CARES Act Authorization for Expanded Leave Costs for Certain Contractor Employees

The CARES Act (March 27, 2020) Section 3610, authorized agencies to use funds from any appropriations act to supplement contract payments to reimburse for expanded leave payments to contractor employees, made to keep a contractor’s workforce in a “ready state,” for those contractors whose employees are prevented by any shut-down order due to COVID-19, from accessing their contractor designated and government approved place of work, and are unable to telework. Agencies are authorized but not required to provide the supplemental contract payments, but must do so “without consideration” by the contractor - not required to give anything back in return. The amount of payment to the contractor is limited by any other credit taken under the CARES act (which would include the Payroll Protection Program) or the FFCRA (emergency paid leave). The period of applicability is January 31, 2020 – September 30, 2020. On April 8, 2020, the DARC issued Class Deviation 2020-O0013, which introduced DFARS 231.205-79 CARES Act Section 3610 – Implementation, for DoD contracts. The Class Deviation communicates DoD’s intent to make the payments subject to funding availability, instructs contracting officers to certify contractor need, and sets out the standards for applicability to DoD contracts - which include any type of contract, and reducing the amount of allowable payments by any other legally authorized credit taken by the contractor related to COVID-19, including the amount of a loan under the Payroll Protection Program credited to the contract (whether forgiven or not). [See DoD Guidance on same (April 9, 2020) and DoD FAQ on same (updated April 17, 2020, and DPC COVID-19 page with link to current FAQ).]