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Guidance on Section 3610 of the CARES Act for FAS Indefinite Delivery Vehicles (e.g. Schedules, GWACs, etc.)

Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act permits government agencies to reimburse at the minimum applicable contract billing rates, any paid leave, including sick leave, a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of government and contractor personnel, during the COVID-19 public health emergency for the period March 27, 2020 through September 30, 2020 (not to exceed an average of 40 hours per week).

What is the Guidance on Section 3610 for Customers or Agency’s using FAS Indefinite Delivery Vehicles? 

The most efficient and effective method of implementing Section 3610 of the CARES Act is for ordering agencies of GSA Indefinite Delivery Vehicles (IDVs) (e.g. Schedules, GWACs, etc.) to modify existing orders to provide for this emergency authority if the ordering agencies believe doing so is in the best interests of the government to meet their mission requirement as delineated in the statute.

Because this authority is authorized but not mandated, agencies must make their own determination as to whether using this authority on GSA IDVs is necessary. Ordering agencies, as opposed to GSA, have the specific facts about their orders to determine whether a determination to use the authority meets the prerequisites of the statute (see OMB guidance - M-20-22) and can be documented. Only ordering agencies can determine the funding they have available, the impact of funding or not funding additional paid leave and the mission impact of each alternative to exercising this authority. Finally, only ordering agencies can determine if reimbursement for paid leave to keep the contractor in a ready state is in the best interest of the government, consistent with the stewardship principles and limitations in Section 3610 of the CARES Act.

Frequently Asked Question

Question: How can Section 3610 of the CARES Act be implemented on GSA IDVs such as Schedules, GWACs, etc.?

Answer:  Ordering agencies who have an existing order off of a GSA IDV such as Schedule, GWACs, etc. may exercise the authority provided in section 3610 of the CARES Act, subject to OMB guidance and their own agency requirements, but are not required to do so. Prior to exercising this authority, ordering agencies shall carefully consider if reimbursement for paid leave to keep the contractor in a ready state is in the best interest of the Government, consistent with the stewardship principles and limitations in section 3610 of the CARES Act, OMB guidance, and any applicable agency guidance. If the ordering agency decides to exercise this authority, then the ordering agency should follow all of their applicable agency guidance and should consult their counsel. If the ordering agency does not have a policy implementing Section 3610 authority, but wishes to authorize reimbursement of paid leave, the contracting activity may follow the guidance in GSAR Class Deviation 2020-12. Pursuant to the statute, an agency may be able to exercise this authority by modifying an existing order. Prior to modifying and in accordance with the applicable agency guidance, an Ordering Contracting Officer shall ensure that funds are available; cite the applicable FPDS Covid-19 NIA code; ensure the labor rates shall not include profit or fees; ensure reimbursement will not exceed an average of 40 hours per week for each billed contract employee; and include language that the contractor agrees that any amount received based on the exercise of this authority shall be reduced by the amount of credit a contractor is allowed pursuant to division G of Public Law 116–127 and any applicable credits a contractor is allowed under this Act, and any other applicable agency guidance. Because Section 3610 specifies use of “minimum applicable contract billing rates”, (e.g. Federal Supply Schedule, GWAC) rates would not change. If the ordering agency negotiated a lower hourly rate, then that lower hourly rate becomes the minimum applicable contract rate for the purpose of section 3610 reimbursements.

 

Please leave any questions or feedback as a comment on this post. As always, we thank you for your continued partnership.

 

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