FAR Council Questions Guarantee of Adequate COVID-19 Security Protocols for Federal Contracts Clause | Burr & Forman

On September 27, 2021 Burr & Forman posted COVID-19 Vaccine Guidelines for Federal Contractors, noting that the Federal Acquisition Regulations Council was to develop a mandatory Federal Acquisition Regulation (“FAR”) clause for new contracts and solicitations exceeding the simplified acquisition threshold (currently $ 250,000.00). The FAR Council published the new clause (“COVID Clause”) and asked contracting agencies to develop exemptions allowing the use of the new COVID clause. So far, three of the largest contracting agencies – the Department of Defense (“DoD”), General Service Administration (“GSA”) and Veterans Affairs (“VA”) – have all issued waivers ordering to their contracting agents to integrate COVID. Clause.

What is a “deviation?” “

A “deviation” in this case is a means by which the FAR Council can guide the contractual action of the agencies before adopting a final rule. As noted, the FAR Council has called on contracting agencies to “act quickly” to put in waivers so that contracting officers can begin incorporating the clause into their solicitations and contracts by October 15, which will allow contractors to begin incorporating the clause into their solicitations and contracts. which is too quick for the FAR Council to adopt a new rule with notice and comment. Thus, the current COVID clause is a “deviation” clause, which will be updated when the FAR Council adopts a final rule and clause.

What does the COVID clause say?

The text of the COVID clause is relatively simple:

52.223-99 Ensure adequate COVID-19 security protocols for federal contractors.

ENSURING ADEQUATE COVID-19 SECURITY PROTOCOLS FOR FEDERAL CONTRACTORS (OCT 2021) (BYPASS)

(a) Definition. As used in this clause-

United States or its peripheral regions means

(1) The fifty states;

(2) The District of Columbia;

(3) The Commonwealth 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.

(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, of September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).

(vs) Compliance. The Contractor must adhere to all guidelines, including guidelines transmitted through Frequently Asked Questions, as amended during the performance of this contract, for the workplaces of the Contractor or Subcontractor published by the Safer Federal Workforce Task Force (Task Force Guidance) at https: / www. saferfederalworkforce.gov/contractors/

(D) Outsourcing. The Contractor shall include the substance of this clause, including this paragraph (d), in any subcontracts at any level that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date award of the subcontract, and relate to services, including construction. , played in whole or in part in the United States or its outlying regions.

Note: The COVID clause requires covered contractors to comply with Executive Order 14042 and all guidelines issued by the Safer Federal Workforce Task Forced “as modified during the execution of the contractWhich requires the contractor to be aware of and comply with changing guidelines throughout the execution.

Current deviations

So far, the GSA, VA, and the Department of Defense have all posted spreads providing guidance to their contracting officers on when to insert the COVID clause.

GSA gap

The GSA deviation text is here. As required by Executive Decree 14042, the GSA directs contracting officers to insert the COVID clause in all new contracts and orders for tasks or deliveries above the simplified acquisition threshold or the threshold of simplified lease acquisition (currently $ 250,000 / year in rent), with the exception of those intended solely for the manufacture of products. The GSA also “strongly encourages” contracting officers to include the COVID clause in contracts above the micro-purchase threshold but below the simplified acquisition threshold (or simplified lease acquisition threshold) and in contracts. product manufacturing. The GSA has also asked its contracting officers to send bilateral amendment requests to existing contracts to incorporate the COVID clause.

GSA contracting officers cannot include the COVID clause in contracts under the micro-purchase threshold (currently $ 10,000), for site acquisition, regarding sales of surplus goods, contracts enforcement outside the United States and with Indian Tribes under the Indian Self-Determination and Education Act (this does not include Indian-owned or tribal-owned business entities).

Department of Defense Deviation

The text of the DoD deviation is here. DoD orders contracting officers to insert version of COVID clause[1] in all solicitations, contracts, task orders, delivery slips, extensions, renewals, exercised options and existing vehicles with indefinite delivery and indefinite quantity that should have orders, beyond the acquisition threshold simplified. From the language, it appears the DoD is considering incorporating its COVID clause into contracts that are solely for manufacturing products – a major extension of Executive Order 14042. But later in its deviation, the DoD tells agents contractors that they “may” incorporate its COVID clause into “tenders, contracts, task orders and delivery notes for manufacturing products,” indicating that it is not mandatory for those contracts. Either way, it’s likely contracting officers will insert DoD’s COVID clause into manufacturing contracts to stay on the safe side. It is also in line with the White House’s stated goal of putting as many vaccines up to date as possible. The DoD deviation also allows contracting officers to insert its COVID clause into contracts under the simplified vesting threshold and solicitations already issued, as well as use bilateral amendments to insert it into contracts. existing contracts and orders for tasks and deliveries.

DoD contract agents cannot insert the clause in contracts with Indian tribes under the Indian Self-Determination and Education Act (this does not include Indian-owned or tribal-owned business entities) or in contracts to be performed outside the United States.

Veterans Affairs

The text of the VA deviation is here. VA gap forces contracting officers to include COVID clause in all new contracts awarded on or after November 14 from calls for tenders issued before October 15, new calls for tenders issued on or after October 15, extensions or renewals of existing contracts on or after October 15, and options exercised on or after October 15, all including task and delivery orders. In particular, there is no exclusion clause for manufacturing contracts. The VA also encourages, but does not require, contracting officers to insert the clause in contracts awarded before November 14 on solicitations issued before October 15 and contracts below the simplified vesting threshold.

VA contract agents cannot insert the clause in contracts with Indian tribes under the Indian Self-Determination and Education Act (this does not include Indian-owned or tribal-owned business entities) or in contracts to be performed outside the United States.

What to expect

Other contracting agencies will publish waivers in the days and weeks to come. Entrepreneurs should expect to see the COVID clause appear in all new solicitations and assignments in the future. When preparing bids and proposals responding to solicitations issued after October 15 or to be awarded after November 15, contractors should consider the cost of COVID clause compliance and factor this into pricing proposals. /costs.

If you are currently a contract holder, it is likely that the contracting agency will send a bilateral amendment request to incorporate the COVID clause. Failure to accept the bilateral amendment request may lead the contracting agency to take adverse action. For example, the GSA may remove or hide the entrepreneur from GSA websites.

[1] Aside from the numbering so that its clause is consistent with the supplement to the federal defense procurement regulations, the text of the COVID clause of the Ministry of Defense appears to be identical to that of the FAR Council.

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