Ҥ 2265. Special emergency reimbursement authority

“(a) Special emergency reimbursement authority.—

“(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary of Defense may, in accordance with this paragraphs (2) and subsection (c), modify the terms and conditions of a covered contract, without consideration, to reimburse a contractor for the cost of any paid leave, including sick leave, that such contractor provides to the employees or subcontractors (at any tier) of such contractor in response to a covered emergency to keep such employees or subcontractors in a ready state with respect to such covered contract.

“(2) REIMBURSEMENT REQUIREMENTS.—

“(A) ELIGIBLE EMPLOYEE AND SUBCONTRACT COSTS.—Reimbursements under this subsection may be made only with respect to employees of a contractor or employees of subcontractors (at any tier) of a contractor which, for the relevant covered contract—

“(i) are unable to perform work on a covered site due to facility closures or other restrictions; and

“(ii) cannot telework because the duties of such employee or contractor cannot be performed remotely.

“(B) AVERAGE HOURS.—The number of hours of paid leave for which the cost may be reimbursement under this subsection may not exceed an average of 40 hours per week per employee described in subparagraph (A).

“(C) BILL RATE.—The minimum applicable contract billing rate under the relevant covered contract shall be used to calculate reimbursements under this subsection.

“(b) Enhanced reimbursement for small business contractors.—

“(1) IN GENERAL.—In addition to any reimbursement under subsection (a), the Secretary of Defense may, in accordance with paragraph (2) and subsection (c), modify the terms and conditions of a covered contract, without consideration, to reimburse a small business contractor for costs, other than costs reimbursable under subsection (a), that are direct costs of a covered emergency with respect to which reimbursement is permitted under subsection (a).

“(2) LIMITATIONS.—The Secretary of Defense may reimburse a small business contractor under this subsection to the extent that the relevant contracting officer determines in writing that—

“(A) such reimbursement is necessary to ensure the continuation of contractor performance during, or the resumption of contractor performance after, the covered emergency;

“(B) the small business contractor mitigated the costs that may be reimbursed under this subsection to the extent practicable; and

“(C) it is in the best interest of the United States to reimburse such costs.

“(c) Reimbursement conditions.—

“(1) COST IDENTIFICATION.—A cost is eligible for reimbursement under subsection (a) or (b) only if the relevant contracting officer determines that the records of the contractor to identify such cost as a cost described in either such subsection such that such contracting officer may audit such cost.

“(2) OTHER FEDERAL BENEFIT OFFSET.—

“(A) IN GENERAL.—Any reimbursement under subsection (a) or (b) shall be reduced by an amount equal to the total amount of any other Federal payment, allowance, or tax or other credit received for a cost that is reimbursable under such subsection.

“(B) NOTIFICATION.—A contractor that receives a payment, allowance, or credit described in subparagraph (A) for a cost which such contractor seeks reimbursement under subsection (a) or (b) shall submit to the relevant contracting officer a notice of the receipt of such payment, allowance, or credit—

“(i) prior to the execution of a contract modification providing such reimbursement; and

“(ii) not later than 30 days after such receipt.

“(C) POST REIMBURSEMENT.—A contractor that receives a payment, allowance, or credit described in subparagraph (A) for a cost after the execution of a contract modification under subsection (a) or (b) reimbursing such cost, or that is unable to provide the notice required under subparagraph (B) in accordance with clause (i) of such subparagraph, shall—

“(i) not later than 30 days after the receipt of the payment, allowance, or credit, notify the relevant contracting officer in writing of such receipt; and

“(ii) agree to execute a contract modification to reduce the amount reimbursed under subsections (a) and (b) by the amount of such payment, allowance, or credit.

“(3) APPROPRIATIONS AVAILABILITY.—Reimbursements under subsections (a) and (b) shall be subject to the availability of appropriations.

“(d) Cost accounting standards.—For the purposes of this section, a cognizant Federal agency official shall provide a contractor subject to the cost accounting standards issued pursuant to section 1502 of title 41, United States Code, and required to submit one or more disclosure statements, a reasonable opportunity to amend any such disclosure statements to reflect any costs that are reimbursable under subsection (a).

“(e) Definitions.—In this section:

“(1) COGNIZANT FEDERAL AGENCY OFFICIAL.—The term ‘cognizant Federal agency official’ has the meaning given such term in section 30.001 of title 48, Code of Federal Regulations.

“(2) COVERED CONTRACT.—The term ‘covered contract’ means any contract, including a fixed-price or cost-reimbursement contract, or any other agreement for the procurement of goods or services by or for the Department of Defense.

“(3) COVERED EMERGENCY.—The term ‘covered emergency’ means an emergency or disaster, including an emergency or major disaster as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), which prevents the employees of a contractor of the Department of Defense or the employees of a subcontractor (at any tier) of such a contractor from performing work under a covered contract, as determined by the Secretary.

“(4) COVERED SITE.—The term ‘covered site’ means any government-owned, government-leased, contractor-owned, or contractor-leased facility approved by the Federal government for contract performance.

“(5) DISCLOSURE STATEMENT.—The term ‘disclosure statement’ means a Disclosure Statement described in section 9903.202–1(a) of title 48, Code of Federal Regulations.

“(6) MINIMUM APPLICABLE CONTRACT BILLING RATE.—The term ‘minimum applicable contract billing rate’ means a rate capturing the financial impact incurred as a consequence of keeping the employees or subcontractors (at any tier) of the contractor in a ready state, including the base hourly pay rate such employees and employees of such subcontractors, indirect costs, general and administrative expenses, and other relevant costs.

“(7) READY STATE.—The term ‘ready state’ means able to mobilize in a timely manner to perform under a covered contract.

“(8) SMALL BUSINESS CONTRACT.—The term ‘small business contractor’ means a contractor that is a small business concern (as such term is defined under section 3 of the Small Business Act (15 U.S.C. 632).”.