On September 9, 2021, President Biden issued an Executive Order ("the Order") pertaining to Covid-19 Safety Protocols for Federal Contractors and Subcontractors, which applies to any workplace location where an individual is working on or in connection to a Federal Government contract or contract-like instrument. The purpose of this Order is to ensure that all covered (as defined below) Federal contracts, subcontracts and contract-like instruments include a clause, requiring contractors to comply with the forthcoming COVID-19 guidance about to be issued by the Safer Federal Workforce Task Force ("the Task Force"). If you are a Federal government contractor or subcontractor, you'll want to pay close attention, because this is going to apply to you.
The Order requires the Task Force to issue workforce safety guidance related to Covid-19 by September 24, 2021. This guidance will provide definitions of relevant terms, explain what protocols are required of contractors to comply with the guidance, and list any exceptions to those requirements. The Order requires all executive agencies, to the extent permitted by law, to ensure that all contracts and contract-like instruments include a clause, ("the Clause") specifying that the contractor shall, for the duration of the contract, comply with all guidance issued by the Task Force (assuming that the Director of the Office of Management and Budget approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in Federal contracting.) The Order specifies that all contractors and subcontractors (at any tier), shall incorporate this Clause into lower-tier subcontracts – i.e. contractors and subcontractors will be required to "flow down" the Clause. The Order specifically notes that compliance with the Task Force's guidance does not excuse non-compliance with other applicable law, including state law and municipal ordinances, Federal laws, regulations or agency instructions establishing more protective safety protocols.
This Order pertains to new contracts/contract-like instruments, new solicitations for contracts/contract-like instruments, extensions or renewals of existing contracts/contract-like instruments, and exercises of options of existing contracts/contract-like instruments that are entered into after October 15, 2021, provided that the scope involves services, construction, leasehold interest in real property, services covered by the Service Contract Act, contracts for concessions, or contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public. Exempted from this Order are grants, contracts/contract-like instrument with Indian Tribes, contracts and subcontracts at or below the Simplified Acquisition Threshold, workplaces outside of the United States, and subcontracts solely for the provision of products. For existing contracts, the Order strongly encourages agencies to ensure its safety requirements are consistent with the Task Force's upcoming guidance. In the case of pending solicitations, amendment to incorporate the Task Force's guidance is not required, if the contract is awarded within 30 days of issuance of the guidance, but again, agencies are "strongly encouraged" to ensure that safety protocols are made consistent.
The Order instructs the Federal Acquisition Regulation (FAR) Council to amend the Federal Acquisition Regulation to incorporate the Task Force's forthcoming guidance and the Clause. More specifically, the Order instructs the Council to take initial action by October 8, 2021. (For those of you familiar with how long mandated FAR changes can actually take, you will understand why the Order further directs the Council to recommend agencies use their FAR 1.4 authority (to issue class deviations) to implement these actions.) Finally, the Order directs agencies to take action to include the Clause in contracts not subject to the FAR.
As set forth above, the Task Force's guidance is forthcoming. No specific protocols were laid out in the Order, and mandatory vaccination was not specifically mentioned. However, as many of you know President Biden recently issued another Executive Order mandating vaccination for Federal Employees. (For further guidance on that, check out my partner's blog). Moreover, the current tone from the administration seems to be leaning towards stronger vaccine mandates, though it is unclear how far that will extend. Until the Safer Federal Workforce Task Force issues its guidance, the new federal contractor workplace Covid-19 safety protocols, and their impact on existing and future contractual performance requirements, remains unknown. In any event it is safe to say that this is a critically important issue to stay on top of.
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