Government Acquisition Council Provides Preview of Vaccine Mandate Clause for Federal Contractors | Snell & Wilmer

[co-author: Charlene Warner]

Yesterday, the Civilian Agency Acquisition Council (CAAC) issued guidelines mandating a class deviation from the Federal Acquisition Regulations (FAR) to implement President Biden’s vaccine mandate for certain state contractors. This derogation will allow civil authorities that administer government contracts to include the mandatory clause in those contracts as permitted in the text of President Biden’s Executive Order 14042 (Order). Because there is significant confusion surrounding vaccine mandates, government contractors should take this opportunity to ensure actual application to business operations and possible responses to the impact on work.

As a background, President Biden issued the order on September 9, 2021, which obliges those involved in the procurement of the federal government to take certain procedural guarantees to ensure that contractors and subcontractors are “adequately” protected from the COVID-19 pandemic. In connection with the ordinance, the Safer Federal Workforce task force issued corresponding guidelines on September 24, 2021, by December 8, 2021 at the latest.

The contract mainly relates to service contracts and includes in its scope new contracts, new tenders for a contract as well as extensions, extensions or exercised options of existing contracts, which (1) services, construction or a leasehold to real estate (2) services, which after the Service Contract Act, (3) concessions or (4) contracts for services that concern the federal state and relate to federal employees, their relatives or the public. Agencies that manage contracts that are not covered by the regulation, such as B. Those requested before October 15, 2021, are strongly recommended to use the same security protocols as new contracts.

The CAAC guidelines released yesterday now provide the wording that agencies can incorporate into their contract as a derogation from the FAR, while the entire FAR Council is considering adopting a formal clause through traditional methods. Meanwhile, the derogation issued by the CAAC provides a comprehensive and ongoing mandate to all government contractors whose language is included in their contracts.

In particular, the proposed clause implements “Executive Order 14042” and, if implemented, requires each contractor to comply with the order and “publish all instructions conveyed by Frequently Asked Questions, as amended during the execution of this contract… from the Safer Federal Workforce Task ”. Power. “(Emphasis added) The proposed wording also includes a mandatory” flow-down “provision for all subcontracts exceeding the simplified acquisition threshold applicable to services, including construction, performed in whole or in part in the United States This proposed derogation clause is the potentially ongoing obligation of any contractor to adhere to guidelines that may be updated even after the clause is inserted into a contract (i.e. a self-implementing unilateral change that would not be made by specific, blanket or other changes) would be an unprecedented development in public procurement. In addition, there does not appear to be any limit on when the Safer Federal Workforce must stop updating its guidelines, but contractors are required to comply with these guidelines in the company as it changes ssung responsible.

Again, contractors may not see the exact language that is included in every government contract. As noted by the CAAC, any civil authority can “decide” to adopt the proposed derogation clause with or without amendment. Therefore, each agency may use a different language than the derogation for their agency contracts, subject to approval by the CAAC. Government contractors should closely monitor the actual language in their respective contract as that language may differ between agencies until the FAR Council adopts a single clause.

Any government contractor facing the extensive requirements of Executive Order 14042 and this new derogation should be aware of when and how the required contractual clauses will affect their contracts. This includes monitoring ongoing guidance as updated by the Safer Federal Workforce Task Force and carefully assessing the adequacy of the agency’s efforts to include implementation clauses. Contractors and subcontractors should consider ensuring written guidance on how to respond to these vaccine requirements, carefully documenting the myriad of potential costs associated with mandatory compliance to support potential future requests for equitable adaptation, and providing clear guidance to the staff concerned place.

Footnotes:

2. https://www.acquisition.gov/content/caac-letters.
3. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/.
4. https://www.saferfederalworkforce.gov/contractors/