Inquiry:
Can Federal contractors telework?
Response:
Since the Federal telework program and policies cover only Federal employees, Federal contractors are not governed by OPM and GSA telework guidance or by individual agency policies, and are not counted in the annual Telework Report to Congress.
However, this does not prohibit – and should not prevent – contract employees from actually teleworking, as appropriate.
Telework arrangements for contractors should be negotiated with both the contractor’s own employer and with the appropriate Federal agency official, so policies and procedures are in close alignment and all concerned parties are in agreement. Telework language may even be integrated into the contract itself.
Some additional questions and requirements to consider for telecommuting.
In accordance with section 1428 of Public Law 108-136, an agency shall generally not discourage a contractor from allowing its employees to telecommute in the performance of Government contracts. Therefore, agencies shall not—
(a) Include in a solicitation a requirement that prohibits an offeror from permitting its employees to telecommute unless the contracting officer first determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is permitted. The contracting officer shall document the basis for the determination in writing and specify the prohibition in the solicitation; or
(b) When telecommuting is not prohibited, unfavorably evaluate an offer because it includes telecommuting, unless the contracting officer first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is permitted. The contracting officer shall document the basis for the determination in writing and address the evaluation procedures in the solicitation.
Can the Contracting Officer’s Technical Representative (COTR) direct a contractor to provide a qualified employee be present if the contract requires performance at a Department facility?
If the contract requires performance at a Department facility, the COTR can require the contractor to provide a qualified employee. However, the COTR cannot require that a particular individual must come in, unless there is a contract requirement covering that individual. If the contract is silent or flexible on where/how the work is to be accomplished, the COTR cannot direct the presence of contractor employees. This is because the contractors are not Department employees and Department cannot “direct” them on how they will accomplish their work. However, a Component may consider modifying contracts to add a requirement for a contingency plan for “on-site” or “support” contractors when confronted with this issue.
If the government allows or requires federal employees to telework, will contractor employees who are required to perform at a Department facility be allowed to telework?
Companies performing Department contracts may permit, with Department permission, contractor employees to telework, if it is consistent with the work requirements of the contract, as long as the contractor employee still complies with contract requirements. If the contract requires a contractor employee to perform at the Department facility, he or she cannot be authorized to telework by either the company or by any Department employee without a contract modification to authorize it.
Can the COTR or Contracting Officer require a contractor employee who is required to perform at a Department facility to telework?
Ordinarily, no. If the contract requires performance at a Department facility and there is no provision for off-site work, it would require a contract modification to authorize a COTR to direct a contractor to have the contractor employee telework. For critical on-site or support contracts, it is advisable to explore contingency planning with the contractor to address this. If a contingency plan is developed that provides for off-site work (such as telework or work at a different facility), the special tasks it requires must be incorporated into the contract in order to be effective. This might require funds if there is a price impact or it might require future negotiation if the plan provides for a range of actions that are not settled in advance. Regardless, availability of funds must be considered before proceeding with new work requirements for a contractor. However, if a work requirement is incorporated into a contract that authorizes Department to require a contractor employee to telework, then the COTR may require it in accordance with that specific contract requirement.