Since President Biden issued Executive Order 14042 (the “Order”), and the Safer Federal Workforce Task Force (the “Job Drive”) issued companion Guidance decoding the Order (our abstract of which might be discovered here), there have been further developments offering additional readability on the implementation of the required COVID-19 security protocols for federal contractors.

On September 30, 2021, the Federal Acquisition Regulation (“FAR”) Council issued a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042.  Since that date, numerous federal companies have issued class deviations to include required language into their lined contracts.  On October 4, 2021, the Job Drive up to date its FAQs on Vaccinations.

FAR Council Memo

The much-anticipated FAR Council Memorandum supplies federal companies that award contracts below the FAR with course for the incorporation of a clause into their solicitations and contracts to implement the necessities of the Order and Job Drive Steering (the “FAR Deviation Clause”).  The memorandum contains the language of the FAR Deviation Clause, which supplies, in related half:

  • Contractors topic to the FAR Deviation Clause should adjust to all guidance, together with steering conveyed via FAQs that could be amended throughout the efficiency of the contract, printed by the Job Drive.
  • Contractors should embrace the substance of the FAR Deviation Clause in, and move down its necessities to, all subcontracts of any tier that exceed the simplified acquisition threshold ($250,000) and are for providers, together with building, which might be carried out complete or partly inside the USA or its outlying areas.

The FAR Council Memorandum clarifies that the Clause should be included within the following solicitations and contracts for providers:

  • new contracts awarded on or after November 14, 2021 from solicitations issued earlier than October 15, 2021 (together with new orders awarded on or after November 14 from solicitations issued earlier than October 15 below current indefinite supply, indefinite amount (IDIQ) contracts);
  • new solicitations issued on or after October 15, 2021 and contracts awarded pursuant to these solicitations (together with new solicitations issued on or after October 15 for orders awarded pursuant to these solicitations below current indefinite-delivery contracts);
  • extensions or renewals of current contracts and orders awarded on or after October 15, 2021; and
  • choices on current contracts and orders exercised on or after October 15, 2021

Importantly, the memorandum reiterates the Job Drive Steering’s encouragement that companies embrace the COVID-19 security protocols and the FAR Deviation Clause in contracts and subcontracts not expressly lined by the Order, together with contracts which were or will likely be awarded previous to November 14 on solicitations issued earlier than October 15; and contracts that aren’t lined or instantly addressed by the Order, as a result of the contract or subcontract falls below the simplified acquisition threshold or is a contract or subcontract for the manufacturing of merchandise.

The FAR Deviation Clause, nevertheless, doesn’t apply to contracts with Indian Tribes below the Indian Self-Willpower and Schooling Help Act, or solicitations and contracts by which efficiency is outdoors the USA or its outlying areas.

The FAR Council directs companies to behave expeditiously to situation deviations in order that contracting officers could start to use the Clause on or earlier than October 15, 2021.  Pursuant to a September 30, 2021, letter from the Civilian Agency Acquisition Council (the “CAAC Letter”), companies that undertake the Clause with out change will likely be thought-about to have consulted with the CAAC Chair, as required by FAR 1.404(a)(1).

Class Deviations by Federal Companies

Following the FAR Council’s directive and the issuance of the CAAC Letter, numerous federal companies have since issued class deviations, together with the Department of Defense, the Department of Homeland Security, the Department of Justice, the Department of Veteran Affairs, the General Services Administration (“GSA”) (in addition to modification to the Multiple Award Schedule), the National Aeronautics and Space Administration, and the Millennium Challenge Corporation.

These class deviations present additional perception as to how particular person companies will strategy the Order and any mass modification program.  The GSA, particularly, supplies detailed info in its Class Deviation CD-2021-13 as to the scope, applicability, and implementation of the Order and its corresponding Steering.  To be able to simplify compliance monitoring, vendor communication, and buyer messaging efforts, the GSA will incorporate the Clause into all new and current contracts, together with contracts solely for merchandise.  The FAR Deviation Clause will likely be included into GSA contracts via a bilateral modification.

GSA contracting officers are requested to finish as many modifications as attainable earlier than November 14, 2021.  The GSA additionally supplies some perception as to potential interim penalties, at the very least with respect to IDIQ contracts, that aren’t returned signed by that date.  Contracting officers could quickly conceal contractor info on GSA web sites and/or e-tools, or flag contractors that haven’t accepted the modification.  Such actions might clearly affect potential new or further enterprise for contractors that haven’t signed the modification.

Job Drive FAQs

Along with the FAQs offered for federal contractors, the Job Drive additionally has up to date its FAQs concerning vaccination for federal employees.  Though these vaccination FAQs don’t apply on to federal contractors, they’re a helpful information to points that will likely be confronted by contractors in search of to adjust to EO 14042.

As an example, the FAQs tackle the concerns federal companies ought to bear in mind when figuring out whether or not an worker ought to be entitled to an exception to the vaccination requirement.  The FAQs instruct companies to think about “elements similar to the premise for the declare; the character of the worker’s job obligations; and the fairly foreseeable results on the company’s operations, together with defending different company staff and the general public from COVID-19.”  Workers who’re granted an exception “would [generally] have to comply with relevant masking, bodily distancing, and testing protocols for people who will not be absolutely vaccinated, in addition to relevant journey steering.”  However, in sure circumstances by which the company determines that no security protocol apart from vaccination would adequately shield coworkers, the company could deny the requested lodging.

In circumstances by which the company denies an exception, the worker should obtain their first (or, if a one-dose sequence, solely) dose inside two weeks of the denial, and the second dose (if relevant) inside 6 weeks of receiving the primary dose.  Workers that refuse vaccination are topic to self-discipline, as much as and together with termination of employment. The FAQs suggest the adoption of an enforcement course of that features a transient, five-day interval of training and counseling to encourage vaccination, adopted by progressive self-discipline that would come with a brief suspension of 14 days or much less.

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With October 15, 2021 nearly right here, and the opposite upcoming deadlines within the Steering, we anticipate additional clarifications from the Job Drive and particular person companies.  We are going to proceed to watch the continued developments on this space and stay out there to help corporations in figuring out the applicability and implementation of the Order’s necessities.