On Sept. 30, 2021, the FAR Council issued a deviation clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols For Federal Contractors. It is intended to implement both Executive Order 14042 (the EO) and the Safer Federal Workforce Task Force’s Sept. 24 Contractor Guidance, which we discussed in our last update. When included in a federal contract, the new clause requires contractors to “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.” This clause must be flowed down to subcontractors at every tier, where the value of the subcontract exceeds the Simplified Acquisition Threshold ($250,000).
The FAR Council also provided further guidance for agencies and contracting officers regarding when the clause should be implemented. This includes mandatory inclusion of the clause in: (1) new solicitations issued on or after Oct. 15 (including task order solicitations) and any resulting contracts; (2) new contracts awarded on or after Nov. 14 (including orders under IDIQ contracts), even if the solicitation was issued before Oct. 15; (3) extension or renewals of contracts or orders awarded on or after Oct. 15; and (4) options on all contracts and orders that are executed on or after Oct. 15.
To further the administration’s “goal of getting more people vaccinated and decreas[ing] the spread of COVID-19,” agencies are “strongly encouraged” to include the clause in existing contracts and those not directly covered by the EO (i.e., contracts below the Simplified Acquisition Threshold or for the manufacturing of products).
The Department of Defense (DoD) and General Services Administration (GSA) have already issued class deviations and guidance for implementation of the EO as well. The GSA deviation provides that contracting officers “shall send a cover letter and modification request to add the clause FAR 52.223-99 for existing contracts,” including IDIQ contracts (emphasis added). It also includes a sample cover letter, noting that the clause is mandatory for Federal Supply Schedule contractors. If a contractor does not agree and sign the modification by Nov. 14, 2021, the GSA can take action such as “temporarily hiding contractor information on GSA websites and/or e-tools” or “flagging contractors that have not accepted the modification.”
The DoD deviation, DFARS 252.233-7999, Ensuring Adequate COVID-19 Safety Protocols For Federal Contractors, Deviation 2021-O0009, contains identical language to the FAR deviation clause. However, the DoD deviation requires contracting officers to use a bilateral modification when incorporating the DFARS clause into existing contracts, task orders, or delivery orders. Should the modification also include standard release language, contractors may consider including a statement to reserve their rights to recover related costs. For example, contractors may include a statement that “[n]othing herein shall be considered a release of the contractor’s right to make a claim seeking compensation and/or schedule relief associated with complying with this new clause.” While contractors may never pursue any such claims, at present the extent of costs to comply with this clause are largely unknown.
Additionally, the Civilian Agency Acquisition Council issued a memo to all civilian agencies requiring the inclusion of the clause as noted in the FAR Council document, and “encouraging, but not requiring” insertion in existing contracts.
The FAR Council’s case on a permanent clause is currently open as FAR Case No. 2021-21, and is currently scheduled for a report on Nov. 17, 2021.
Taft’s Government Contracts and Employment Law teams will continue to monitor this situation and provide updates.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.