On October 1st, 2021, the Federal Acquisition Regulatory (FAR) Council released a draft COVID-19-related contractor clause for covered contracts and subcontracts. Basically, the clause followed the release of President Joseph Biden’s Executive Order 14042. Overall, the Order ensures that parties who contract with the federal government provide adequate COVID-19 safeguards to their workers. Earlier, in September, President Biden announced vaccination requirements for federal workers to stop the spread of the coronavirus.
About the FAR Council
Generally, the FAR Council assists in directing and coordinating federal government-wide procurement policies and regulatory activities. Specifically, with the Council, the Administrator ensures that procurement regulations created by executive agencies are consistent with Federal Acquisition Regulations. The Council also manages, coordinates, controls, and monitors the maintenance and issuance of changes in the Federal Acquisition Regulations.
Background of the COVID-19-Related Contractor Clause
In short, President Biden signed Executive Order 14042 on September 9th, 2021. Afterward, the Federal Register published the Order on September 14, making it law. Specifically, the Order requires agencies to include a clause requiring contractors and subcontractors to comply with all guidelines published by the Safer Federal Workforce Task Force. Furthermore, the clause applies to solicitations and contracts for services, including construction. Finally, the Order also required the FAR Council to develop the contract clause and provide initial policy direction.
Text of the COVID-19-Related Contractor Clause
Specifically, the following clause must appear in all federal contractor contracts:
(a) Definition. As used in this clause, the United States or its outlying areas means—
- The fifty states;
- The District of Columbia;
- The commonwealths of Puerto Rico and the Northern Mariana Islands;
- The territories of American Samoa, Guam, and the United States Virgin Islands; and
- The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.
(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).
(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/.
(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.
Scope and Applicability of COVID-19-Related Contractor Clause
Finally, affected agencies need to include the clause in the following:
- new contracts awarded on or after November 14 from solicitations issued before October 15;
- new solicitations issued on or after October 15 and contracts awarded pursuant to those solicitations;
- extensions or renewals of existing contracts and orders awarded on or after October 15th, 2021; and
- options on existing contracts and orders exercised on or after October 15th, 2021.