On November 4, 2021, the White House extended the deadline for covered federal contractors to comply with the COVID-19 vaccine mandate established by the Safer Federal Workforce Task Force.1 Now, instead of being in compliance by December 2021, federal contractors have until January 4, 2022 to comply with the mandate. The White House expressed its desire to align the vaccine deadlines for covered federal contractors and those subject to the U.S. Department of Labor's Occupational Safety and Health Administration emergency rule.2
Per the Safer Federal Workforce Task Force Guidance
("Guidance") and Executive Order 14042, federal
contractors are subject to the vaccine mandate in three situations:
(1) new contracts entered on or after November 14, 2021, (2)
contracts entered between October 15 and November 13, 2021 where
the agency exercises its option to apply the requirement, and (3)
contracts where the federal government and prime contractor decide
to extend or renew a contract.
Importantly, the Guidance requires that primary covered federal contractors flow down the provision mandating the vaccine to their subcontractors. Contractors not subject to the Guidance may opt to comply; however, contractors' voluntary incorporation of the provision must meet the current contractual obligations to their subcontractors. To incorporate the mandate provision will most likely require bilateral modification, meaning both the primary contractor and subcontractor must agree to the incorporation. This is especially true for contracts involving commercial items.
For commercial item contracts, FAR 52.212-4 prohibits unilateral changes to the contract's terms and conditions, and that "[c]hanges in the terms and conditions of this contract may be made only by written agreement of the parties."3 Moreover, federal contractors should be aware of agency-specific bilateral modification requirements. Following the Class Deviation from the Federal Acquisition Regulation Regarding Implementation of Executive Order 14042, several agency deviations require bilateral modification for incorporation, such as the Department of Health and Human Services and the Department of Defense.4
As federal authorities continue to issue guidance, contractors should work with their legal teams to carefully review current contractual obligations to the government and their subcontractors and based on these obligations, determine next steps regarding incorporation of the mandate provision and what measures their organizations must take to become fully compliant by the newly extended deadline.
1. See Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, available at https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf.
2. See Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/; see also COVID-19 Vaccination and Testing; Emergency Temporary Standard available at https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard.
3. FAR 52.212-4(c).
4. See agency deviation letters at https://www.acquisition.gov/content/caac-letters; see also Department of Defense Class Deviation at https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf.
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