I can't seem to find the regulation that states contractors can't be in the government workplace when there are no government employees working in the building that day. I know I've seen it in writing but can't seem to find it now. Please help!
Thank you for your question. This is a frequent topic of discussion in many offices this time of year. In my experience, the fact that the contract is performance based is frequently overlooked in a service contract where contractor personnel and Government personnel work side-by-side. However, the contractual relationship is no different from a grounds maintenance contract where the contractor performs generally with minimal Government oversight, so Government presence is not a requirement. A more detailed analysis follows:
There are a few assumptions I will make to narrow the scope of the question:
1) the contractor employees are performing on a non-personal, performance based commercial service contract;
2) there is no language in the PWS addressing the Government will furnish a work site or that the contractor will perform at an alternate work site if the Government site becomes unavailable;
3) this is not for performance of classified or similarly sensitive work-product where Agency and/or local security policy direct Government employee presence;
4) the CLIN description or place of performance (section F of UCF) stated in the contract is the Government facility that will be closed for the holidays.
A review of FAR Part 37, DFARS Part 237, AFFARS Part 5337, and AFI 63-138 does not reveal any relevant guidance. Office of Federal Procurement Policy (OFPP) letter 93-1 is similarly silent, only establishing policy to ensure "Sufficient(ly) trained and experienced officials are available within the agency to manage and oversee the contract administration function". I could find no directive for government employees to be in a government work-place during performance. A directive of this nature, could lead one to believe the contractor is performing a personal service as the Government is required to be present to provide direction and oversight. AFFARS AFICC PGI 5337.503-90 contains a Personal Services Worksheet which may be a helpful reference.
In the absence of other guidance, this scenario would likely be considered a Government caused delay pursuant to FAR 52.212-4(f) (or FAR 52.249-14 if non-commercial). The place of performance is the Government location, and the Government is not making the location available. This could reasonably be considered a delay beyond the control of the contractor as an act of the Government in its contractual capacity.
Practically speaking, I have run into this situation several times over the years. The most common solution was for the contractor to have one person able to open the building or work space and they perform to their PWS (accomplishing PWS mandated training such as cyber-awareness, and other organizing/administrative tasks was a frequent attention of the contractor). The COR would then review the work product upon their return. Even when I worked in a secure area, the contractor opened the work spaces, accomplishing all necessary checks (applicable security procedures were included in the PWS by reference), worked to their PWS, then closed the space.
Hopefully this provides you with an answer. If you have further questions, please don't hesitate to reach out via AAP.