NASA announced on March 17, 2020, that, “[e]ffective immediately, all [NASA] employees and contractors will move to mandatory telework until further notice” as a result of the COVID-19 (the coronavirus) pandemic, and that only “[m]ission-essential personnel” will be “granted access onsite.” In light of this development, government contractors performing work under NASA contracts that include the Denied Access to NASA Facilities clause (48 C.F.R. § 1852.242–72) should be mindful of both their obligations and their rights under this clause.
The Denied Access to NASA Facilities clause — which is to be included in all NASA “solicitations and contracts where contractor personnel will be working onsite at a NASA facility,” 48 C.F.R. § 1842.7001 — states, in full:
(a)(1) The performance of this contract requires contractor employees of the prime contractor or any subcontractor, affiliate, partner, joint venture, or team member with which the contractor is associated, including consultants engaged by any of these entities, to have access to, physical entry into, and to the extent authorized, mobility within, a NASA facility.
2. NASA may close and or deny contractor access to a NASA facility for a portion of a business day or longer due to any one of the following events:
(i) Federal public holidays for federal employees in accordance with 5 U.S.C. 6103.
(ii) Fires, floods, earthquakes, unusually severe weather to include snow storms, tornadoes and hurricanes.
(iii) Occupational safety or health hazards.
(iv) Non-appropriation of funds by Congress.
(v) Any other reason.
3. In such events, the contractor employees may be denied access to a NASA facility, in part or in whole, to perform work required by the contract. Contractor personnel already present at a NASA facility during such events may be required to leave the facility.
(b) In all instances where contractor employees are denied access or required to vacate a NASA facility, in part or in whole, the contractor shall be responsible to ensure contractor personnel working under the contract comply. If the circumstances permit, the contracting officer will provide direction to the contractor, which could include continuing on-site performance during the NASA facility closure period. In the absence of such direction, the contractor shall exercise sound judgment to minimize unnecessary contract costs and performance impacts by, for example, performing required work off-site if possible or reassigning personnel to other activities if appropriate.
(c) The contractor shall be responsible for monitoring the local radio, television stations, NASA Web sites, other communications channels, for example contracting officer notification, that the NASA facility is accessible. Once accessible the contractor shall resume contract performance as required by the contract.
(d) For the period that NASA facilities were not accessible to contractor employees, the contracting officer may—
- Adjust the contract performance or delivery schedule for a period equivalent to the period the NASA facility was not accessible;
- Forego the work;
- Reschedule the work by mutual agreement of the parties; or
- Consider properly documented requests for equitable adjustment, claim, or any other remedy pursuant to the terms and conditions of the contract.
(e) Notification procedures of a NASA facility closure, including contractor denial of access, as follows:
- The contractor shall be responsible for monitoring the local radio, television stations, NASA Web sites, other communications channels, for example contracting officer notification, for announcement of a NASA facility closure to include denial of access to the NASA facility. The contractor shall be responsible for notification of its employees of the NASA facility closure to include denial of access to the NASA facility. The dismissal of NASA employees in accordance with statute and regulations providing for such dismissals shall not, in itself, equate to a NASA facility closure in which contractor employees are denied access. Moreover, the leave status of NASA employees shall not be conveyed or imputed to contractor personnel. Accordingly, unless a NASA facility is closed and the contractor is denied access to the facility, the contractor shall continue performance in accordance with the contract.
- NASA’s Emergency Notification System (ENS). ENS is a NASA–wide Emergency Notification and Accountability System that provides NASA the ability to send messages, both Agency-related and/or Center-related, in the event of an emergency or emerging situation at a NASA facility. Notification is provided via multiple communication devices, e.g. Email, text, cellular, home/office numbers. The ENS provides the capability to respond to notifications and provide the safety status. Contractor employees may register for these notifications at the ENS Web site: http://www.hq.nasa.gov/office/ops/nasaonly/ENSinformation.html. (Emphasis added.)
If you have any questions about your company’s obligations and rights under the Denied Access to NASA Facilities clause, please do not hesitate to contact Aron Beezley, Bradley’s designated COVID-19 response team leader for government contracts.