The Department of Defense continues to require flexibility in the place of contract performance

The US Department of Defense (DoD) expressed its continued preference for remote work as part of its contracts in a win for remote contractors. in one memorandum Issued earlier this month, the Office of the Undersecretary of Defense (OUSD) urged contract officers (COs) not to place “unnecessarily restrictive contract performance locations” on contractors. Specifically, the memorandum directs COs to allow “flexibility at the place of performance,” including options for telecommuting and remote work, to the “maximum practicable extent.”

Specifically, OUSD justifies its preference for telecommuting and remote work with the “unexpected benefits” experienced by the Department of Defense after expanding remote work flexibility for government employees and contractor personnel in March 2020 in response to the COVID-19 pandemic. These benefits include increased efficiency and effectiveness in order fulfillment. In addition to noting positive progress in mission fulfillment, the Department of Defense noted improved access to “new pools of candidates, particularly in traditionally difficult-to-recruit areas.” Teleworking, the memo says, “also gives the workforce a better quality of life.” As such, in the constant competition for talent, the Department of Defense is now leveraging remote work flexibility “to attract and retain those with the necessary skills and abilities needed to complete current and future missions.”

A necessary constraint is that contract fulfillment must be off-site “without mission degradation”. When regulatory requirements, including safety considerations, require on-site performance, COs have the right to request it.

The memorandum directs COs to follow Federal Acquisition Regulation (FAR) guidance when developing application requirements or evaluating offers that include telecommuting flexibility. Per FAR 7.108, agencies may not issue solicitations prohibiting “telecommuting” unless on-site performance is necessary to meet the agency’s requirements. Also, COs must not evaluate offers unfavorably because they include remote working options, unless the request includes the prohibition and documents the basis for the required on-site service. Finally, COs must also be aware of any occupancy limits issued by the local installation commander before requiring contractors to return to federal performance sites.

In summary, the Department of Defense has taken a liking to off-site contract fulfillment during the pandemic-driven quest for maximum telecommuting capacity. Remote work has not only increased the efficiency and effectiveness of missions, but has also brought new reservoirs of contractor talent within the reach of the Department of Defense. Now that many civilian federal employees are beginning to return to their offices, the Department of Defense is clearly in no rush to get contractors back on base. Certainly telecommuting keeps the lines at the lunch counter short.

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