DATE: April 28, 2020
SUBJECT: Guidance for using DOE’s Clauses developed to implement Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. No. 116-136)
This Flash slightly revises Policy Flash 2020-22 “Guidance for using DOE’s Clauses developed to implement Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. No. 116-136)” to reflect additional OMB guidance. It provides guidance to Contracting Officers regarding implementing Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act in contracts. In addition, it provides additional guidance to Contracting Officers to that provided in Policy Flash 2020-18 “Initial Guidance Regarding Actions to Address Effect of Coronavirus Disease 2019 (COVID-19)” issued on March 13, 2020.
Section 3610 of the CARES Act gives agencies the authority to modify the terms and conditions of a contract, or other agreement, without consideration but precluding additional profit or fee. The guidance in this Flash was formulated, consistent with the requirements of both Section 3610 and final OMB guidance, for contracts. This does not preclude application of Section 3610 to other agreements. Determinations regarding the application of Section 3610 to other agreements may be made on a case-by-case basis in consultation with cognizant program officials and legal counsel.
There are two attachments: 1) guidance to Contracting Officers on implementation of the CARES Act; and 2) clauses that may be used in cost reimbursement-type contracts and in fixed-price/time-and-materials type contracts.
This Flash revises Policy Flash 2020-22 to change reporting requirements and proscribe any additional profit or fee. The revisions in attachment 1 occur at: A. Summary, paragraph 3; and B. Guidance, paragraph 3. The revisions in attachment 2 occur at: in the cost-reimbursement type contracts clause, at paragraph (a); and in the fixed-price/time-and-materials type contracts clause, at paragraph (a).
Contracting Officer Questions concerning this policy flash should be directed to the Contract and Financial Assistance Policy Division at DOE_oapmpolicy@hq.doe.gov