Jump to content

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contracts


Recommended Posts

1 hour ago, 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!   

Link to comment
Share on other sites

  • Replies 134
  • Created
  • Last Reply

Top Posters In This Topic

1 hour ago, 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.

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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?

Link to comment
Share on other sites

17 minutes ago, 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.

Link to comment
Share on other sites

24 minutes ago, 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?

Link to comment
Share on other sites

1 hour ago, 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

Link to comment
Share on other sites

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.

 

Link to comment
Share on other sites

21 minutes ago, 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.

Link to comment
Share on other sites

14 minutes ago, 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.

Link to comment
Share on other sites

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

Link to comment
Share on other sites

1 hour ago, 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.

Link to comment
Share on other sites

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.

 

Link to comment
Share on other sites

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. 

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

15 hours ago, 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."

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

@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.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


×
×
  • Create New...