The Department of Defense (DoD) and the Civilian Agency Acquisition Council (CAAC) have both issued new Class Deviations from the FARs that implement Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (i.e., the federal contractor vaccine mandate).  

Both of the Class Deviations include the contract clause that will be added to federal contracts in order to implement the Executive Order mandating that federal contractors and subcontractors at any tier comply with all guidance for contractor or subcontractor workplace locations as published by the Safer Federal Workforce Task Force:

52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors.

ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (OCT 2021) (DEVIATION)

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.

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).

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.

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.

Notably the contract clause does nothing more than require the contractor to comply with the guidance and FAQ located at https:/www.saferfederalworkforce.gov/contractors. It does not seek to expand the scope of that guidance, either in terms of its substance or its reach to affiliates, parent companies, or holding companies.

The DoD and CAAC also included language specifying when the clause will be added to contracts. The clause will be added as follows:

• For DoD contracts, the clause will be added to:
  • Solicitations issued on or after October 15, 2021, and contracts, task orders, and delivery orders awarded pursuant to those solicitations, that are expected to exceed the simplified acquisition threshold (SAT).
  • Contracts, task orders, and delivery orders, awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, that exceed the SAT.
  • All extensions or renewals, issued on or after October 15, 2021, of contracts, task orders, and delivery orders that exceed the SAT.
  • All options exercised, on or after October 15, 2021, on contracts, task orders, and delivery orders that exceed the SAT.
  • Existing indefinite-delivery, indefinite-quantity contracts that are anticipated to have orders that exceed the SAT and that have an ordering period that extends beyond October 15, 2021.

Of note, if you have a MAC or IDIQ and a task order or delivery order is issued under that MAC/IDIQ after November 14, 2021, that task order/delivery order may have the contract clause added to it when it is issued.

• CAAC: For non-DoD contracts, the clause will be added to:
  • new contracts awarded on or after November 14, 2021, from solicitations issued before October 15, 2021 (this includes new orders awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, under existing indefinite-delivery contracts);
  • new solicitations issued on or after October 15, 2021, and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15, 2021, for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
  • extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
  • options on existing contracts and orders exercised on or after October 15, 2021.

Both DoD and CAAC Class Deviations also recognize that the exemption of ISDEAA contracts from the scope of the Executive Order does not exclude entities with an ISDEAA contract from being covered by the vaccine mandate, if that entity has a non-ISDEAA procurement contract with the federal government. As noted in both Class Deviations: “contracts and subcontracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638) (the exclusion would not apply to a procurement contract or subcontract under the FAR to an Indian-owned or tribally-owned business entity).”

We recommend that federal contractors and subcontractors start to immediately prepare to comply with the guidance for contractor or subcontractor workplace locations as published by the Safer Federal Workforce Task Force, including development of policies concerning the COVID-19 vaccination requirement and the process for evaluating requests for medical and religious exemptions.