[co-author: Charlene Warner¹]

Late yesterday, the Civilian Agency Acquisition Council (CAAC) released guidance prescribing a class deviation from the Federal Acquisition Regulations (FAR) in order to implement President Biden’s vaccine mandate for certain federal contractors. This deviation will allow civilian agencies administering government contracts to begin inserting the prescribed clause into these contracts as allowed by the text of President Biden’s Executive Order 14042 (Order). As there is significant confusion related to vaccine mandates, government contractors should take this opportunity to ensure actual application to business operations and potential responses to addressing impacts on labor.

By way of background, on September 9, 2021, President Biden issued the Order requiring those involved in Federal government procurement to implement certain procedural safeguards intended to ensure that contractors and subcontractors are “adequately protected” from the COVID-19 pandemic. In conjunction with the Order, the Safer Federal Workforce Task Force issued relevant guidance on September 24, 2021. In effect, the Order requires that executive departments and agencies ensure that all contracts covered by the Order include a clause that contractor employees be fully vaccinated no later than December 8, 2021.

The Order addresses primarily service contracts and includes within its scope new contracts, new solicitations for a contract, and extensions, renewals, or exercised options of existing contracts that involve (1) services, construction, or a leasehold interest in real property, (2) services provided under the Service Contract Act, (3) concessions, or (4) contracts offering services involving federal land and related to federal employees, their dependents, or the general public. Agencies administering contracts not covered by the Order, such as those solicited before the effective date of October 15, 2021, are strongly encouraged to apply the same safety protocols applied to new contracts.

The CAAC guidance issued yesterday now provides the language for agencies to insert into their contract as a deviation from the FAR while the full FAR Council considers adopting a formal clause through traditional methods. In the meantime, the CAAC-issued deviation provides an expansive and continuing mandate to all government contractors that find its language inserted into their contracts.

Specifically, the suggested clause “implements Executive Order 14042” and, if implemented, requires each contractor to comply with the Order and “all guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract… published by the Safer Federal Workforce Task Force.” (emphasis added) The suggested language also includes a mandatory "flow down" provision to all subcontracts in excess of the simplified acquisition threshold that are for services, including construction, performed in whole or in part within the United States. This suggested deviation clause is the potentially continuing obligation of every contractor to comply with guidance that may be updated even after the clause is inserted into a contract (i.e., a self-executing unilateral change that would not be done via specific modification, blanket or otherwise). This would be an unprecedented development in government contracting. Furthermore, there does not appear to be any limitation on when the Safer Federal Workforce Task Force must stop updating their guidance, yet contractors are responsible for compliance with such guidance as it may be amended.

Again, contractors may not actually see this exact language inserted into each government contract. As noted by the CAAC, each civilian agency may “choose” to adopt the suggested deviation clause, with or without modification. Thus, each agency may choose to adopt different language than the deviation for their agency contracts, subject to approval by the CAAC. Government contractors should closely monitor the language actually inserted in their respective actual contract, as such language may differ between each agency until the FAR Council adopts a uniform clause.

Any government contractor that needs to comply with the expansive requirements in Executive Order 14042 and this new deviation should be aware of when and how the required contract clauses will affect their contracts. This will include monitoring the continued guidance as updated by the Safer Federal Workforce Task Force and carefully assessing the appropriateness of agency efforts to include implementing clauses. Contractors and subcontractors should consider ensuring written guidance concerning how to respond to these vaccine requirements, carefully document the myriad potential costs associated with mandated compliance in order to potentially support future requests for equitable adjustment, and provide clear guidance to impacted employees.

Footnotes:

1. Charlene Warner is a 2021 graduate of University of Southern California, Gould School of Law and her admission to practice law is currently pending.
2. The letter, titled “Class Deviation From Federal Acquisition Regulation Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors” is available at https://www.acquisition.gov/content/caac-letters.
3. The text of the Order is available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/.
4. This guidance and any forthcoming updates are available at https://www.saferfederalworkforce.gov/contractors/