The Federal Acquisition Regulation (FAR) Council has issued a Deviation Clause that will implement President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (FAR Clause). The FAR Council appended the FAR Clause to its Guidance to federal agencies so that agencies can begin immediate incorporation of the Clause into solicitations and contracts (FAR Guidance), while the FAR Council undertakes the formal rulemaking process, including a notice and comment period, for development of a final FAR clause.
The FAR Guidance, requests contracting agencies to develop deviations allowing use of the new FAR Clause. Significantly, however, individual agencies are left to make their own determinations as to how expansively to include the Clause. As of this date, three of the largest contracting agencies—the Department of Defense (“DoD”), General Services Administration (“GSA”), and Veterans Affairs (“VA”) have all published deviations directing their contracting officers to incorporate the FAR Clause into solicitations and contracts.
While each of these groups follows the directives of the Executive Order and the FAR Guidance, there are subtle distinctions among the agencies on how far they will expand discretionary coverage. Contractors should carefully review the directives from each agency with which they contract to get a full sense of the likelihood of coverage.
The FAR Clause requires covered contractors to comply with the Executive Order and all guidance issued by the Safer Federal Workforce Task Force, including FAQs, “as amended during the performance of the contract,” but otherwise adds little clarifying information beyond the Executive Order and the Safer Federal Workforce Task Force (Task Force) Guidance. The Executive Order and the Task Force Guidance limit the vaccine, masking and distancing mandates to employees working in the United States and its outlying areas.
The FAR Clause defines these terms, consistent with Section 2.101 of the FAR, as:
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;
(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.
Section 5(b) of the Order excludes from coverage “employees who perform work outside the United States or its outlying areas…”
Contractors must include the FAR Clause in subcontracts at any tier that exceed the $250,000 simplified acquisition threshold if they are for “services, including construction, performed in whole or in part within the United States or its outlying areas.”
Despite the foregoing limitation to contracts for “services,” the FAR Guidance reiterates that agencies are, nonetheless, “strongly encouraged” to include the FAR 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.
As addressed previously, this extension of the possible coverage of the Executive Order and Task Force Guidance means that some contractors may not know for certain that they have a covered contract until the FAR Clause appears in a new contract or is incorporated as a modification to an existing contract.