RF-SA

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/

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

On 10/4/2021 at 2:29 PM, Mike Twardoski said:

My company is worried as well. The DoD deviation was just released, and we're bracing for it in coming awards and mods. There's a fear that PCO's will go all in on this deviation apply it to every award and mod they issue. And I get it, given the tone of the EO. But, requiring all covered contractor personnel to be vaccinated within 2 months seems an ambitious mandate, diplomatically speaking. 

Feel like there's going to be some fierce pushback from industry on this...

As are we. I wear a few different hats in my organization currently and this scare has caused me to pivot entirely to contracts, RFQ's and awards, looking for this clause and figuring out how we will either strike it, or how we can comply without a mass departure. 

19 hours ago, Krimz said:

As always, it depends.  If you were to refuse a contract because you refused to require your employees to get the COVID vaccine, then it's not likely you will get any other contract that requires your employees to get the COVID vaccine as long as you continue to submit a quote, proposal, or bid in response to the solicitations with this clause (when it becomes available).  If you only perform as a subcontractor and you refuse to agree to the COVID vaccination clause, do you think the primes will continue asking you to do work for them given your position?

Oh, I have no doubt that primes would not continue to ask. This question was more for my CEO's benefit. I appreciate your response! Thank you! 

45 minutes ago, 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

Thank you very much!! Appreciate your response! 

15 hours ago, Vern Edwards said:

I don't know.

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 Vern, I appreciate the comment! 

If we were to refuse a contract because of this, will the agency note that and stop sending contracts our way? Or does the process reset each time, even if you refuse a contract once from an agency? 

21 minutes ago, Vern Edwards said:

The answer is still yes. You can ask. And you can always refuse the contract if they insist on including the clause.

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

6 minutes ago, Vern Edwards said:

So you want to know whether, after have "received" (have been awarded) a contract, you can ask the government to modify it to remove some clauses that you have already signed up to. Is that what you mean?

If so, the answer is yes, you can ask. Any more questions?

Sorry Vern, I should have been more clear. 

I am referring to asking about FAR clause removal prior to signing anything. Typically, before I sign any PO, I read the T&C's sent with the PO, redline/negotiate anything that we are either not able to accommodate or do not want to sign to as a company, and send these back to the CO. Once the CO responds and we come up with agreeable terms for both parties, then I'll sign the PO under the negotiated terms. 

The question I have is really in reference to this guidance, released by the Safer Federal Workforce Task Force;

"Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?

A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042."

The vast majority of our contracts are under the SAT and since we are COTS, we tend to have a lot of exclusions. The above language has me a little worried that even if out of scope of the actual EO, if this clause appears in any RFQ or PO, even if we are out of scope, that we would be held. I was asking about the potential of asking for a FAR clause removal prior to signing any contract. 

Hopefully this makes a little more sense. I do appreciate your response and the information you provided is something that I did not know about before. 

Thank you!!

2 hours ago, ji20874 said:

Yes, you can ask for a clause to be removed from your contract.  You can always ask.

But as policyguy suggests, wait and see what the text says.  If the clause text makes it clear that it doesn't apply to your contract, there is no harm in having the clause in your contract.

For example, the clause at FAR 52.219-9, Small Business Subcontracting Plan, is included in many non-set-aside contracts -- if the contractor is a small business, para. (a) of the clause tells us that the clause does not apply.  The clause is said to be self-deleting -- it is still there and it encumbers page space, but it has no effectivity.

Thanks! I have never needed to ask for a FAR clause to be removed, but this is great information for the future. 

We should be out of scope for the requirement, depending on the final language, but it's suggested that it be inserted anyways into contracts that are out of scope. Even if we are out of scope, I worry that we might still be held to it in the event it stays in. I will wait for the language to be released though before I start to stress too much, since there is still time before anything actually takes effect. 

Thank you!! 

2 hours ago, policyguy said:

You will need to see the clause that is flowed down to your company from the Prime. 

It's my understanding each Department & Agency will issue its own FAR Class Deviation and there is a possibility that, depending on the Department/Agency, the clause may apply to COTS.  It will all depend on the policy that issued in that Department/Agency FAR class deviation. 

You also may want to locate the website for the Department/Agency that you support in the next weeks to see what guidance they are providing to contractors.

Hope this helps.

Thank you for the information!! I appreciate the response! 

Good day everyone,

I think I know the response to the question I am posting, but I wanted to ask anyways, just in case I am wrong. 

As the contractor, when I receive a contract that has FAR flow-downs included, can those be redlined/asked to be removed? I am asking specifically regarding the upcoming FAR clause creation regarding Federal Contractor's and Vaccine Requirements. I have been reading that these will be implemented through a FAR clause. My company is a COTS supplier and per the EO, we should be out of scope. I see in the guidance issued on the 24th of September however, that agencies are encouraged to put in the vaccine requirement even for out of scope contracts, such as contracts under the SAT. I know the clause has yet to be crafted/released (October 8th is the deadline if I am not mistaken), but I would like to try and get as ahead on everything as I can. 

I would like to try and remain out of scope if at all possible, but if the vaccine requirement flows down in a FAR, do I really have any power to redline or ask for it to be removed? Or if flown-down, is my only option to reject the contract as to not subject the company to a vaccine requirement? 

Thank you in advance! If any clarification is needed, I am more than happy to do so. 

RF-SA

6 hours ago, 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

Good afternoon,

As I am sure everyone has heard or will hear, President Biden issued a statement today regarding the requirement of vaccination against COVID for Federal Contractors and Subcontractors. (EO linked below)

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/

It appears that per the EO, this has more to do with services than it does with product procurement. The order does have a small potential grey area however that I was hoping someone could help me with understanding. 

Under Section 5(a) it reads:

Sec. 5.  Applicability.  (a)  This order shall apply to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:

          (i)    it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
          (ii)   it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
          (iii)  it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
          (iv)   it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public;
     (b)  This order shall not apply to:
          (i)    grants;
          (ii)   contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
          (iii)  contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
          (iv)   employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
          (v)    subcontracts solely for the provision of products.

In my understanding, this effectively eliminates the vaccine requirement for those who sell only products under a subcontract or any order with a value under the SAT. (If anyone sees error with my understanding, please correct me). 

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?).

I am more than happy to offer explanation in greater detail if anything is unclear. My question really boils down to the difference between a contract and sub contract. In my understanding, a subcontract would be a Prime issuing an order on behalf of an agency rather than the agency buying directly from us. This would be A(agency)-->B(Prime)-->C(my company) The agency buying directly from us would be considered a contract if I am not mistaken since there is no other party and it goes from A(agency)-->B(my company). 

Thank you in advance!! Have a great day! 

RF-SA

16 minutes ago, C Culham said:

 

I will just let Vern reply.

I still encourage PTAC contact for the long haul as I am sure they can help with reality.

 

Hello C Culham, 

Thank you for all of your help! I am going to be contacting PTAC with additional questions! I really want to thank you for opening my eyes to them as a resource!

RF-SA

6 minutes ago, Vern Edwards said:

You have to flowdown to commercial suppliers of the products that will go into the products that you are supplying to the Buyer. You don't have to flow down to all of your commercial suppliers. I do not think you have to flowdown retroactively to suppliers who furnished products in inventory.

I don't think it will affect your other business unless buyers want to flow down the clause down to you and you don't want to accept it or flow it down further. Then you will have effectively taken yourself out of that market.

Hello Vern,

Thanks for the quick response! I appreciate your insights! 

RF-SA

1 hour ago, Vern Edwards said:

@RF-SAFirst, read the definition of "commercially available off-the-shelf item" in FAR 2.101.

Okay, so the "Buyer" is your customer and you are the "Supplier."

I think FAR 52.244-6 is in the Buyer's contract with the government. I presume that the Buyer considers you, the Supplier, to be a COTS subcontractor. FAR 52.244-6 tells the Buyer to include the clauses paragraph (c)(1) in all COTS subcontracts to the extent that each is applicable, and to require you, as a COTS subcontractor, to include those clauses in their own contracts for commercial items that are to be delivered to the Buyer, and to flow them down to their own COTS subcontractors.

You asked two questions:

FAR 52.244-6(c)(1) and (d) applies to COTS subcontractors. You are a COTS subcontractor to Buyer, and Buyer has effectively included FAR 52.244-6 in its contract with you. As a COTS subcontractor, you must flow the clause down to your own commercial item subs that will provide anything incorporated into the product that you sell the Buyer, to the extent that they are applicable.

According to the language Buyer included in its contract with you, you must include the clauses listed in FAR 52.244-6 in your subcontracts.

However, you should check with your customer ("Buyer") to ask how they interpret the clause, because FAR 52.244-56 says "awarded under this contract."

Bottom line: You should talk this over with Buyer.

Hello Vern,

Yes, the "Buyer" is our (potential) customer and we are the "Supplier". 

So what I am hearing you say (please correct me if I have anything wrong!), is that if this clause is included in our contract, we are required to flow down to our suppliers, who supply our parts to build this product. I see the wording "as applicable" in the clause and in your post. Can I assume that "as applicable" means flow-down to any of our suppliers who supply us with a commercial or COTS item? 

I am going to ask you the same question I posed to C Culham since you have a vast experience in contracting. In your opinion/experience, if we were to turn down this contract because of the flow-down requirement, does that make us appear less stable to any future primes or subcontracts that come our way? If we were to deny this contract, do you feel there would be, or there has the potential to be, an ill-impact on our future contracting? (This is understandably an opinion and I am curious to hear what you have to say if you feel comfortable responding). 

I will check with the Buyer for a final decision by them. Thank you for your insights and help! 

RF-SA

2 hours ago, C Culham said:

First off I suggest that for your extended research you consider contacting a Procurement Technical Assistance Center (PTAC) near you if you are a small business.   As a free service I suspect strongly that they will be able to assist you with regard to application of the clause for you as a prime or subcontractor to a Federal government contract.   You can find a PTAC by utilizing this website https://www.aptac-us.org/

Now to your post.   

COTS by definition of the Federal Acquisition Regulations (FAR) are considered "Commercial Items".  You can find the definitions in FAR Part 2. https://www.acquisition.gov/far/part-2#FAR_2_101

I will admit some confusion in your post as the quoted language you have provided in your post as to what 52.244-6 says is not what is found in the FAR.   It appears as if the agency issuing the solicitation/contract has attempted to add some clarifying language that I will admit is confusing to me. For clarity sake you might take a look at what the clause actually reads as in the FAR.   https://www.acquisition.gov/far/52.244-6

Also I suggest a read of the "prescription" with regard to placement of the clause in a solicitation/contract.   The prescription is the FAR instructions to government of when to place the clause in a solicitation/contract.   The prescription is found here....https://www.acquisition.gov/far/44.403

Now to a definition of what a subcontract is it becomes a looping discussion of confusion and hence my recommendation to contact a PTAC for assistance.   If you are not a small business then you would try seeking out experts in the field of Federal contracts where a PTAC may be able to provide references at least.  I say this noting that FAR subpart 44.4 provides that a definition lies within FAR part 12 as to what a subcontractor is - see FAR 44.401.   A further read of FAR part 12  is not real specific with a definition and likewise brings applicability of COTS which is primary to your questions.  

So beginning point for me that might help in your research is this.... if you as a prime receive a commercial item contract from the government it would appear that 52.244-6 should not be in that contract.   If you, as a subcontractor to a prime where the prime has received an other than commercial item contract the clause will be in the primes contract and will be flowed down to you as a subcontractor.   You as a subcontractor are then required to flow the clause down to your subcontractors pursuant to paragraph (d) of the clause.  If the prime received a commercial item contract then it would appear that 52.244-6 should not be in their contract to flow down to you as a subcontractor.

I hope this helps with your continued research to determine applicability of 52.244-6 if such a clause appears in contract (prime or sub) awarded to your company.

 

Good morning C Culham, 

Thank you for the detailed response! I am fairly new at this and really have only been working on this side of contracting for a few months. We are a small business and I had no idea about the PTAC. I will reach out and give them a call!

I have responded to Vern's post as well, but the language quoted was directly from the buyer's PO T&C's. (My apologies, I should have been more clear in my original post!) They do quote FAR 52.244-6 a little later in the paragraph though and the quote lines up with the FAR definition that I read on https://www.acquisition.gov/far/52.244-6

Thank you, I will absolutely take a look at  44.401 and 44.403 and see what I can learn. 

In this case, we are at least a subcontractor receiving from a prime, we are not the prime. I do not know if the buyer is buying for a contract or not, I have yet to see an official order. I appreciate your clarifications. 

If I might ask one more question, in the event that we ARE required to flow this down to our subcontractors, would there be any blow back if we chose to deny this sale? Would that be a huge "no" if we want to keep contracting, both as a prime and as a subcontractor? We have very easy contracts for our suppliers and I would hate to complicate things and muddy the waters by having to flow-down 52.244-6. My CEO feels the same way and is not excited about the idea of having to flow-down this clause. I just want to make sure that we aren't marking ourselves as a bad prime or bad subcontractor by denying a sale due to a potentially forced flow-down. 

Thank you for your response and information! This has been very helpful for my question. I will most definitely read 44.401/403 and will be giving the PTAC a call about this. 

RF-SA
 

1 hour ago, Vern Edwards said:

I think the clause quoted by RF-SA is from a private buyer's contract or order, not from a government contract.

Hello Vern,

Yes, this is in a private buyer's PO T&C's. 

Good afternoon,

I am new to the world of contracting! Our company sells exclusively COTS items and occasionally gets agencies and primes that would like to contract with us. I came across a contract a a couple days ago that had a mandatory flow-down of FAR 52.244-6 to all applicable subcontracts, (i.e. any of our suppliers who sell us commercial items in my understanding). 

The exact language is as follows for clarity:

[Buyer is a government contractor/subcontractor and is subject to various federal laws, executive orders, and regulations that may also be applicable to Supplier and its subcontractors. Supplier hereby agrees that to the extent required by the reference clauses below, and only as applicable, it shall comply with, incorporate into its subcontracts, and require its subcontractors at all tiers to incorporate in their lower tier subcontracts, the following contract clauses as continuously updated by the government and found at https://www.acquistion.gov/content/52244-6-subcontracts-commercial-items.

For the purpose of Supplier's compliance with this mandatory requirement, "Contractor" shall mean Supplier, "Contracting Officer" shall mean Buyer, and "subcontracts awarded under this contract" shall mean any lower tier company that provides services to Supplier in support of the government contract where Supplier is supporting Buyer with any portion of work.]

I had a couple of questions that I have been researching, but cannot find a clear or concise answer to. 

1. Since we sell COTS items, are we required to flow-down FAR 52.244-6 or does our company being COTS make this not applicable? In the paperwork it says "mandatory requirement", however I am unclear on the wording and if it is only mandatory if we sell commercial items. Is this typically a mandatory requirement for commercial item suppliers? Based on the language, it sounds like if we sold commercial items, it would apply. I am unsure since we sell COTS. I am unsure if OUR status as COTS precludes us from the flow-down. 

2. In the language, it mentions OUR suppliers supporting the work that will be sent to buyer. We are a build-to-stock company and keep products stocked on shelves for easy and painless sales. How is this supposed to flow-down is the work is already done and products are already built? We do not typically bid this subcontract work out. We buy the needed part(s) from our preferred/vetted supplier and then use it to assemble our product. Does this still count as an "award"? 

Thank you in advance. If I can add clarity to anything, please let me know.