DOD Calls For Continued Flexibility In Contract Place Of Performance

Morrison & Foerster LLP - Government Contracts Insights

In a win for remote contractors, the U.S. Department of Defense (DoD) expressed its continued preference for remote work under its contracts. In a memorandum issued earlier this month, the Office of the Under Secretary of Defense (OUSD) asked contracting officers (COs) not to specify “unnecessarily restrictive contract places of performance” for contractors. Specifically, the memorandum directs COs to allow “place of performance flexibility,” including telework and remote work options, to the “maximum extent practicable.”

Notably, OUSD grounds its preference for telework and remote work in the “unexpected benefits” that the DoD experienced after expanding remote work flexibilities for government employees and contractor personnel in March 2020 in response to the COVID-19 pandemic. These benefits include increased efficiencies and effectiveness in mission accomplishment. The DoD noted not only positive gains in mission accomplishment, but also improved access to “new candidate pools, especially in traditionally hard to recruit areas.”  Teleworking, the memo noted, also “afforded the workforce a greater quality of life.”  Therefore, in the perennial competition for talent, the DoD now looks to remote work flexibility “to attract and retain those with the necessary skills and abilities needed to accomplish current and future missions.”

A necessary caveat is that off-site contract performance must proceed “without mission degradation.” Where agency needs, including security considerations, necessitate on-site contract performance, COs are authorized to require it.

The memorandum directs COs to follow Federal Acquisition Regulation (FAR) guidance in drafting solicitation requirements or evaluating offers that involve telework flexibilities. Under FAR 7.108, agencies may not issue solicitations that prohibit “telecommuting” unless on-site performance is necessary to meet agency needs. Also, COs may not evaluate offers unfavorably because they include telecommuting options, unless the solicitation included the prohibition and documents the basis for necessary on-site performance. Finally, COs must also remain cognizant of any occupancy limits issued by the local installation commander before requiring the return of contractors to federal places of performance.

In sum, during the pandemic-driven push for maximum telework capacity, the DoD took a liking to off-site contract performance. Remote work has not only increased mission efficiency and effectiveness, but it has also brought new reservoirs of contractor talent within the DoD’s reach. Now, as many federal civilian workers begin to return to their offices, the DoD is clearly in no rush to bring contractors back on base. Certainly, telework keeps lunch counter lines short.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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