The DIB as Critical Infrastructure during COVID19
COVID-19 has proven to be a teachable moment. Years ago, the federal government designated the defense industrial base as “critical infrastructure.” However, until now, the issue of whether all contractors and subcontractors within the “Defense Industrial Base” (“DIB”) qualify as “critical infrastructure,” or interchangeably “essential businesses,” held such status had not been answered. Recent policy guidance and targeted relief programs have shown that federal authorities are putting effort and resources behind the label.
State governors across the nation enacted stay at home orders and closure of “non-essential businesses” in response to the COVID-19 crisis. Even as the nation begins to reopen many of these orders remain in effect. Many states have relied on federal guidance and have exempted “critical infrastructure” facilities and their workers from their stay at home orders. The U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (“CISA”) identifies 16 critical infrastructure sectors, defined as possessing physical or virtual assets vital to sustaining any aspect of national security, health, or safety. CISA includes the DIB as a critical infrastructure and defines the critical DIB workforce as those workers performing any tasks related to manning, training, equipping, deploying, or supporting military forces.
The CISA definition of the critical defense workforce conflicts with a broader definition offered by the Department of Defense. In a memo released on March 23, 2020, Ellen Lord, the Under Secretary of Defense for Acquisition and Sustainment, clarified that businesses and workers performing “research, development, design, production, delivery, and maintenance of military weapons systems/software systems, subsystems, and components or parts, as well as purchased services to meet U.S. military requirements” constitute critical infrastructure. By contrast, those firms providing office supplies, recreational support, lawn care or other similar activities are not considered part of the critical infrastructure workforce. Lord’s memo encouraged companies whose work aligns with critical infrastructure to continue to maintain normal work schedules. Additionally, the Defense Contract Management Agency has extended support to DIB businesses that maintain operations during the crisis.
Consequently, contractors and subcontractors in the DIB performing essential tasks supporting the military are permitted to stay open and continue working, but also have a responsibility to do so in order for the U.S. military to maintain force readiness across all branches. However, not all tasks performed by DIB contractors and subcontractors are automatically part of the critical infrastructure workforce. The Lord memo denotes that nonessential tasks are tasks not directly related to the warfighting mission are not considered critical infrastructure. For example, a contractor cutting grass for aesthetic reasons under a DOD contract may not part of the critical infrastructure workforce. However, a contractor cutting grass in order to maintain an approach to a military airfield would undoubtedly be part of the critical infrastructure workforce.
U.S. Army Acquisition chief Dr. Bruce Jette explains that industry has gone through a learning process during the COVID-19 crisis to navigate a path between the health and safety needs of workers, and regulatory compliance pressures from federal guidelines like the CISA guidelines, the Lord Memo and relevant state governmental decrees. Since March 2020, state governments have issued over 300 emergency executives actions ordering closure of schools, businesses, and public gatherings. The National Council of State Legislatures reports that 42 states issued guidance defining “essential workers,” including 22 states that generated their own list of critical sectors. Not surprisingly, at peak, 248 defense contractor facilities had closed. By mid-May, however, only 40 remained closed.
With the daily rate of new COVID-19 cases declining nationwide, DoD is preparing plans for reopening, which will include recommendations for contractors to carefully increase operations and to implement extensive workforce health protection measures.