On September 30, 2021, the Civilian Agency Acquisition Council (CAAC) issued a formal Class Deviation from the Federal Acquisition Regulation (FAR), to implement rollout of the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The CAAC Class Deviation provides for inclusion of the following clause in all covered procurements:
52.223-99 ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (OCT 2021) (DEVIATION)
(a) Definition. As used in this clause –
United States or its outlying areas means—
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;
(4) The territories of American Samoa, Guam, and the United States Virgin Islands; and
(5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.
(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).
(c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.
(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.
The CAAC states that the clause is to be included in covered procurements starting on or after October 15, 2021, in new contracts awarded on or after November 14, 2021, or in extensions, renewals, or option exercises under existing contracts awarded on or after October 15, 2021. However, the CAAC also states that agencies can include this clause or its own FAR deviation clause in solicitations and contracts issued or awarded before these dates.
In implementing the rollout, the CAAC Class Deviation also provides that individual agencies also can issue their own FAR Class Deviations to implement the Executive Order and that such rollout can be broader than the Executive Order and implementing guidance issued by the Safer Federal Workforce Task Force (the “Guidance”).
The CAAC provides that agencies can expand the coverage of their clause to contracts below the Simplified Acquisition Threshold (SAT) of the FAR or that are contracts or subcontracts for manufacturing of products, even though they are not covered or directly addressed by the Executive Order.
FAR Class Deviations issued by the Department of Defense (DoD) (DARS 2021-O0009, dated October 1, 2021) and the General Services Administration (GSA) (CD-2021-13, dated September 30, 2021) take different tacks, and other agencies may as well. The DoD Class Deviation appears to track the CAAC clause by addressing new covered services (including construction) contracts above the SAT; it extends its coverage also to new orders issued under modified indefinite delivery/indefinite quantity (IDIQ) contracts that currently exist. However, the DoD Class Deviation also provides that the contracting officer can insert the clause into solicitations, contracts, or orders at or below the SAT, or for manufacturing of products. The GSA Class Deviation goes much further than the services identified in the Executive Order, Guidance, and CAAC Class Deviation. The GSA Class Deviation states that its clause will be applied to new GSA procurements and contracts and subcontracts for services, construction, or leasehold interest in property whether or not they exceed the SAT, and strongly encourages inclusion of the clause in contracts and subcontracts solely for the manufacturing of products. It states that the clause is not applicable to micro-purchases, site acquisition, sales of surplus real and personal property, contracts and subcontracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, and performed outside the US or its outlying areas. The GSA Class Deviation, with very narrow exceptions, states that it intends to cover all IDIQ contracts, including Federal Supply Schedule (FSS) contracts, even the ones only for manufacturing of products. Contractors that hold such FSS contracts and do not sign the modification incorporating the clause by November 14, 2021 will not be eligible for new orders, contract extensions, or option exercises for existing orders, according to the GSA Class Deviation. The GSA Class Deviation also states that it will take steps to temporarily hide contractor information on GSA websites and e-tools and flag contractors that have not signed the modification. Such action to remove a contractor’s right to sell or offer to sell its products and services to the government, without proper process, may result in a de facto debarment or suspension.
The Biden Administration and its agencies are poised to use an unusually heavy hammer to force contractors to accept the clauses and comply with their requirements. Challenges to the Executive Order are already in process, and there may be more specific challenges to agency implementation, raised to address specific cases, as agencies begin incorporating these clauses into solicitations, sending modifications to contractors for execution to incorporate them into existing contracts and orders, and taking steps to hide or flag contractors that have not executed their modifications by November 14th.