USAID Provides COVID-19 Guidance to Partners and Contractors

Federal contractors, grantees and cooperative agreement holders performing work overseas face enormous and broad-ranging challenges related to their work and the impacts of the coronavirus (COVID-19) pandemic. These include issues of managing workforces operating overseas, particularly in a time of travel restrictions, and of course, fulfilling mission requirements including those related to COVID-19 crisis overseas. Entities which partners with the U. S. Agency for International Development (USAID) are at the forefront of these efforts and face unique challenges and considerations.

USAID's March 18 Guidance Call

On March 18, USAID convened a worldwide teleconference to provide guidance to its partners and contractors regarding the COVID-19 pandemic. The main purpose of the call was to address a number of questions that USAID has received from its partners. Below are the relevant points of information that were provided during the call:

• In terms of USAID's general efforts in connection with the pandemic, the agency has initiated an internal task force focused on issues relating to COVID-19, which is headed by a physician from the U.S. President's Malaria Initiative.
• USAID has already committed about $37 million regarding COVID-19 response measures, with other tranches of money being announced soon.
• In order to address issues relating to COVID-19, approximately $965 million has been committed to USAID by the U.S. Office of Management and Budget (OMB). This money is being allocated into three separate tranches: 1) ongoing efforts in multiple countries to respond to the COVID-19 outbreak right now; 2) efforts to mitigate the humanitarian consequences of the COVID-19 outbreak; and 3) efforts to mitigate the economic impacts of the outbreak. USAID is currently working on an outline for the distribution of these funds, and this outline will be presented for congressional approval in the next couple of days.
• USAID is not making any uniform determinations or announcements at this time regarding changes to business forecasts or solicitation schedules/timelines. These issues will be dealt with on a case-by-case basis, and partners should communicate and coordinate with their individual contracting officers to raise any necessary modifications that the partners believe should be made.
• USAID has adaptive procedures and crisis modifiers already built into many of its contract awards, and these provisions are being put into place in many cases. Partners should seek guidance from their respective contracting officers as to how these specific measures are being put into place.
• USAID has created an Expedited Procurement Policy (EPP) that will allow USAID to make awards relating to the COVID-19 response on a more expedited basis, and which will modify many of the usual procurement procedures. A draft of the EPP is currently sitting with the USAID executive secretary and will be released by the end of this week.
• As far as departures or evacuations from countries, USAID's mission directors are authorized to determine the necessity of any evacuations on a country-by-country basis, but there has been no blanket determination for all USAID contractors.
• Partners may bill USAID for cancellation or postponement costs relating to cancelled travel and hotel stays, but these payment determinations will be made on a case-by-case basis, with the recommendation of the specific contracting officer. USAID urges its partners to mitigate these costs to the largest extent possible, including engaging in communications with airlines and hotel companies who are at this time offering various relief methods to lower cancellation costs. USAID is not making any blanket determinations regarding cost reimbursement, and all costs for which partners are seeking reimbursement must be contemporaneously documented in writing, maintained by the partner and submitted in writing to the relevant contracting officer.
• The March 9, 2020, OMB Memo regarding the waiver of approval requirements only applies to awards directly related to the COVID-19 response efforts. All other USAID awards still maintain all of their required approvals. If a partner, however, believes that a certain exception or waiver should apply during this outbreak, USAID has the authority to provide these exceptions on a case-by-case basis.
• USAID cannot repurpose funds without congressional approval. However, if there are funds already within a contract that can be moved and should be moved in connection with COVID-19 effects, the relevant contracting officer can make that determination on a case-by-case basis.
• USAID is exploring whether any number of blanket modifications would be helpful in reducing duplicative inquiries or whether blanket adjustments to timelines or targets are necessary. However, at this time, no such determinations have been made.

A full transcript of the call and a frequently asked questions sheet will soon be sent to all of USAID's existing partners through established email lists. If an interested party is not on one of these already established email lists and would like to receive a copy of the call transcript, send an email to industryliason@usaid.gov.

Broad Takeaways for Contractors and Recipients

As a general matter, contractors and recipients should keep the following high-level principles in mind:

• Review agreements and program documents carefully. Among other things, pay close attention to terms and conditions regarding excusable delays, including force majeure, stop work, suspension of work, termination provisions, and provisions regarding changes to the agreements and the ability to recover costs associated with such changes.
• Review subcontracts and subrecipient agreements for these same issues.
• Document all impacts on performance, costs and so on.
• Communicate regularly with your agency customer and with teaming partners.
• Be mindful of notice requirements in the various agreement terms, conditions and clauses to ensure your rights under agreements are preserved and properly asserted.

For more information, please see Holland & Knight's webinar, "GovCon and COVID-19 – What You Need to Know." Please also stay tuned for a subsequent post on OMB's recent memo regarding two CFR requirements applicable to federal assistance recipients. You can find more information regarding the impact of COVID-19 on contractors and assistance recipients on our blog.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.