Contracting Universe

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

An unpublished copy of the OSHA COVID-19 Vaccination and Testing; Emergency Temporary Standard is available on the Federal Register website.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

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.

Status: in response to the request, the CO removed the Release language. Thanks to all who furnished their opinion and advice.

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.

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.

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.

@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.