DAEC COVID-19 Update April 1: Today's Industry Call Minutes

Colleagues:

Minutes from today's calls for industry provided below.

OSD A&S:

• DHS updated the memo on definition of DIB—version 2.0; memo three most likely upcoming on essentiality as they continue to refine the definition.
• Corps is providing initial planning and assessment of existing buildings to convert to hospitals.
• How to sell or donate: industry should go to FEMA.gov “how to help” site to offer support; various Guard support activities covered across all fifty states; EO delegations for COVID prioritization will be provided today and we will pass to industry; Scott Baum still at FEMA leading charge with respect to priorities for DoD but DoD cannot set its own priorities re PPE, etc. for COVID—that’s FEMA and HHS.
• OSD still needs information on overruns on fixed price contracts—they need specific examples FFP contract overruns. This will help with DoD input in to stimulus package number 4.
• Small business discussion remains topic for this Friday. Updated portal for industrial policy see at businessdefense.gov/coronavirus which is the site to go to first.
• JATF Update: heavy focus on priority medical requirements and determining future ways to help HHS as urgency settles in or lessons are learned. JATF developing a portal as single-entry point to DoD on all COVID questions from industry. JATF focus on PPE but soon will broaden. Portal goes live end of this week.
• DPA Title 3 $1B DoD portion of stimulus and CARES Act: have spent that money several times over; industrial base fragility matters and OSD DIB council meeting this Friday where services discuss their individual DIB concerns.
• DCMA: Local shelter in place -- New DHS guidance is much more complete and industry needs to reference that in their letters and it doesn’t hurt to carry DHS guidance as well. Latest was sent to all Monday.
• DPC got the REA memo out Monday; feedback coming in on that memo; progress payments-- resolving issues around liquidation rates and opening beyond prospective vice retroactive adjustments and that work all continues so stay tuned as this is the hottest contract topic now and hope to resolve these issues end of week.
• UCA deviation coming out soon (by end of week) trying to confirm with Congress that they may have left off the cap relief and DPC can’t find it and working with the Hill staff and OGC to get clarity.
• Other item is Sec 3610- a lot of work on this and most likely OSD DPC direction will not be published this week with additional challenge of coordinating with OMB and other Fed Agencies so stay tuned.
• DPC website typically offers opportunity for early engagement prior to any rule making takes place and are doing same for CARES act so industry can make comment as one would during the NDAA comment period--just go to DPC website, under DARS, under early engagement. Link will be provided later today. Lots of discussion on 3610.
• Ventilators—DLA is pursuing alternatives that the medical community said not acceptable alternatives and DLA is standing down; working other COVID requirements.
• PA: press briefs continue—TRANSCOM yesterday, SecNav and CNO today; calls with Mercy and Comfort Commander, defense.gov for all transcripts; SecDef did CBS interview last night.
• Transportation: Sealift folks not covered in CARES relief and will need help in 4th stimulus; TRANSCOM Commander comments re passenger carriers and using industry first to move things to keep some money flowing to the commercial carriers as best can be done.
• I emphasized immediate concern regarding Section 3610 OSD DPC guidance needed and that during today’s ODNI call it was noted that NSA and NRO have issued Sec 3610 guidance to their contracting officers and that now ODNI is drafting an overarching agency guidance on the matter.
• OSD DPC confirmed that ODNI and they have a call this afternoon to harmonize Section 3610 guidance.

Office of the Director of National Intelligence (ODNI) re COVID 19 & industry partners:

• ODNI appreciates all industry is doing to work with them.
• Continuing to address issues as they come up and distilling OMB and congressional guidance and direction hourly.
• OMB provided guidance regarding max flex for milestones and contract completion.
• Directed max use of flexibility on Monday with a focus on health and safety and minimizing presence in building and working with industry to ensure no penalties.
• National security paramount re collection and analysis and then managing workforce to minimize risk to workforce while achieving national security goals.
• Minimizing in person activity, focus on critical activities, ODNI is at minimum manning.
• CARES act provides some important flexibility like on call provision (under 3610), in coordination with DoD and this is a whole of government matter and it must be consistent.
• Each agency will make its own determinations with respect to contractors and changes and ODNI is working to achieve consistency, but the authority for the contracts come from the agency level not at the ODNI level so you must work with individual contracting officers but striving for consistency across all agencies, using DoD’s published essentiality memo and ODNI does not intend to publish its own except where guidance is lacking on a particular matter.
• ODNI is pleased with 3610 which gives tools not there before. 3610 is a new tool but not the only tool—see normal REA FAR relief. Industry: Make sure billing adjustments are clear that it’s a COVID related performance matter.
• Section 3610 is the section we are discussing. Straight forward and simple—this is not complicated. Goal is to implement in a straight forward manner as soon as possible and to be consistent across IC. Each solution will not be the same but striving to be as consistent as possible.
• ODNI is working across various agencies including DTSA in DoD on process consistency, capturing lessons learned, etc. 1.4M cleared persons; almost 440K of those are contractors, so they are working to maintain control and keeping clearances active; provided flex guidance to all; OPM OMB DTSA and ODNI having daily calls to ID mitigation and emerging issues that need to be addressed.
• A continuous evaluation effort can be accomplished under mitigation environment; enforcing new guidance in January for practitioners to accomplish some flexibility; any flag or alert is not put into JPAS but back to the individual agency to address especially with respect to financial issues hardships for clearance holders; re waiving polygraph requirement—all agencies have in place procedures to waive polygraphs to on board staff; the clearance assessment is the whole person and so if one flag arises it may not be consequential.
• ODNI interpretation of CARES ACT Sec 3610: if one cannot perform on government site and can’t telework the contractor is allowed to bill up to 40 hours a week for contract employee to be in a on call status. Some contracts are silent on telework so you start with the contract in place and move from there. Again, back to individual contract and the contracting officer response to each industry.
• Post COVID, there will be lessons learned that will influence future consideration of telework and what is allowable as a telework appropriate level of work. However, the IC community spent millions over the past decade to protect and enhance control and prior to COVID we were seeing non-Title 50 community worrying more about vulnerability and seeking ways to tighten up. So will need to balance vulnerability and investments with any pro telework post COVID discussion and decisions.
• Legislation dates action back to 31 January concluding Sept 30th 2020. Need to wait for agency guidance prior to submitting bills. There will be instructions in each agency guidance. NSA has issued guidance as an example.
• If someone, due to govt closure or distancing direction and unable to work normal 40 hours, but say work 20, they are entitled to other 20 if prevented from showing up or working otherwise. Encouraging that CARES act 3610 applies to on off work weeks and ODNI believes it applies as discussed.
• Keeping employees in a ready state—how documented? Individual Agencies will decide and provide specific guidance.
• NSA code orange. Each agency decides what is mission critical and they can decide whether to proceed with source selections and awards. They will refer to NSA guidance.
• A lot of discussion about the need for ODNI leadership in publishing formal guidance to the Agency community re CARE Act and 3610.

About the authors

Keith Webster

Keith Webster, president of the U.S. Chamber of Commerce’s Defense and Aerospace Council, guides the focus of the council to strengthen the U.S. defense and aerospace industries by influencing domestic and international policy on behalf of its members.

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