Court filing
Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 001 Att 02
Filed September 30, 2021 in Federal Contractor Mandates; one of 57 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the Eighth Circuit |
|---|---|
| Filed | 2021-09-30 |
U.S. Court of Appeals for the Eighth Circuit · No. 4:21-cv-01300-DDN · Doc. 1-2 · 2021-09-30 · Docket on CourtListener
Full text
September 30, 2021
MEMORANDUM FOR CHIEF ACQUISITION OFFICERS
SENIOR PROCUREMENT EXECUTIVES
DEFENSE ACQUISITION REGULATIONS COUNCIL
CIVILIAN AGENCY ACQUISITION COUNCIL
FROM:
Lesley A. Field
Acting Administrator
for Federal Procurement Policy
Office of Management and Budget
John M. Tenaglia
Principal Director, Defense Pricing and Contracting
Department of Defense
Jeffrey A. Koses
Senior Procurement Executive &
Deputy Chief Acquisition Officer
Office of Acquisition Policy
General Services Administration
Karla Smith Jackson
Senior Procurement Executive
Assistant Administrator for Procurement
National Aeronautics and Space Administration
SUBJECT: Issuance of Agency Deviations to Implement Executive Order 14042
The purpose of this memorandum is to provide agencies that award contracts under the
Federal Acquisition Regulation (FAR) with initial direction for the incorporation of a clause into
their solicitations and contracts to implement guidance issued by the Safer Federal Workforce
Task Force (Task Force) pursuant to Executive Order 14042 (“the order”).
Background
The order directs agencies to ensure that the parties that contract with the Federal
Government provide adequate COVID-19 safeguards to their workers performing on or in
connection with the contract to decrease the spread of COVID-19, reduce worker absence, lower
labor costs, and improve the efficiency of contractors and subcontractors at sites where they are
performing work.
On September 24, 2021, the Task Force issued guidance to implement the order, COVID-
19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. The Task Force
guidance requires:
LESLEY FIELD
Digitally signed by LESLEY FIELD
Date: 2021.09.30 16:48:42 -04'00'
Karla Jackson
Digitally signed by Karla Jackson
Date: 2021.09.30 16:53:01 -04'00'
TENAGLIA.JOHN.M.115494592
6
Digitally signed by
TENAGLIA.JOHN.M.1154945926
Date: 2021.09.30 17:04:52 -04'00'
DocuSign Envelope ID: 10A4FC98-0721-4A14-9A28-456B20F03FC8
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• All covered contractor employees to be fully vaccinated for COVID-19 by December 8,
2021, except in limited circumstances where an employee is legally entitled to an
accommodation;
• All individuals, including covered contractor employees and visitors, to comply with
published Centers for Disease Control and Prevention guidance for masking and physical
distancing at a covered contractor workplace, as discussed in the Task Force guidance;
and
• Covered contractors to designate a person or persons to coordinate implementation of and
compliance with the Task Force guidance and the required workplace safety protocols at
covered contractor workplaces.
Section 3(a) of the order directs the Federal Acquisition Regulatory Council (FAR
Council) to develop a contract clause requiring contractors and subcontractors at any tier to
comply with all guidance for contractor or subcontractor workplace locations published by the
Task Force and to provide initial policy direction to acquisition offices for use of the clause by
recommending that agencies exercise their authority under FAR subpart 1.4., Deviations from
the FAR.
Guidance
The FAR Council has developed the attached clause pursuant to section 3(a) of the order
to support agencies in meeting the applicability requirements and deadlines set forth in the order.
Contracting officers should follow the direction for use of the clause set forth in the deviations
issued by their respective agencies.
Agencies are reminded of the following points as they develop and issue their deviations:
1. Applicability and effective dates. In accordance with section 5 of the order, agencies are
required to include an implementing clause in solicitations and contracts for services, including
construction, in accordance with the following dates specified in section 6 of the order:
• new contracts awarded on or after November 14 from solicitations issued before October
15 (this includes new orders awarded on or after November 14 from solicitations issued
before October 15 under existing indefinite-delivery contracts);
• new solicitations issued on or after October 15 and contracts awarded pursuant to those
solicitations (this includes new solicitations issued on or after October 15 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.
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To maximize the goal of getting more people vaccinated and decrease the spread of
COVID-19, the Task Force strongly encourages agencies to apply the requirements of its
guidance broadly, consistent with applicable law, by including the clause in:
• contracts that have been or will be awarded prior to November 14 on solicitations issued
before October 15; and
• contracts that are not covered or directly addressed by the order because the contract or
subcontract is under the simplified acquisition threshold or is a contract or subcontract for
the manufacturing of products.
2. Exclusions. The clause shall not be applied to:
• contracts and subcontracts with Indian Tribes under the Indian Self-Determination and
Education Assistance Act (the exclusion would not apply to a procurement contract or
subcontract under the FAR to an Indian-owned or tribally-owned business entity); or
• solicitations and contracts if performance is outside the United States or its outlying areas
(the exclusion is limited to employees who are performing work only outside the U.S. or
its outlying areas).
3. Timing of deviations. Agencies should act expeditiously to issue their deviations so
that their contracting officers may begin to apply the clause on or before October 15, as
explained above. Agencies should review, and update as necessary, any relevant guidance
previously provided to contractors to ensure consistency with the deviated FAR text.
4. Civilian agency coordination of deviations. Civilian agencies that adopt the attached
clause language without change in their deviations will be presumed to have consulted with the
Chair of the Civilian Agency Acquisition Council (CAAC) required by FAR 1.404(a)(1).
However, if a civilian agency intends to use clause text different than the deviated clause text
provided, the agency must consult with the CAAC Chair, William Clark, who will consult with
OMB and the Task Force to ensure consistency with Administration policy. Any such request
must be emailed to william.clark@gsa.gov.
Once processed, agencies are requested to share the deviation widely among their
workforces to ensure full awareness of, and compliance with, the order.
Civilian agencies should furnish a copy of their approved class deviations (including
direction to the workforce, prescription for use of clause, and clause text) to the FAR Secretariat,
General Services Administration, by emailing the deviation to GSARegSec@gsa.gov. Agencies
must submit their class deviations no later than October 15, 2021.
5. Length of deviation. The FAR Council has opened a case (FAR Case 2021-021,
Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors) to make appropriate
amendments in the FAR to reflect the requirements of the order. Agencies are encouraged to
make their deviations effective until the FAR is amended or the deviation is otherwise rescinded
by the agency.
Attachment
DocuSign Envelope ID: 10A4FC98-0721-4A14-9A28-456B20F03FC8
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FAR Deviation Clause
Executive Order 14042
Ensuring Adequate COVID Safety Protocols for Federal Contractors
Baseline is FAC 2021-07, published in the Federal Register on August 11, 2021.
September 24, 2021
PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
*****
Subpart 52.2—Text of Provisions and Clauses
*****
[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors.
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).
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(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.
(End of clause)]
*****
DocuSign Envelope ID: 10A4FC98-0721-4A14-9A28-456B20F03FC8
Case: 4:21-cv-01300-DDN Doc. #: 1-2 Filed: 10/29/21 Page: 5 of 5 PageID #: 63File and source
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