R&D contract, if I knew a shutdown was coming and the Contractor was almost out of funds and awaiting an increment in the next two weeks, I would try to make sure that they had funding on contract to continue for at least a month while I sat home giving myself ulcers so that at least they could continue to support the mission where possible and not be in a stop-work situation. Sometimes we negotiated an extension to a period of performance…basically whatever I could do to keep the Contractors going, still be legal, and everyone be in agreement.
I planned ahead for shutdowns of as many types as I could imagine, and I urge you to do the same, both for any Federal employees you supervise and any contracts you administer or plan to award. I recommend that you review your contracts that might suffer in a shutdown so you’re not writing a new plan or turning in new reports every single time there’s a shutdown threat due to politics, natural disasters, and any potential or obscure reason that a Government facility might not be open and cause Contractors not to know whether to report to work.
Contracting Officers, you could choose to work with your Contractors now to add language or clarify language in your contracts. Send a Contracting Officer letter stating your agreement and to be incorporated into the next modification cut–your signature on the letter is binding and it’s a good short cut if you’re pressed for time. For your upcoming contracts where you are planning your acquisition strategy, go ahead and address how to handle any applicable effects of a shutdown.
Some of my contracts were as simple as listing all of the holidays for Federal employees so that my Contractors knew when we would not be present to open the building. Other contracts allowed for telework for Contractors if for any reason Federal employees were not onsite. I have also put language in contracts to cover executive orders or any other type of direction for Federal employees to be absent from the work location.
This is not hard, and it saves a lot of work you won’t have time to do later. I won’t tell you exactly what language you should use because every contract is different but you’re a thinking person, so work with your Contracting counterpart, think ahead, and figure out how to make it as painless as possible when crunch time arrives.
Because it always does.
c 2018 Lorna Tedder
- Rapid Acquisition Consultant
- Recently retired Contracting Officer, unlimited AFMC warrant 1991-2018
- Nationally recognized Innovation Thought Leader in Government acquisition
- Rapid acquisition teacher, both FAR and non-FAR based contracting
- Master brain-stormer and advisor to program offices across the DoD
- Expert in developing junior and mid-level personnel to become innovators in Government acquisition
- 3 decades of first-hand experience and success with Other Transactions, Oral Proposals, 10 USC 2373, Broad Agency Announcements, unique pricing arrangements, Price Based Acquisition, Award Without Discussion, streamlined source selections, multiple award IDIQs, UCAs, waivers, omnibus tool creation, Quick Reaction Capability teams, and strategic sourcing
- Do you need help? Would you like me to spend a couple of days teaching your Government team how to use innovative contracting methods? Message me on LinkedIn or my contact page.