January 25, 2022

Volume XII, Number 25

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January 24, 2022

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FAR Council Issues Federal Contractor Vaccine Mandate Contract Language and Guidance to Agencies

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;

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.

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.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 280
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About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

303-225-2382
F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...

303-225-2381
Leslie Stout-Tabackman, Labor Employment Attorney, Shareholder, Jackson Lewis Law Firm
Shareholder

Leslie Stout-Tabackman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She has a broad-based practice counseling and representing employers on compliance with federal and state workplace laws and regulations, and designing and implementing sound practices and policies.

Ms. Stout-Tabackman regularly counsels and represents clients with matters before the U.S. Department of Labor’s (DOL) Wage and Hour Division, including Fair Labor Standards Act (FLSA) issues and prevailing wage and benefits issues arising under the Service Contract Act...

703-483-8345
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