Guidance and Clauses to Implement Federal Contractor COVID-19 Safety Protocols – Safer Federal Workforce Task Force, FAR, and DFARS Update
Key Details: As COVID-19 continues to threaten all economies internationally, implementation and mandates regarding safety protocols and vaccination efforts are on the rise. President Biden released Executive Order 14042 on September 9, 2021, titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” The goal of EO 14042 was to increase vaccination rates and safety procedures. This led to “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors”, issued by the Safer Federal Workforce Task Force on September 24, 2021.
This Guidance ensures covered contracts (and contract-like instruments) include a clause that specifies compliance with COVID safety protocols. Following this, the General Services Administration (GSA) released the Class Deviation CD 2021-13 that provides instructions regarding the introduction of a new clause (the deviation regulations).
Safer Federal Workforce Task Force COVID-19 Requirements
The deviation regulations are FAR 52.223-99 and DFARS 252.223-7999 and are both titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” These regulations will require compliance with the Safer Federal Workforce Task Force Guidance mentioned above for all covered contractors. These two clauses will also flow down to covered subcontractors as well. Requirements under the Guidance are briefly summarized below:
- Covered employees must be fully vaccinated (unless they are exempted) by December 8, 2021.
- Contractors must continuously monitor and covered contractor workplaces must adhere to the Centers for Disease Control regulations in terms of masking and social distancing.
- Assign responsibility to an individual for monitoring and ensuring compliance.
- Ensure the FAR and DFARS deviation regulation clauses are flowed down to first tier subcontractors.
- Instruct first tier subcontractors to continue to flow down the regulations to their lower tier subcontractors.
- Understand and comply with state and local COVID-19 safety regulations.
- Understand and comply with any federal regulations when accessing a federal facility.
Contractors are strongly encouraged to review the details of the task force’s guidance as soon as possible to develop an employee, workplace, and operations compliance plan. The guidance also provides a set frequently asked questions to help resolve common, practical concerns.
Which Contracts Will be Affected?
Per CD 2021-13, the contracts that will be affected are as follows:
- FAR 52.233-99 must be included in all new applicable solicitations issued on or after October 15, 2021.
- Solicitations issued prior to October 15, 2021, that have not been closed or awards that have not been made by October 15, 2021, must be amended to include FAR 52.233-99.
- All new applicable contracts, lease acquisitions, and contract-like instruments awarded on or after October 15, 2021, must include FAR 52.233-99 regulations.
- Existing contracts, including indefinite delivery, indefinite quantity contracts and contract-like instruments must be modified to include FAR 52.233-99 regulations.
How Can Contractors Best Prepare?
Note that the Safer Federal Workforce Task Force guidance also states, “Agencies are also strongly encouraged to incorporate a clause requiring compliance with this Guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.” Hence, a proactive compliance approach may provide the best timeline for avoiding issues with current work, renewals, option years, or modifications.
As this situation changes, it will be important for contractors to review and understand the requirements and restrictions imposed on their contracts by these deviations and the Guidance issued by the Safer Federal Workforce Task Force. A thorough review of current COVID-19 practices is also recommended to ensure compliance with these new regulations. Furthermore, understanding state and local COVID-19 restrictions and monitoring the advice provided by the CDC (Centers for Disease Control) will ensure contractors can take proactive steps in complying with these different regulations.
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Peter T. Ryan co-founded Ryan & Wetmore in 1988 with business partner Michael J. Wetmore. Peter provides clients with the best strategies for success. His expertise extends across various industries, including government contracting. Peter obtained a Master of Business Administration in Finance from the University of Baltimore and a Bachelor of Arts in Accounting from the Catholic University of America.
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