FAR Council, CAAC, and DoD Release COVID-19 Guidance
The FAR Council, the Department of Defense (“DoD”), and the Civilian Agency Acquisition Council (“CAAC”) have released guidance for federal government contractors on COVID-19 safeguards required by President Biden’s September 9, 2021, Executive Order 14042 (the “Order”) and the Safer Federal Workforce Task Force’s September 24, 2021, Guidance, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
On September 30, 2021, the FAR Council published Issuance of Agency Deviations to Implement Executive Order 14042 (the “Memorandum”), which includes the FAR Deviation Clause, 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (the “FAR Clause”). The Memorandum directed agencies to release class deviations and guidance thereto to contracting officers prior to October 15, 2021, like the CAAC and DoD have done (outlined below). Further, pursuant to the Clause, so long as performance is ongoing, all contractors must comply with the guidance issued by the Safer Workforce Task Force, so long as the work is performed in whole or in part within the United States.
Civil Acquisition Agency Acquisition Council
On September 30, 2021, the Civilian Agency Acquisition Council (CAAC) released a memorandum authorizing all civilian USG agencies to issue a class deviation to implement the Order. We discuss, in depth, the CAAC’s memorandum and the requirements therein here.
Department of Defense
DoD published Class Deviation 2021-O0009 to provide direction to DoD contracting officers on how to incorporate the new DFARS clause at 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0008) (the “DFARS Clause”). The DFARS Clause is substantively the same as the FAR Clause. The key takeaways are:
- Contracting officers must insert the DFARS clause into: (1) solicitations issued on or after October 15, 2021 and contracts, task orders, and delivery orders awarded pursuant to those solicitations, that are expected to exceed the simplified acquisition threshold (SAT), (2) contracts, task orders, and delivery orders, awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, (3) all extensions or renewals issued on or after October 15, 2021; and (4) existing indefinite-delivery or -quantity contracts that are anticipated to have orders that exceed the SAT and have an ordering period beyond October 15, 2021.
- The DFARS Clause need not be included in contracts with Indian Tribes.
- The class deviation remains in effect until incorporated into the FAR or until rescinded.
As the situation rapidly changes, we continually review and update our clients on the latest guidance to ensure that our clients have both safe and compliant workplaces.