Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contracts

RF-SA said:

My questions is, if I had an agency that wanted to order something direct from my company and the order was over the SAT, would my company be subject to the vaccine requirement? (Ex: NSA wanted to order some widgets that I produce direct from me. It is a $360,000 order. Would this be considered a contract? If so, would my company then be required to be fully vaccinated in order to accept this sale?).

Yes, the purchase ("order") of widgets would be a contract. See the definition of "contract" in FAR 2.101. But it probably will not be subject to the executive order.

The government generally distinguishes among contracts for "supplies "(products, goods), for "services", and for "construction". See the definitions of "supplies" and "construction" in FAR 2.101 and the definition of "service contract" in FAR 37.101.

The plain language of the executive order states that it applies to contracts for services, construction, and leaseholds of real property. It makes no mention of contracts for supplies (products, goods) and specifically states that it does not apply to subcontracts "solely" for "products". So it appears that it will not apply to a contract or subcontract for the purchase of anything other than services and construction and for leases of real property.

However, the executive order must be implemented through the Federal Register rule-making process. The agencies tasked with issuing implementing regulations will probably publish an "interim rule", which will take effect before the receipt of public comments, and ultimately issue a "final rule" after consideration of public comments. The rules will be drafted in haste. Until they are published, we cannot be sure what they will say and how they will implement the policy. There will be issues of interpretation and application. For instance, it's not clear whether it will apply to contracts for supplies that include installation and maintenance or that include on site repair warranties, although some people will insist or speculate that it certainly does or certainly doesn't. Will it apply to Other Transactions ("contract-like instruments")?

In short, don't hold your breath waiting for clarity and certainty. And there will almost certainly be litigation in Federal court to block the order, which could delay its implementation.

Stand by now, RF-SA, for insistent requests for more information and for rampant speculation and war stories.

Vern Edwards said:

Yes, the purchase ("order") of widgets would be a contract. See the definition of "contract" in FAR 2.101. But it probably will not be subject to the executive order.

The government generally distinguishes among contracts for "supplies "(products, goods), for "services", and for "construction". See the definitions of "supplies" and "construction" in FAR 2.101 and the definition of "service contract" in FAR 37.101.

The plain language of the executive order states that it applies to contracts for services, construction, and leaseholds of real property. It makes no mention of contracts for supplies (products, goods) and specifically states that it does not apply to subcontracts "solely" for "products". So it appears that it will not apply to a contract or subcontract for the purchase of anything other than services and construction and for leases of real property.

However, the executive order must be implemented through the Federal Register rule-making process. The agencies tasked with issuing implementing regulations will probably publish an "interim rule", which will take effect before the receipt of public comments, and ultimately issue a "final rule" after consideration of public comments. The rules will be drafted in haste. Until they are published, we cannot be sure what they will say and how they will implement the policy. There will be issues of interpretation and application. For instance, it's not clear whether it will apply to contracts for supplies that include installation and maintenance or that include on site repair warranties, although some people will insist or speculate that it certainly does or certainly doesn't. Will it apply to Other Transactions ("contract-like instruments")?

In short, don't hold your breath waiting for clarity and certainty. And there will almost certainly be litigation in Federal court to block the order, which could delay its implementation.

Stand by now, RF-SA, for insistent requests for more information and for rampant speculation and war stories.

Good day Vern, 

Thanks for the detailed response! I was a little confused on the addition of "subcontract" being excluded in (b), but not a "contract" being excluded. If only subcontracts are excluded but not contracts, it will effect us eventually. If both subcontracts AND contracts are excluded then we are most likely out of scope for this, (depending on the actual final rule of course). I'm still fairly new in the field, so I really appreciate your insight and expertise in this. 

I'll stand by and wait for further information release. I am sure I will have more questions regarding this since it affects our business in a big way, (as it does with many others), but there will be no rampant speculation, no war stories, and no insistent requests! 

Thank you again!

RF-SA

@RF-SAWhen you read the EO as a whole it clearly applies to contracts only for services and construction and "contract-like instruments" for the same. There is no need to expressly exempt contracts for products, since they are not among the contracts listed to which the EO expressly does apply.

I think the reason they expressly made mention of subcontracts solely for products is so that service and construction contractors will l know that the EO does not apply to all subs under a contract for services or construction, only subs for services or construction and subs for products that include services or construction, such as subs for the installation of elevators.

Contracts and subs solely for products (include no services) are in the clear. What's not certain is applicability to contracts products that include installation and onsite maintenance.

I discussed the EO at length with a colleague this morning, and we agree that it will not take effect before the implementing regulations are issued, and that it will take a while to get the regulations written and through the rulemaking process. A lot has to happen before the EO starts to have an impact. We'll all be in standby mode until the regs appear in the Federal Register.

Question:  Is anyone hearing that their agency wants to incorporate the clause into actions valued at less than the SAT or in actions that are not included as part of the EO?  If so, what are your opinions on this idea?

I have not heard of any agencies that would like to, but I am keeping my ears open and would be happy to report back if I do hear anything.

I personally agree that people need to be vaccinated, but I do not think this is the way to do so. I know they've tried many other ways to increase vaccinations, but incorporating the clause into an out of scope (per the EO) contract seems to be the wrong way. If they wanted all contractors vaccinated, I wish they would have just not included exclusions and just made it a mandatory thing for all contractors to vaccinate. Including the exclusion and then the paragraph strongly encouraging agencies to include the FAR into contracts out of scope causes confusion and worry. I know all of my employees are worried about it since our response is in nexus because of this issue. 

RF-SA

styrene said:

Question:  Is anyone hearing that their agency wants to incorporate the clause into actions valued at less than the SAT or in actions that are not included as part of the EO?  If so, what are your opinions on this idea?

You might want to also follow this thread that RF-SA started I think it will help answer your question.

For those interested, it appears as though FAR language has been released for this. 

https://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC Letter 2021-03 Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO 14042) 09.30.2021.pdf

Thank you, RF-SA,

Para. (c) is very interesting (and very open-ended)--

Quote

(c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

ji20874 said:

Thank you, RF-SA,

Para. (c) is very interesting (and very open-ended)--

Happy to help!! 

This whole situation seems open-ended. It appears as though Task Force Guidance will be binding too, so any updates given are binding. (I had a source for this, but I would have to find it again).

Here's more documentation from GSA regarding this. 

https://www.gsa.gov/cdnstatic/Class Deviation CD-2021-13_0.pdf

GSA is also hosting a webinar that looks like it will help to clarify some points of this order.
---> https://gsa.zoomgov.com/webinar/register/WN_uo6CAlWwTxmPvCmDW_cmEA

RF-SA

The letter says: Agencies are reminded that FAR 1.404 requires agencies to furnish a copy of their approved class deviation (including direction to the workforce, prescription for use of clause, and clause text) to the FAR Secretariat, General Services Administration, by emailing the deviation to GSARegSec@gsa.gov. Agencies must submit their class deviations no later than October 15, 2021.

So does that mean that agencies that adopt the suggest language still need to submit a copy of their class deviation to the FAR Secretariat or only those agencies that draft their own language?

I see from the WIFCON front page that DoD has issued its Class Deviation, to be effective immediately.

jjgott,

I think it is both.

ji20874 said:

jjgott,

I think it is both.

Thank you, that was my read as well.  I had someone in my office think it only applied to agencies that proposed their own language.

So if this impacts a contractor's workforce to the point they can't perform the contract they signed before the mandate,  I T4D them? 

Heck; I know of Feds who say they will quit rather than get vaccinated.  I predict this ends badly.

Please, no histrionics.

The clause goes in new contracts for services awarded on or after November 14, 2021, from solicitations issued before October 15, 2021 -- neither of these dates have even arrived yet, and the parties to these future contracts may deal with any cost or other impacts before those contracts are awarded.  No problem.

The clause will have to be added (bilaterally?) to existing contracts for services only if both parties foresee future extensions of those contracts, or option exercises, or task/delivery order issuances (for indefinite-quantity contracts).  The parties to these contracts may deal with any cost or other impacts before those actions occur.  No problem.

From the CAAC letter:  "[a]gencies are encouraged, but are not required to include the clause" (emphasis in CAAC letter) in all other contracts.  I assume these will be bilateral modifications.  The parties to these contracts may deal with any cost or other impacts before the modifications occur.  No problem.

No contractor is being forced to accept the clause in any contract.  Any contractor who accepts the mandate will do so voluntarily, and will be able to deal with any cost or other impacts before award.  No problem, right?

ji20874 said:

No problem, right?

They have the choice to accept it or not. I know no CO that would T4D them in administration if they do not.

With that, several I have talked too in the construction realm, in which I currently reside as a CO, said they would lose most of their workforce if they enforced it. 

I do believe this is going to get interesting. We should all share the effects/trends we are seeing moving forward.

Cost impacts won't be known until after the contracts are modified.  My Department is requiring all service contracts be modified immediately, and I suspect that others will as well.  When I said "not end well" I was referring to cost impacts (and yes, the mods are supposed to be bilateral), not  dire mortal consequences that will doom us all to eternal oblivion.

As Constricting Officer points out, those of us who have awarded A&E contracts outside the major cities are fully expecting some level of impact on the workforce.  Saying "they don't have to accept it" ignores the simple fact that doing so places the requirement at risk for the government.  Cutting off your nose to spite your face sorta thing.

ji20874 said:

From the CAAC letter:  "[a]gencies are encouraged, but are not required to include the clause" (emphasis in CAAC letter) in all other contracts.  I assume these will be bilateral modifications.  The parties to these contracts may deal with any cost or other impacts before the modifications occur.  No problem.

ji, consider the situation where an option is exercised in 2022.  The contract is modified at that time to include the CAAC clause.  What is the date by which the contractor must come into compliance with the vaccination requirements in the clause?

REA'n Maker, Do we obey the president, or do we substitute our better knowledge and disobey the president?  I have to suppose that the president considered risk to executive branch operations as part of his process.

If you are doing bilateral modifications, shouldn't you consider the cost impacts before issuing your modifications and include those impacts in the new negotiated agreements that are reflected in the bilateral modifications?

Retreadfed,

You will need to direct questions like yours to your attorney.  Paragraph (c) of the clause says--

• (c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

ji, the Guidance currently states "Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract."  Do you see a problem for both the government and contractor in the scenario I posed?  Also, can the government exercise the option without including the clause in the contract?

Retreaded,

It sounds like you already know the answer to the first question you asked me.  As for the new batch of questions, if they are really questions based on honest intellectual inquiry, you will want to direct those to your attorney.

If anyone doesn't like the mandate and the clause, don't be mad at me.  I wasn't involved in either.  However, I think I have faithfully represented what the clause actually says, for the benefit of those who haven't bothered to read it yet.  It says what it says.  Our discussion here should be based on what the clause actually says.

On 10/8/2021 at 3:57 PM, ji20874 said:

REA'n Maker, Do we obey the president, or do we substitute our better knowledge and disobey the president?

Now THAT's what I call some serious histrionic.  Yikes.

lol

If anyone doesn't like the mandate and the clause, or an agency's knee-jerk decision to include the clause in all existing contracts, don't be mad at me.  However, with the decision having been made by the president, I want to help contracting professionals faithfully implement the decision in the best way possible.

I've attended a couple of webinars this week on the topic, and the prediction on enforcement seems to be similar to how FAR 52.223-6 Drug-Free Workplace is enforced...which from my view, isn't all that much. We shall see. I've heard my Government counterparts lament that they're busier than ever (for both COVID and non-COVID related reasons), so adding enforcement to the plate would seem to be very low priority. 

There aren't any reps or certs yet, so presumably, the Government will have to take a contractor's word for it when it comes to attesting its workforce is 100% vaccinated. 

Consequences for non-compliance? Seems like potential negative CPARS, Past Performance hits, and the possibility of whistleblowers coming to the fore.

I ended up going to a webinar sponsored by GSA as well. 

Here are the slides for GSA and how they will be enforcing. It looks like you're right, no reps or certs and this will be contractors responsibility to enforce. I heard it mentioned that no checking will be involved unless there is a reason. (Not exact wording).

https://www.gsa.gov/cdnstatic/COVID EO Protocols Industry Meeting Final_0.pdf

The following bullets are from the GSA briefing to which RF-SA provided a link, Chart 13:

• CO will enforce just like any other contractual requirement.
• Taskforce Guidance tells contractors that they may assume the subcontractor is complying with the clause absent credible evidence otherwise.
• If concerns arise about vaccination status of a particular employee, CO should ask the contractor to confirm the employee compliance with the vaccination requirement.
• COs should not be directly requesting employee vaccination information. Work through contract administration POCs.

Now, as for that first bullet, we've had some serious arguments in this forum over the past few months about enforcing socio-economic clauses. Some of our most experienced members believe in proactive CO monitoring and enforcement. Some think they are moral imperatives. I'm sure that there are other contracting personnel who feel much the same, if not quite as ardently.

So, ask yourself: What does that first bullet tell contractors about what to expect?

I doubt that there will be much in the way of aggressive monitoring and enforcement at most agencies. But I don't know. There may be issues where contractor employees are performing on site and mixing with government employees.

Vern Edwards said:

CO will enforce just like any other contractual requirement.

Vern Edwards said:

But I don't know

Me either.  It just seems that a Federal contract is sometimes its own contradiction in twists and turns as to responsibilities of a CO and a contractor.  In reading the latest comments in the thread my mind went to 52.203-13 and  the thought, as I understand, that an Executive Order has the effect of law.

See: What Is An Executive Order? American Bar Association (Jan. 25, 2021)

https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/

See also: Congressional Research Service, Executive Orders An Introduction (March 29, 2021)

https://crsreports.congress.gov/product/pdf/R/R46738

In 1957, Congress printed a very interesting study of executive orders. See: Executive Orders and Proclamations: A Study of A Use of Presidential Powers, House of Representatives, Committee on Government Operations (December 1957). Available online through Google Books:

https://books.google.com/books?id=nnLRAAAAMAAJ&printsec=frontcover&dq=EXECUTIVE+ORDERS+AND+PROCLAMATIONS:+A+STUDY+OF+A+USE+OF+PRESIDENTIAL+POWERS&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwiX8qeiuczzAhXEGTQIHcQyCjwQ6AF6BAgIEAI#v=onepage&q=EXECUTIVE ORDERS AND PROCLAMATIONS%3A A STUDY OF A USE OF PRESIDENTIAL POWERS&f=false

And just to fan the flames, let me suggest:

"Executive Orders, the Very Definition of Tyranny, and the Congressional Solution, the Separation of Powers Restoration Act," by Leanna M. Anderson, Hastings Constitutional Law Quarterly,  Vol. 29 (2002), No. 3, p. 589.

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1733&context=hastings_constitutional_law_quaterly

I will do my job as directed because that is what I signed up to do. 

Lest we forget, these 'contract' things we blithely bandy about on a daily basis represent the lives and livelihoods of thousands and thousands of people, and we have a positive duty to demonstrate good faith and fair dealing accordingly (How many WifCon threads have discussed that subject BTW?).  Being a good CO is not all about peeling apart the vagaries of the Limitations on Subcontracting clause. 

Must be Friday because I'm feeling philosophical.

REA'n Maker said:

Must be Friday because I'm feeling philosophical.

Well, you're not being very philosophical. A philosophical person asks questions and proposes and debates answers. You're just grousing, which is okay, if you do it philosophically.

"By the dog, Gorgias, there will be a great deal of discussion before we get at the truth of all this." Socrates in Gorgias by Plato, Jowett, trans.

Prediction: The vaccination requirements will be enforced through the action of private attorneys general, acting through the False Claims Act.

here_2_help said:

Prediction: The vaccination requirements will be enforced through the action of private attorneys general, acting through the False Claims Act.

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment?

Maybe so. But that will be years from now, don't you think?

Vern Edwards said:

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment?

Maybe so. But that will be years from now, don't you think?

I made a prediction without a date, which (as you know) is the best kind of prediction.

To your point, I agree that the legal settlements will start occurring years from now. I believe the suits (filed under seal, I expect) will come sooner, perhaps in 2023 or even as early as 2022. It only takes one impliedly false certification to give rise to an action (at least, that's what I've been told).

FYI, the legal webinar I attended yesterday asserted that the Vaccination Mandate clause would likely be found to be material under the Escobar implied false certification test.

Here are some important questions related to this topic that no one in my office can answer.  I figured I should poll the Forum before I make a hasty mistake.

1. Does anyone know if/when GSA plans to update all of the MAS terms and conditions to insert the clause from the CAAC's Deviation memo into them? Contracts Online Home (gsa.gov)
2. If GSA inserts the clause, would an Agency's:
   • Order issued through a BPA awarded previously under the MAS (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision? 
   • Order issued directly against the MAS previously (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision?
3. If GSA does not insert the clause, does the Agency's BPA previously awarded under the MAS need to insert the clause before the Order can insert the clause?

Please advise on basic contracting principles, oh trusty Wifcon.  I will keep any and all references to case law so I don't have to ask again.  Today I am just in a time crunch and I have no quick recall on these subjects.

1.  I don't know.

2.a.  That will depend on the language GSA uses in the parent schedule contract.

2.b.  Only if there will be a future need to extend the order, exercise an option, or so forth.

3.  I think the clause can be bilaterally added to a specific order without prior inclusion in the parent schedule contract.

Quote

The overarching message coming out of these calls [with government agencies] is that the administration is willing to take the risk of companies losing some employees. They believe from their data that there will be 'noise up front and compliance in the back' as this directive is implemented (they continue to use the United Airlines case as an example of that where there are around 300 holdouts out of 67K employees). Also, their stated goal is the maximum number of Americans vaccinated, so they have given guidance to departments and agencies to broadly interpret and apply the mandate. Because we know your workforce is your most valuable asset and one that is not easily replaced, [unnamed industry association] does not agree unnecessarily losing employees is an acceptable risk to our companies.

Regarding that, [unnamed industry association] has received feedback from membership that the EO is being implemented unevenly across the Department of Defense (DoD) and that uncertainty remains regarding how much information/documentation companies will have to provide in their attestations that their covered workforce is vaccinated, criteria for exceptions (both religious and medical), what is meant by 'products' based contracts and what that means to flow-down, and what, if any, indemnification will the government provide.

In a recent call with DoD, [unnamed industry association] was informed that facility access guidance (and by extension, attestation requirements via the DD Form 3150) will likely be released today. Additionally, further DoD-wide guidance from the Office of the Deputy Secretary of Defense will be issued within the next week, and that the department is working as expeditiously as possible on implementing an FAR rule. All these are efforts to close the gaps in guidance and to standardize how contracts will be modified and enforced.

Quoted from email received today (10/15/2021)

I think here_2_help's quote is part of a message from Arnold Punaro, Chairman of the Board of the National Defense Industrial Association (NDIA).

I want to discuss the phrase employees who work “in connection with a covered contract” to define covered contractor employees. If we ignore the issue of employee proximity for now and just focus on the reach of this phrase, can anyone help me understand which contractor employees stay outside of its scope?

I know this phrase has been used in other EOs (minimum wage, paid sick leave) so I took a look at DOL guidance:  

Quote

For purposes of the Executive Order, the Department views a worker performing “on” a covered contract as any worker who directly performs the specific services called for by the contract’s terms. The Department regards a worker performing “in connection with” a covered contract as any worker who performs work activities that although are not the specific services called for by the contract’s terms, are necessary to the performance of those specific services.

See: Executive Order 13658 Frequently Asked Questions (FAQs) | U.S. Department of Labor (dol.gov) Questions 16 & 17.

GSA suggests

Quote

Think anyone in an overhead pool

https://www.gsa.gov/cdnstatic/COVID EO Protocols Industry Meeting Final_0.pdf

Can anyone explain how they interpret this? I read this to suggest that G&A wouldn't be covered. But the Safer Workforce Taskforce specifically calls out the basic back office functions as covered:

Quote

Q: What constitutes work performed “in connection with” a covered contract?

A: Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.

https://www.saferfederalworkforce.gov/faq/contractors/

There must be a limit, right? Let's say there is a company with branch offices with employees that work directly on the contract (e.g., laborers, local mangers, office staff creating invoices, etc.) and there is an HQ building in another state that houses company HR, legal, accounting, executive leadership. Could the company keep the HQ staff out of the definition of "covered contractor employees"? What qualifies as "duties necessary" under the contract? What facts matter? What do we need to consider? (Please ignore proximity and risk of covered employees visiting the HQ). 

Thanks for any insight.

Nena,

This thread is about the EO on COVID vaccinations, but you are relying on text regarding the EO on minimum wage.  I recommend not conflating these matters.  I am not at all certain that the definition of "covered contractor" or "covered contractor employee" in one matter is the same as in the other matter.  I think a contractor should comply with each EO separately (or rather, the contract clauses implementing each EO separately) according to the text of each instead of assuming a common application for both.

@ji20874 I appreciate your point that even though the EO's may share the same language we should not assume the phrase means the same thing. Fair enough.

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract?

Vern Edwards said:

I think here_2_help's quote is part of a message from Arnold Punaro, Chairman of the Board of the National Defense Industrial Association (NDIA).

I think you may be right, but I didn't want to attribute it, as I wasn't sure how widely it was distributed.

NenaLenz said:

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract?

1.  Don't read the EO.  Forget it.  Instead, read the contract clause that will be inserted into your contract.

2.  You will have to assert that the persons at the HQ office are not "covered contractor employees" and that the HQ office is not a "covered contractor workplace," using the definitions of these terms as found in the guidance.  This will be based on your particular facts.  You must appreciate, or course, that the goal of this effort is to cover as many people as possible, and you might not be able to reach your desired end.  Q8 and Q9 in the FAQs will be of interest to you.

ji20874 said:

1.  Don't read the EO.  Forget it.  Instead, read the contract clause that will be inserted into your contract.

2.  You will have to assert that the persons at the HQ office are not "covered contractor employees" and that the HQ office is not a "covered contractor workplace," using the definitions of these terms as found in the guidance.  This will be based on your particular facts.  You must appreciate, or course, that the goal of this effort is to cover as many people as possible, and you might not be able to reach your desired end.  Q8 and Q9 in the FAQs will be of interest to you.

@ji20874I don't agree that we should not read, and should forget, the EO. It's the ultimate source document. The clause says it is implementing the EO, and the task force guidance refers to it. A court or board of contract appeals would almost certainly read the EO when trying to interpret the intent of the clause and the task force guidance.

NenaLenz said:

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract?

@NenaLenzMy answer is no.

The stated goal of the EO is to safeguard contractors' workers, i.e., individual persons. The contract clause requires compliance with task force guidance in order to achieve that end. The task force guidance requires three things:

1. Quote

   1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
   2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
   3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The first requirement is what worries everyone.

The task force guidance defines 10 terms on pages 3 and 4:

1. community transmission
2. contract and contract-like instrument
3. contractor or subcontractor workplace location
4. covered contract
5. covered contractor
6. covered contractor employee
7. covered contractor workplace
8. federal workplace
9. fully vaccinated
10. mask

I think the guidance definitions that are key to its interpretation and application are probably covered contractor employee and covered contractor workplace:

Quote

Covered contractor employee – means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

Covered contractor workplace – means a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract. A covered contractor workplace does not include a covered contractor employee’s residence.

I think you have to start with covered contractor employee.

I think a contractor employee who does anything that might affect covered contract performance, including work such as granting or approving settlements or waivers, cost accounting, approving or controlling contract-related policies or procedures, hiring or approving hires, providing information required for performance or reporting, etc., would be working "in connection with a covered contract." If that employee is working at the covered contractor's HQ, then that would make the HQ a covered contractor workplace and the employee a covered contractor employee. But I think that such an employee working exclusively from home probably would not be a covered contractor employee.

According to the guidance:

Quote

Covered contractors are responsible for ensuring that covered contractor employees comply with the workplace safety protocols detailed below. Covered contractor employees must also comply with agency COVID-19 workplace safety requirements while in Federal workplaces.

The very first safety protocol is as follows:

Quote

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation

Italics in the original.

Thee guidance requires compliance by "individuals". Not everyone working at a covered contractor workplace is required to get  vaccinated, only covered contractor employees. Remember, the EO is seeking to achieve its ultimate goal through government contracts. Contracts are the policy vehicle. I don't think a president can order covered contractors to require employees to get vaccinated if they are not working on or in connection with a covered contract.

Ultimately, boards and courts will have to interpret the guidance. Some might interpret it broadly, others narrowly, and some might refer to the EO when deciding which way to go. 

Bottom line: I do not think you can hold an employee at an HQ to be out of reach of the clause just because they work at the HQ and not at the office that is working under the statement of work. But my opinion is based on nothing more than two or three reads of the guidance. I am open to others' interpretations.

On 10/17/2021 at 5:38 AM, Vern Edwards said:

I am open to others' interpretations.

The interpretations are sound.  The reach of the EO is very long and connected but not on the topic of acquisition/contracting is its application to contract-like instruments.   

Cooperative agreements are thrown into the mix by my read of the definition that applies per the EO which is -

"The Department proposes to define contract and contract-like instrument collectively for purposes of the Executive order as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The proposed definition of the term contract broadly includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing." 

Reference per the EO is  - https://www.federalregister.gov/documents/2021/07/22/2021-15348/increasing-the-minimum-wage-for-federal-contractors

Wondering by example - A State agency has a wildlife area for the management of big game.  A national non-profit big game organization assists annually in fence manipulation for the wildlife area.  If the State gets Federal money for the project via cooperative agreement should the State now require volunteers for big game organization to show proof of vaccination?  

In following the mandate trail which the EO essentially is, there are those that will most likely not comply.  Again by example - State departments of education get Federal money by cooperative agreement.  Money is passed down to individual schools.   There is also a state mandate for vaccinations.  Yet there is school(s) that is an outrider that refuses to follow the mandate, state wise.   What happens to this school with regard to the fact that the EO now exists?

All rhetorical questions related to scenarios that in part are based in fact.  All offered as examples that relate to the quote found in the post by here-2-help - "...the EO is being implemented unevenly across the Department of Defense..." - where I wonder about the consistency that will occur when all of these folks finally settle on implementation and administration (number unknown but probably surpasses 400) https://www.usa.gov/federal-agencies .   The reach beyond the contract, as demonstrated by the reach that could occur for a cooperative agreement, is long and complicated suggesting endless hours of administrative effort.

Carl,

I have to caution for extraordinary care here -- you linked to the EO for minimum wage for federal contractors, but the topic in this thread is vaccines for federal contractors.

ji20874 said:

Carl,

I have to caution for extraordinary care here -- you linked to the EO for minimum wage for federal contractors, but the topic in this thread is vaccines for federal contractors.

Section 2 of the EO for COVID and I quote -   "(e)  For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021).  If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule."

@ji20874 I express the same caution!

👍

C Culham said:

Cooperative agreements are thrown into the mix by my read of the definition that applies per the EO which is -

"The Department proposes to define contract and contract-like instrument collectively for purposes of the Executive order as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The proposed definition of the term contract broadly includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing." 

Reference per the EO is  - https://www.federalregister.gov/documents/2021/07/22/2021-15348/increasing-the-minimum-wage-for-federal-contractors

In addition, the Safer Federal Workforce Task Force guidance specifically calls out Cooperative Agreements as being included.  It defines contract and contract-like instruments to include (among other instruments):

Quote

all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.

https://www.saferfederalworkforce.gov/downloads/Draft contractor guidance doc_20210922.pdf

Lionel Hutz said:

In addition,

Yes.  I guess I can wonder about the whole effect but a part of me wishes I was back in the trenches to see how this plays out.  Most especially the addition of the clause via bi-lateral modification as I would be interested in if and how contractors might request and support the request for a contract cost/price increase to implement.  It would seem that lots of indirect costs would be affected along with some possible direct costs (attrition rate changes on a specific contract).  The COVID cost exponential grows!

Talked to an engineer from Boeing last night. He said, "No worries." Boeing had instituted mandatory vaccinations on the government (NASA) program that he works on some time ago. He said it didn't cause any problems or loss of workers.

Vern Edwards said:

Talked to an engineer from Boeing last night. He said, "No worries." Boeing had instituted mandatory vaccinations on the government (NASA) program that he works on some time ago. He said it didn't cause any problems or loss of workers.

You'll have to forgive me if I continue to have worries about my A&E contractor in Idaho.

REA’n Maker,

These are bilateral modifications, right?  If so, it is a negotiation.  Maybe you can make it worthwhile to your A&E contractor?

REA'n Maker said:

You'll have to forgive me if I continue to have worries about my A&E contractor in Idaho.

@REA'n MakerWhy are you worried if they're currently on  contract to finish a job?  Are you worried that they'll catch Covid?

On 10/17/2021 at 7:38 AM, Vern Edwards said:

But my opinion is based on nothing more than two or three reads of the guidance. I am open to others' interpretations.

Thank you for the thoughtful response. I appreciate your insight.

This morning, Bloomberg Law published an article entitled, "Vax Rule’s ‘Gray’ Areas May Help Contractors Beat Fraud Claims." It opens as follows:

Quote

Attorneys who try to shield federal contractor clients from fraud suits have many questions about how the White House’s Covid-19 vaccine mandate is going to be enforced and what it takes to evade False Claims Act liability.

The compliance due date is Dec. 8, and contractors don’t want to be accused of entering into a contract while planning not to comply or submitting claims for payment while knowing they didn’t comply with what was specifically demanded in their contract.

This concern is arguably amplified by unanswered questions about employees’ medical and religious exemptions, how a good-faith effort will be viewed, and how government agencies might punish noncompliance.

While perhaps frustrating now, confusion over these issues may come in handy should a whistleblower or a Justice Department lawsuit claim that failing to comply with the mandate violated the FCA.

The article is well worth reading if you have or can obtain access.

I am having a debate with my colleagues regarding the flow down of 252.223-7999 in subcontracts for commercial items. I don't believe it is required based on 252.244-7000 (a), which states a contractor is not required to flow down the terms of any DFARs clause in subcontracts for commercial items at any tier, unless so specified in the particular clause. I do not see any language in the clause that specifies flow down is required in subcontracts for commercial items. Per the definition of commercial items in FAR 2.101, it does include services if certain criteria is met, so I can understand the more conservative approach in flowing in all subcontracts for services, but I am anticipating a lot of push back from our suppliers providing commercial services. I have done a general search and haven't found anything, but is anyone aware of any resources that specifically discuss flowdown in subcontracts for commercial items?

prestonml said:

I do not see any language in the clause that specifies flow down is required in subcontracts for commercial items.

@prestonmlNeither do I. Nor have I seen any express mention of contracts for commercial items in any of the policy documents issued thus far to implement the E.O.

If I were in your place I would say that the rule in FAR 44.402 and the DFARS still applies, and I would not flow the clause down to commercial item subs until authoritatively instructed otherwise in writing.

prestonml said:

I do not see any language in the clause that specifies flow down is required in subcontracts for commercial items.

Another route might be to direct your question to a CO or even bolder to the authority identified in this directive. 

https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf

My  thought regarding your very good question is that the clause does not exclude flow down to commercial item subcontracts  and a read of the clause implies "any tier".  I could be way off as I wondered in a previous thread that as the EO is not a statute could the effort of tailoring have the clause in or out of commercial prime contracts.  And if not out and it must be in a commercial item contract , then it would seem the Subcontracts paragraph is applicable as it would take a deviation to remove it I would think?

Vern Edwards said:

If I were in your place I would say that the rule in FAR 44.402 and the DFARS still applies

Would the Course of Performance Rule support this in a court of law?  That rule is that, all things the same, treat every contract ambiguity like you have treated it before and, if it was accepted by the other party before, you are not at fault for the other party's new interpretation of it this time.

To succeed with that argument in court, though, you must prove an ambiguity in a contract exists.  Is this clause language ambiguous?

Quote

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.

Microsoft Word - TAB A - 2021-O0009 Deviation Memo - Final (osd.mil)

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House

I wonder if the DOD class deviation violates 41 USC 1707, Publication of Proposed Regulations. I have searched the Federal Register and have found no proposed, interim, or final rule implementing its provisions to date.

The deviation memo makes no mention of a waiver pursuant to 41 USC 1707(d). Even if publication is waived, a notice must be published in accordance with 41 USC 1707(e)(1).

If the deviation must be published and has been issued in violation of 41 USC 1707, the policy might not be enforceable. From a 2013 article:

Quote

Note that the publication statute does not mention the FAR and that by its plain language applies to all procurement rules (i.e., all policies, regulations, procedures, and forms). See Munitions Carriers Conference, Inc. v. U.S., 932 F. Supp. 334 (D.D.C. 1996), overruled on other grounds, 147 F.3d 1027 (D.C. Cir. 1998). Thus, no rule can take effect and be legally enforced until it has been published. See Munitions and La Gloria Oil & Gas Co. v. U.S., 56 Fed. Cl. 211 (2003), overruled in part on other grounds, Tesoro Hawaii Corp. v. U.S., 405 F. 3d 1339 (Fed. Cir. 2005). As applicable to the FAR, the publication statute is implemented by FAR 1.105-1, 1.301, and 1.501. The Paperwork Reduction Act is implemented by 5 CFR Part 1320 and FAR 1.106. Note also that the publication statute applies at all levels in an organizational hierarchy—agency, contracting activity, and contracting office. Any policy, regulation, procedure, or form that will have a significant effect or impact must be published before it can take effect, no matter who signs it or at what organizational level it is issued.

Vern Edwards said:

I wonder if the DOD class deviation violates 41 USC 1707, Publication of Proposed Regulations.

"Knee jerk" reaction has already been mentioned in this thread and the more I think, the more I read, the more I consider the thoughts of others the more I think the term applies and the whole affair will end up, also as noted before, on that pile of contract terms and conditions that get lost in the swirling chaos of what is important to the actual performance of a contract.

C Culham said:

"Knee jerk" reaction has already been mentioned in this thread and the more I think, the more I read, the more I consider the thoughts of others the more I think the term applies and the whole affair will end up, also as noted before, on that pile of contract terms and conditions that get lost in the swirling chaos of what is important to the actual performance of a contract.

Maybe, but don't underestimate the ability of our legal system to turn "knee jerk" into costly litigation. One person's "knee jerk" is another's "bread and butter".

Ever read H.G. Wells' novel "The War of the Worlds"? Well, "intellects vast and cool and unsympathetic" may be standing by and "slowly and surely [drawing] their plans against us."

Americans are among the most litigious people in the known universe. Someone gets sick at work and files suit against their employer for not complying with the mandate.

Better, perhaps, to think and discuss now than to wait for a legal onslaught. Maybe the best offense is a good defense.

In case you haven't seen it, Department of Commerce deviated from the FAR Clause, section (d) to lower the trigger to the micro purchase threshold. Although many agencies are encouraging broader flowdown at the prime level, to my knowledge no other agencies have gone this far. DOC clause is 1352.223-99

"...(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the micro purchase threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas."

https://www.commerce.gov/sites/default/files/2021-10/PM 2022-01 FAR Class Deviation Vaccine vF.pdf

https://www.commerce.gov/sites/default/files/2021-10/PM 2022-01 Attachment A.pdf

Vern Edwards said:

Better, perhaps, to think and discuss now than to wait for a legal onslaught. Maybe the best offense is a good defense.

100%

Vern Edwards said:

I wonder if the DOD class deviation violates 41 USC 1707, Publication of Proposed Regulations.

I think DoD violates 41 USC 1707 as a matter of course when it issues class deviation memoranda. They have been used as an interim measure until they get around to incorporating the rule in the FAR/DFARS. The statute doesn’t allow for that. It does allow for interim rules when necessary, but those still must be published in the Federal Register.

The following is an excerpt from an article in the October 20 edition of The Government Contractor: 

"FEATURE COMMENT: A Federal Contractors’ Guide To The Evolving COVID-19 Safeguard Requirements" by Scott A. Schipma, Michael J. Schaengold, and Aaron M. Levin of the Government Contracts Practice at Greenberg Traurig, LLP (GT):

Quote

Uncertainties Associated with Legal Challenges/Conflict of Laws: Challenges to the E.O. and associated agency deviations/guidance related to the implementation of the E.O. are expected. For example... challenges may be brought against the rushed process and procedures used to issue new class deviations in less than a month from the E.O.’s release—an unprecedented period. While the Office of Federal Procurement Policy (OFPP) Act at § 22 (41 USCA § 1707) does not specifically address class deviations, class deviations may fall within any of the various categories of procurement changes identified in the OFPP Act—in particular, changes in procurement policy, regulation, procedure or form that require publication in the Federal Register. 41 USCA § 1707. The E.O., here, does not direct the FAR Council to go through its usual process of proposing and finalizing a change to the FAR. Instead, it commanded the FAR Council to, by Oct. 8, 2021, provide “policy direction to acquisition offices” which procuring agencies will use to implement FAR deviations (under FAR subpt. 1.4).

FAR 1.501-2(b) provides that when a possible FAR deviation will have a significant cost and/or administrative impact on a contractor, “[t]he opportunity to submit written comments on proposed significant revisions shall be provided by placing a notice in the Federal Register.” See FAR 1.501-2(b); see also Navajo Refining Co., L.P. v. U.S., 58 Fed. Cl. 200, 207-08 (2003) (“The FAR does not specifically address publication requirements for class deviations. However, the FAR does require that for ‘significant revisions’ to FAR provisions, ‘[t]he opportunity to submit written comments on proposed significant revisions shall be provided by placing a notice in the Federal Register.’ FAR § 1.501-2(b) (2002). A significant revision ‘alter[s] the substantive meaning of any coverage in the FAR System having a significant cost or administrative impact on contractors [or having] a significant effect beyond the internal operating procedures of the issuing agency.’ FAR § 1.501-1 (2002).”). Here, it seems likely that the E.O. and implementing agency deviations will have a significant cost and administrative impact on covered contractors. As a result, challenges to specific implementation requirements are possible. Such challenges are likely to add to already existing uncertainties regarding the implementation of the E.O. and the FCG.

On 10/19/2021 at 5:05 PM, Vern Edwards said:

@REA'n MakerWhy are you worried if they're currently on  contract to finish a job?  Are you worried that they'll catch Covid?

Based on labor market shortages and the obvious strong feelings some people have on the subject of vaccines, I am worried about workforce retention.

I am wondering if agency heads will be willing to grant waivers (a 60-day waiver is allowed, as I understand) to avoid mission harm for particular contracts or market segments, or if they will accept the harm if circumstances contemplated by REA'n Maker materialize.

ji20874 said:

I am wondering if agency heads will be willing to grant waivers (a 60-day waiver is allowed, as I understand) to avoid mission harm for particular contracts or market segments, or if they will accept the harm if circumstances contemplated by REA'n Maker materialize.

Just wondering the reference for the 60 provision?

It would seem that REA'n Maker's statement and the extended collective thoughts of this thread goes to this statement found in the EO (emphasis added) - "This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), provided that the Director of the Office of Management and Budget (Director) approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in Federal contracting."

I don't know whether requiring vaccination of contractor employees will cause much disruption. We'll see in the course of time. It may turn out to be a bonanza for the legal profession.

I believe the Executive Order was designed to show that the president was keeping (or trying to keep) promises he made during his campaign. It struck me as hasty, and its implementation by agencies has been shamefully unprofessional, uncoordinated, confusing, and chaotic. It has been a fiasco. SNAFU. FUBAR. Unfortunately, it is just one more example of professional decline in the administration of public affairs.

What seems obvious to me from observed behavior is that much of the American public has moved on from Covid-19 and is willing to accept risk and casualties. (Look at the crowds at football games. And don't tell me that all those people are really vaccinated.)

Our government has badly fumbled almost every facet of its Covid response and its handling of almost every other problem we have, such as leaving Afghanistan and controlling the borders. Many citizens have lost whatever faith in government they may once have had, and are no longer listening to anything the government has to say. Covid fatigue. Crisis fatigue.

In the 1990s President Clinton wanted a reformed government that works better and costs less. He didn't get it. What we have now is a government that barely works and costs hundreds of fortunes.

Quote

It may turn out to be a bonanza for the legal profession.

It will be interesting to see what all the inevitable wrongful termination lawsuits uncover.

We're still talking about the EO on COVID vaccinations for federal contractor employees, right?  Compliance with the Executive Order and the FAR Clause Deviation will not force any employee terminations.  A contractor's choice to terminate an employee (instead of re-assigning to other work and/or another workplace) is wholly a contractor's choice which is not driven by compliance with the EO. 

If we're talking about the EO for federal employees, well, that should be discussed in a different thread.  This thread is for the EO on COVID vaccinations for federal contractor employees.

@ji20874 When a contractor derives its entire revenue from contracts with the Federal Government and an exemption for work-from-home no longer exists, then there is no choice.  A contractor has to make vaccination mandatory for all employees, and then protect itself from contractual noncompliance by setting rules for employee's noncompliance (termination being one of the possibilities for violation). To deny logical connection to the EO or the FAR clause wouldn't be plausible.

Talking about small and medium size contractors with no diversified revenue base.

ji20874 said:

A contractor's choice to terminate an employee (instead of re-assigning to other work and/or another workplace) is wholly a contractor's choice which is not driven by compliance with the EO.

That's disingenuous.  Even the largest employers will only carry a client-facing employee for at most 60 days without a billable objective.   If you're a small business employee, no contract no paycheck. Immediately.

As I said in my original post, contracts are not an abstraction.  They represent real people with real lives.  What you choose to believe to make yourself feel better about jeopardizing the paycheck of a law abiding citizen is up to you.

REA'n Maker said:

That's disingenuous.

No, that's truth.

It's not a matter of feeling good, and it's not matter of a contracting officer jeopardizing the paycheck of a law-abiding citizen; rather, it's a matter of a contractor employee jeopardizing his or her own paycheck for non-compliance with his or her own company's policies.  Sure, the company policy might be affected by the EO, especially if the contractor depends on federal contracts for its business.  But neither the EO, the clause, or the guidance requires any contractor to terminate any employee.

The company has choices -- the contractor employee has choices -- only the contracting officer has no choice in this matter, as he or she must include the clause in contracts in accordance with agency instructions.

The modifications to add the clause to existing contracts are bilateral, right?  That means the contractor can try to negotiate for whatever price or other contract adjustments it needs to deal with any added costs or other impacts of maintaining a vaccinated workforce.  I wonder if any contractors are seeking adjustments, or if they are all perfunctorily signing the bilateral modifications?

Anyway, I think this thread's purpose is to talk about faithfully implementing the EO.  That's what I'm trying to do.

A contractor can reserve a right to claim future costs and schedule relief associated with compliance on cost-type contracts.  More problematic for FFP type, because (1) no firm data to predict impacts, (2) the FAR/DFARS clauses capture not only the existing current guidance, but conveyed through FAQ and as amended during the performance of the contract.  Today's decision to accept the clause will have a tiny impact on profit. Similar logic applies to T&M.

On 9/30/2021 at 3:38 PM, styrene said:

Question:  Is anyone hearing that their agency wants to incorporate the clause into actions valued at less than the SAT or in actions that are not included as part of the EO?  If so, what are your opinions on this idea?

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.   They also appear to want to have it flowed on all "subcontracts" in excess of MPT (presumably including those for 'products'), but this conflicts with FAQ #13 provided by the Smarter  Safer Federal Workforce Task Force.  

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the micro-purchase threshold, as defined in Federal Acquisition Regulation 2.101, performed in whole or in part within the United States or its outlying areas.

NOTE: "and are for services, including construction" is not included in their paragraph (d).

Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.

I found this matrix interesting from the viewpoint that at this point only 6 executive agencies are shown.  I can imagine what it might look like when all are shown side by side.

https://www.crowell.com/files/Executive-Order-14042-Agency-Class-Deviation-Guidance-A-Side-by-Side-Comparison.pdf

Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.   They also appear to want to have it flowed on all "subcontracts" in excess of MPT (presumably including those for 'products'), but this conflicts with FAQ #13 provided by the Smarter  Safer Federal Workforce Task Force.  

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the micro-purchase threshold, as defined in Federal Acquisition Regulation 2.101, performed in whole or in part within the United States or its outlying areas.

NOTE: "and are for services, including construction" is not included in their paragraph (d).

It is ridiculous to include producers and material suppliers in this mandate, if it exceeds the scope of the Executive Order. So will they require producers and suppliers to certify to the prime and/or its subs that they are in compliance? Actually that might be easy if they are in compliance with the scope of the executive order, if it excludes such firms.

NASA may be concerned with the purity of products that might directly or indirectly expose its employees and space travelers. I’m guessing that there are already protocols for sanitizing anything that space travelers (formerly known as “astronauts” 🤪) might be exposed to.

From today's Washington Post:

Quote

The White House coronavirus response coordinator, Jeff Zients, indicated that the Biden administration could be flexible as it enforces the president’s executive order requiring federal workers and government contractors to vaccinate their workers...

Federal agencies and contractors are expected to educate, counsel and accommodate their unvaccinated workers even after the deadline to persuade them to receive vaccine doses before terminating them, he added. Federal employees face a vaccination deadline of Nov. 22; contractors have a Dec. 8 deadline.

https://www.washingtonpost.com/nation/2021/10/28/covid-delta-variant-live-updates/

My company has received a bilateral contract modification, which includes the Contractor’s Statement of Release with general resemblance to 43.204(c)(2).  Feels a bit over the top, given the Task Force Guidance FAQ had been updated  several times since its original issuance.  All valid and necessary updates/clarifications, but still a moving target for someone trying to estimate the future costs of compliance.

Do you want to propose a contract price adjustment to reflect your risk?  Or have you already signed the mod and returned it?

The State of Florida has sued the Biden Administration over the vaccine mandate.

Quote

1. Relying on a statute authorizing the President to “prescribe policies and directives that the President considers necessary to carry out” the Federal Property and Administrative Services Act of 1949 (FPASA), 40 U.S.C. § 121(a), the Biden Administration seeks to compel millions of Americans who work for government contractors to receive a COVID-19 vaccine.

2. Nothing in that statute authorizes such a radical intrusion on the personal autonomy of American workers—especially, as is the case here, when many of those workers are officials of a sovereign state.

3. But even if FPASA did authorize such a mandate, the Biden Administration’s vaccine requirements would still be unlawful because the manner in which they were enacted violates fundamental principles of administrative and procurement law.

The link below will take you to the full complaint filed in a U.S. District Court.

http://myfloridalegal.com/webfiles.nsf/WF/GPEY-C88HXK/$file/complaint.pdf

We think the path forward is to indicate our readiness to accept the incorporation of the clause, provide assurance of compliance, but push back on Release language due to unknown at present impact on cost and schedule. We don't have any meaningful historical data to measure the risk or support any certain monetary adjustment. Would you consider this a responsible approach? I think it aligns well with the way you framed it--faithful implementation of the EO--in its essential part of ensuring adequate safety protocols.

I would refuse to sign a release.

On 10/26/2021 at 4:29 PM, Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.

HUD is requiring the clause to be included in all contracts exceeding the SAT.  How it is to be applied at the is to be applied at the contractor level is not clear and confusing.

Contracting Universe said:

We think the path forward is to indicate our readiness to accept the incorporation of the clause, provide assurance of compliance, but push back on Release language due to unknown at present impact on cost and schedule. We don't have any meaningful historical data to measure the risk or support any certain monetary adjustment. Would you consider this a responsible approach? I think it aligns well with the way you framed it--faithful implementation of the EO--in its essential part of ensuring adequate safety protocols.

Vern Edwards said:

I would refuse to sign a release.

I agree. Tell them you won’t sign the release due to unknown cost and schedule impact possibilities due to fluctuating requirements, as you stated.

Reuters: "From Boeing to Mercedes, a U.S.worker rebellion swells over vaccine mandates"

https://www.reuters.com/world/us/boeing-mercedes-us-worker-rebellion-swells-over-vaccine-mandates-2021-11-02/

On 10/29/2021 at 10:04 PM, joel hoffman said:

I agree. Tell them you won’t sign the release due to unknown cost and schedule impact possibilities due to fluctuating requirements, as you stated.

I concur as well.

I don't know why anyone would sign a release considering the clause used provides a link to a website and FAQ page that is changing constantly. If the "sigma alpha mu variant" shows up this winter, they may update it to say all contractors must wear hazmat suits while in conference calls and using the restroom. Am I being a bit ridiculous? Perhaps, but nothing surprises me of late. 

FAR 52.223-99(c) - Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

🤨

This just in:

Quote

The following is sent on behalf of Lesley A. Field, Acting Administrator for Federal Procurement Policy

/////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////

Colleagues,

The Safer Federal Workforce Task Force (Task Force) has released new FAQs for Federal contractors, pursuant to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The new FAQs for Federal contractors cover accommodations, enforcement, compliance, affiliates, and vaccination documentation.

All Task Force guidance for Federal contractors can be found here: https://www.saferfederalworkforce.gov/contractors/

As a reminder, we look forward to discussing these and related issues further at our upcoming office hours on Friday, November 5. Thank you for your continued attention to this critical ongoing work to support the health and safety of the Federal workforce, including Federal contractor employees.

Status: in response to the request, the CO removed the Release language.

Thanks to all who furnished their opinion and advice.

While theoretical at least for now for my company, the question for pre-priced arrangements, FFP and T&M Labor, remains. What should be the basis for adjustment(s) in price or rates? How should a contractor track the costs of compliance so to assess them proportionally to the entire set of contracts, not only future but currently active?  Not perfect analogy, but by way of providing contrast--the CMMC and other cybersecurity requirements have no retroactive application.

On 11/2/2021 at 12:13 PM, WifWaf said:

This just in:  "The following is sent on behalf of Lesley A. Field, Acting Administrator for Federal Procurement Policy..."

I have to ask, "So what?"

The EO permits the Safer Federal Workforce Task Force (SFWTF) to issue definitions and protocols, subject to approval (via a specific determination) by OMB. 

https://www.federalregister.gov/documents/2021/09/28/2021-21184/determination-of-the-promotion-of-economy-and-efficiency-in-federal-contracting-pursuant-to

On Sep 28, OMB gave its determination approving what the SFWTF published on its website on Sep 24.  In that guidance, the SFWTF posted numbered FAQs.  Among those is what appears to be their approved guidance that any of their new guidance is subject to OMB approval:

Q16: If the Safer Federal Workforce Task Force updates this Guidance to add new requirements, do those requirements apply to existing contracts?

A: Yes. Covered contractors are required to, for the duration of the contract, comply with all Task Force Guidance for contractor or subcontractor workplace locations, including any new Guidance where the OMB Director approves the Guidance and determines that adherence to the Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB plan to ensure any workplace safety protocols reflect what is necessary to decrease the spread of COVID-19.\

To the best of my knowledge OMB hasn't published anything in the Federal Register since Sep 28.

MBrown said:

So what?

You're keeping them honest. I agree with your assessment of my provided FAQ update from OFPP. In reviewing Executive Order 14042, I find that both:

1. The guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force, i.e., the "Task Force Guidance" or "Guidance" as defined and required in the EO at Section 2 Subsection (a), and,
2. "The definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply" as required in the EO at Section 2 Subsection (b),

are limited by the EO where it requires, at Section 2(c): "Prior to the Task Force publishing new Guidance related to COVID-19 for contractor or subcontractor workplace locations, including the Guidance developed pursuant to subsection (b) of this section, the Director shall, as an exercise of the delegation of my authority under the Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors...The Director shall publish such determination in the Federal Register."  Even if this responsibility was somehow delegated to OFPP, the email contents that I quoted (in full) were not in the Federal Register, and were silent on economy and efficiency anyway.

Federal Register :: Agencies - Management and Budget Office - last recently published notice was on 10/12/2021

Federal Register :: Agencies - Federal Procurement Policy Office - last recently published notice was on 9/18/2020

In my review of EO 14042 I found no other responsibilities that Lesley A. Field, Acting Administrator of OFPP could have been implementing in updating the Frequently Asked Questions.  Could you?  I was already questioning how we got here with this FAQ in our clauses, but now I really doubt whether the 1 Nov, 21 Oct, and 30 Sep 2021 FAQ updates are valid.

What's New? | Safer Federal Workforce

Published today in Bloomberg Government"

Quote

Contractors Granted Extra Four Weeks to Meet Vaccine Mandate

By Amanda H. Allen / November 4, 2021 08:48AM ET / Bloomberg Government

Federal contractors have until Jan. 4 to ensure compliance by all employees covered by the White House Safer Federal Workforce Task Force requirement to be fully vaccinated against Covid-19. The new effective date is four weeks later than the original Dec. 8 deadline.

An unpublished copy of the OSHA COVID-19 Vaccination and Testing; Emergency Temporary Standard is available on the Federal Register website.

https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard

Importantly, the employers who are "covered contractors" subject to the Safer Federal Workforce Task Force Guidance are exempt from OSHA standard.

From perspective of cost impact: OSHA provides a lengthy cost analysis (section IV. Cost Analysis for COVID-19 Vaccination and Testing ETS, § 1910.501, pdf-page 239). On the first glance, some assumptions look unreasonable. For example: "to establish a written policy in accordance with paragraph (d) of the ETS, OSHA assumes a one-time average labor burden of 5 hours of manager time per firm."  This does not seem to account for the time one may need to read and comprehend the 490 pages of ETS. This probably wouldn't be just a single person at larger companies, because non-compliance may carry hefty penalties.

OMB published a determiantion in the Federal Register this morning, Looks like it addresses the application of the EO to commercial contracts.

Section 2 of Executive Order 14042 (“Executive Order 14042” or the “order”) requires that, before Federal contractors and subcontractors must adhere to any guidance from the Task Force, the Director of OMB must approve such guidance and determine that such guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors. The actions directed by the order will ensure that parties who contract with the Federal Government provide COVID-19 safeguards in workplaces with individuals working on or in connection with a Federal Government contract or contract-like instrument.

 Contract and contract-like instrument —has the meaning set forth in the Department of Labor's proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 FR 38816, 38887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, this term shall have the meaning set forth in that final rule.

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications**.** The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public

uva383 said:

Section 2 of Executive Order 14042 (“Executive Order 14042” or the “order”) requires that, before Federal contractors and subcontractors must adhere to any guidance from the Task Force, the Director of OMB must approve such guidance and determine that such guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors.

Of course, that is a joke here. Although not directly applicable here recent appeals court rulings on the order(s) that apply to private employers appear to disagree with the President that those mandates will promote economy and efficiency…

There may well be massive disruptions and impacts upon contracting companies and contracts, if employees refuse to “cooperate”.

Three states - at a time? Interesting . . . 

"The Biden administration's COVID-19 vaccination requirement for federal contractors received another blow from US District Judge Gregory Van Tatenhove, who granted a request Tuesday to block the federal mandate in three additional states: Kentucky, Ohio, and Tennessee."

Judge Blocks Biden COVID-19 Vaccine Mandate for Federal Contractors (businessinsider.com)

I'm glad the court did a three state ban rather than a national ban.  It shows restraint that the court limited its ban to parties in dispute.  Good for that court.

On 12/2/2021 at 4:13 PM, ji20874 said:

I'm glad the court did a three state ban rather than a national ban.  It shows restraint that the court limited its ban to parties in dispute.  Good for that court.

Good observation.

Nationwide (national) injunctions by district courts seem to have become more popular since 2016. (I wonder why?) So why didn't the court issue one in this case? The judge explains his decision to limit his preliminary injunction in pages 27 and 28 of his decision.

https://cdn.cnn.com/cnn/2021/images/11/30/commonwealth_of_kentucky_et_al_v_biden_et_al__kyedce-21-00055__0050.0.pdf

For a definition of injunction, see Black's Law Dictionary:

Quote

injunction (in-jəngk-shən) n. (16c) A court order commanding or preventing an action. • To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted. — Also termed writ of injunction; equitable injunction. See IRREPARABLE-INJURY RULE.

The entry goes on to list 25 types of injunctions, including preliminary injunction:

Quote

- preliminary injunction. (1828) A temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case. • A preliminary injunction will be issued only after the defendant receives notice and an opportunity to be heard. — Also termed interlocutory injunction; temporary injunction; provisional injunction; injunction pendente lite. Cf. ex parte injunction; TEMPORARY RESTRAINING ORDER.

For general background information about preliminary injunctions, temporary restraining orders, temporary injunctions, and permanent injunctions, go to:

https://www.law.cornell.edu/wex/injunction.

See also Rule 65 of the Federal Rules of Civil  Procedure:

https://www.law.cornell.edu/rules/frcp/rule_65.

Curious about how mere district court judges can issue nationwide injunctions? For an informative discussion of nationwide injunctions, go to Judicature and read "One for all: Are Nationwide injunctions legal?" by Amanda Frost and Samuel Bray.

https://judicature.duke.edu/articles/one-for-all-are-nationwide-injunctions-legal/

On 12/4/2021 at 9:12 AM, Vern Edwards said:

Curious about how mere district court judges can issue nationwide injunctions? For an informative discussion of nationwide injunctions, go to Judicature and read "One for all: Are Nationwide injunctions legal?" by Amanda Frost and Samuel Bray.

https://judicature.duke.edu/articles/one-for-all-are-nationwide-injunctions-legal/

Thanks Vern.  This is a really interesting and informative read

About an hour ago:

"A federal judge in Georgia issued a nationwide injunction that prevents the U.S. government from enforcing a COVID-19 vaccine mandate on federal contractors, temporarily shutting down the last remaining vaccine requirement by the Biden administration."

Judge Blocks COVID-19 Vaccine Mandate For Federal Contractors (claimsjournal.com)

Here's the order: https://www.scag.gov/media/1pfaybfp/federal-contractor-order.pdf

Confusion. Contradiction.  Bad Faith. Unfair Dealing*.  Constitutional Overreach. Professional Embarrassment.   Who could have guessed?

On 10/8/2021 at 1:50 PM, REA'n Maker said:

I predict this ends badly.

 🙄

(* We were told that if the contractor won't sign a bilateral mod, the CO must add it unilaterally.)

REA'n Maker said:

(* We were told that if the contractor won't sign a bilateral mod, the CO must add it unilaterally.)

By what authority was that?

joel hoffman said:

By what authority was that?

Exactly.

Wondering about those contracts where the parties agreed to incorporate the vaccine mandate clause (or where the mandate clause was added unilaterally). Can that clause be enforced, given the injunction?

here_2_help said:

Wondering about those contracts where the parties agreed to incorporate the vaccine mandate clause (or where the mandate clause was added unilaterally). Can that clause be enforced, given the injunction?

Both the injunction coming out of the Eastern District of Kentucky and the injunction coming out of the Southern District of Georgia enjoin enforcing the clause.

Keep in mind that the injunctions issued by the two courts were preliminary, not permanent. According to the most recent decision, the government has been enjoined from "enforcing... the mandate..." I'm not sure whether that means enjoined from inserting the clause, enforcing the clause, or both.

Stand by for instructions from your superiors. Until you get them, keep doing what you were instructed to do.

Here is the DoD Memo and clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009, Revision 1)

Contracting Universe said:

Here is the DoD Memo and clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009, Revision 1)

Quote

If the contract includes a clause requiring compliance with guidance issued by the Safer Federal Workforce Task Force (“Task Force guidance”), the administering agency must take no action to enforce that clause and should inform the contractor that the clause will not be enforced absent further notice from the agency.

If the contract or order does not include a clause requiring compliance with Task Force guidance, the administering agency must refrain from attempting to insert such a clause into the document. The agency should not ask that the contractor voluntarily agree to the insertion of such a clause.

And everyone breathed a sigh of relief.

REA'n Maker said:

We were told that if the contractor won't sign a bilateral mod, the CO must add it unilaterally.)

joel hoffman said:

By what authority was that?

I only meant by what authority would require or authorize the government to issue a unilateral mod if a contractor wouldn’t agree to a bilateral mod for those existing contracts where the government was instructed to bilaterally add the clause. For those contracts, I believe that the additional requirements are out of scope.

But the follow on discussions are good info.

Vern Edwards said:

Stand by for instructions from your superiors. Until you get them, keep doing what you were instructed to do.

This makes sense to me.

One of our professional agencies gudiance:

If present in contract (original award or modified. - "COs should not modify contracts for this requirement and an email should suffice to notify contractors that the clause will not be enforced at this time."

I really think contracting officers need to follow the direction of their superiors.

ji20874 said:

I really think contracting officers need to follow the direction of their superiors.

As long as it doesn't violate something a superior has no oversight of, I agree in most situations. 

The one I would not (we all been there) is when the superior wants to go about something a different way than the CO who sees a problem with it (procurement strategy/evaluation method/SS awards/etc.). It’s my name on the end product and I value that over a superior’s approval.

I think an amendment to the statement makes it universal:

“I really think contract specialist need to follow the direction of their superiors.”

This thread is about implementing the President's COVID19 mandate for federal contractor employees.

On that topic, the topic we are talking about in this thread, I really think contracting officers need to follow the direction of their superiors.

Constricting Officer said:

“I really think contract specialist need to follow the direction of their superiors.”

ji20874 said:

I really think contracting officers need to follow the direction of their superiors.

The point being the superior for this particular discussion being the agency head!  Ref. FAR 1.602.

Has DoD revised its class deviation on enforcement of the vaccine mandate, to reflect the nation-wide injunction? The Dec 2 deviation (2021-O0009 rev 1) is the latest one I can find and it only addresses the 3-state injunction.

Fara Fasat said:

Has DoD revised its class deviation on enforcement of the vaccine mandate, to reflect the nation-wide injunction? The Dec 2 deviation (2021-O0009 rev 1) is the latest one I can find and it only addresses the 3-state injunction.

OUSD(A&S)/DPC Memo, 9 Dec 21

Thanks. Could you also provide the link to the page this was on? I've been using https://www.acq.osd.mil/dpap/dars/class_deviations.html 

and https://www.acq.osd.mil/dpap/ops/policy_vault.html  but the memo was on neither.

On 12/10/2021 at 4:02 PM, Fara Fasat said:

Could you also provide the link to the page this was on?

It is on the DPC class deviations page you listed. Just search for “Revision 2” if it isn’t standing out.

On 12/10/2021 at 5:02 PM, Fara Fasat said:

Thanks. Could you also provide the link to the page this was on? I've been using https://www.acq.osd.mil/dpap/dars/class_deviations.html 

and https://www.acq.osd.mil/dpap/ops/policy_vault.html  but the memo was on neither.

It is listed here:

https://www.acq.osd.mil/dpap/pacc/cc/COVID-19.html

Bloomberg Law has reported that a federal district court in Louisiana has issued yet another (third) preliminary injunction against the vaccine mandate. It applies to Lousiana, Mississippi, and Indiana.

https://www.constangy.com/assets/htmldocuments/Vax.Contractors.Louisiana v. Biden 12.16.21.pdf

The stay on OSHA’s Emergency Temporary Standard is dissolved.  OSHA can mandate employers with 100 or more employees be vaccinated or tested.

The Court of Appeals for the 6th Circuit opinion, issued today, is viewable here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf

On 12/17/2021 at 8:05 PM, WifWaf said:

The stay on OSHA’s Emergency Temporary Standard is dissolved.  OSHA can mandate employers with 100 or more employees be vaccinated or tested.

The Court of Appeals for the 6th Circuit opinion, issued today, is viewable here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf

Judge J. Larsen delivered the dissenting decision on pp 39-57.

The dissent opinion is very compelling regarding certain aspects of the OSHA rule, in particular to rules beyond the workplace (e.g., OSHA’s authority is limited to workplace safety - not remotely, home based work). In addition, it addresses weaknesses in OSHA’s determination of the existence of “grave danger”. Looks like there may be grounds for appeal…

On 12/18/2021 at 7:32 AM, joel hoffman said:

The dissent opinion is very compelling regarding certain aspects of the OSHA rule, in particular to rules beyond the workplace

Yup, SCOTUS sided with you here.  There is no precedent for a permanent alteration of our bodies as a requirement for work (my words).

https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

WifWaf said:

Yup, SCOTUS sided with you here.  There is no precedent for a permanent alteration of our bodies as a requirement for work.

https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

It is also interesting that employees of companies with less than 100 employees don’t pose a “grave danger” to their fellow employees or to the general public.

From Newsweek magazine: “According to data from the U.S. Census Bureau, a total of 98.1 percent of companies in the U.S. employ fewer than 100 people, with companies with less than than 10 employees accounting for 78.4 percent.”

Reported “BY EWAN PALMER ON 9/10/21 AT 9:06 AM EDT”

There is a ton of general interaction with the general public by employees of small firms or self employed persons.

So why should only certain company employees face mandatory vaccination or be subject to testing or termination??

Aaaaaand we're back on...

https://www.govexec.com/workforce/2022/04/appeals-court-reinstates-bidens-vaccine-mandate-federal-employees/365413/

Gosh. Who would have ever predicted such a debacle?

On 10/8/2021 at 1:50 PM, REA'n Maker said:

I predict this ends badly.

On 10/14/2022 at 9:08 AM, REA'n Maker said:

Gosh. Who would have ever predicted such a debacle?

Looks like the story is about to get even better! Only time will tell. 

https://www.saferfederalworkforce.gov/contractors/

Quote

"....agencies should not: (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042."

So now presumably the concept of "unenforceable clauses" will be taught in CON 090.  And Pfizer has just admitted they had zero data proving that vaccinations slowed the spread of the virus which was the alleged impetus behind the entire EO.  This is why we can't have nice things.