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I've attended a couple of webinars this week on the topic, and the prediction on enforcement seems to be similar to how FAR 52.223-6 Drug-Free Workplace is enforced...which from my view, isn't all that much. We shall see. I've heard my Government counterparts lament that they're busier than ever (for both COVID and non-COVID related reasons), so adding enforcement to the plate would seem to be very low priority. 

There aren't any reps or certs yet, so presumably, the Government will have to take a contractor's word for it when it comes to attesting its workforce is 100% vaccinated. 

Consequences for non-compliance? Seems like potential negative CPARS, Past Performance hits, and the possibility of whistleblowers coming to the fore. 

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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

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The following bullets are from the GSA briefing to which RF-SA provided a link, Chart 13:

  • CO will enforce just like any other contractual requirement.
  • Taskforce Guidance tells contractors that they may assume the subcontractor is complying with the clause absent credible evidence otherwise.
  • If concerns arise about vaccination status of a particular employee, CO should ask the contractor to confirm the employee compliance with the vaccination requirement.
  • COs should not be directly requesting employee vaccination information. Work through contract administration POCs.

Now, as for that first bullet, we've had some serious arguments in this forum over the past few months about enforcing socio-economic clauses. Some of our most experienced members believe in proactive CO monitoring and enforcement. Some think they are moral imperatives. I'm sure that there are other contracting personnel who feel much the same, if not quite as ardently.

So, ask yourself: What does that first bullet tell contractors about what to expect?

I doubt that there will be much in the way of aggressive monitoring and enforcement at most agencies. But I don't know. There may be issues where contractor employees are performing on site and mixing with government employees.

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13 hours ago, Vern Edwards said:

CO will enforce just like any other contractual requirement.

 

13 hours ago, Vern Edwards said:

But I don't know

Me either.  It just seems that a Federal contract is sometimes its own contradiction in twists and turns as to responsibilities of a CO and a contractor.  In reading the latest comments in the thread my mind went to 52.203-13 and  the thought, as I understand, that an Executive Order has the effect of law. 

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See: What Is An Executive Order? American Bar Association (Jan. 25, 2021)

https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/

See also: Congressional Research Service, Executive Orders An Introduction (March 29, 2021)

https://crsreports.congress.gov/product/pdf/R/R46738

In 1957, Congress printed a very interesting study of executive orders. See: Executive Orders and Proclamations: A Study of A Use of Presidential Powers, House of Representatives, Committee on Government Operations (December 1957). Available online through Google Books:

https://books.google.com/books?id=nnLRAAAAMAAJ&printsec=frontcover&dq=EXECUTIVE+ORDERS+AND+PROCLAMATIONS:+A+STUDY+OF+A+USE+OF+PRESIDENTIAL+POWERS&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwiX8qeiuczzAhXEGTQIHcQyCjwQ6AF6BAgIEAI#v=onepage&q=EXECUTIVE ORDERS AND PROCLAMATIONS%3A A STUDY OF A USE OF PRESIDENTIAL POWERS&f=false

And just to fan the flames, let me suggest:

"Executive Orders, the Very Definition of Tyranny, and the Congressional Solution, the Separation of Powers Restoration Act," by Leanna M. Anderson, Hastings Constitutional Law Quarterly,  Vol. 29 (2002), No. 3, p. 589.

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1733&context=hastings_constitutional_law_quaterly

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I will do my job as directed because that is what I signed up to do. 

Lest we forget, these 'contract' things we blithely bandy about on a daily basis represent the lives and livelihoods of thousands and thousands of people, and we have a positive duty to demonstrate good faith and fair dealing accordingly (How many WifCon threads have discussed that subject BTW?).  Being a good CO is not all about peeling apart the vagaries of the Limitations on Subcontracting clause. 

Must be Friday because I'm feeling philosophical.

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38 minutes ago, REA'n Maker said:

Must be Friday because I'm feeling philosophical.

Well, you're not being very philosophical. A philosophical person asks questions and proposes and debates answers. You're just grousing, which is okay, if you do it philosophically.

"By the dog, Gorgias, there will be a great deal of discussion before we get at the truth of all this." Socrates in Gorgias by Plato, Jowett, trans.

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4 minutes ago, here_2_help said:

Prediction: The vaccination requirements will be enforced through the action of private attorneys general, acting through the False Claims Act.

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment?

Maybe so. But that will be years from now, don't you think?

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1 minute ago, Vern Edwards said:

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment?

Maybe so. But that will be years from now, don't you think?

I made a prediction without a date, which (as you know) is the best kind of prediction.

To your point, I agree that the legal settlements will start occurring years from now. I believe the suits (filed under seal, I expect) will come sooner, perhaps in 2023 or even as early as 2022. It only takes one impliedly false certification to give rise to an action (at least, that's what I've been told).

FYI, the legal webinar I attended yesterday asserted that the Vaccination Mandate clause would likely be found to be material under the Escobar implied false certification test.

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Here are some important questions related to this topic that no one in my office can answer.  I figured I should poll the Forum before I make a hasty mistake.

  1. Does anyone know if/when GSA plans to update all of the MAS terms and conditions to insert the clause from the CAAC's Deviation memo into them? Contracts Online Home (gsa.gov)
  2. If GSA inserts the clause, would an Agency's:
    • Order issued through a BPA awarded previously under the MAS (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision? 
    • Order issued directly against the MAS previously (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision?
  3. If GSA does not insert the clause, does the Agency's BPA previously awarded under the MAS need to insert the clause before the Order can insert the clause?

Please advise on basic contracting principles, oh trusty Wifcon.  I will keep any and all references to case law so I don't have to ask again.  Today I am just in a time crunch and I have no quick recall on these subjects.

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1.  I don't know.

2.a.  That will depend on the language GSA uses in the parent schedule contract.

2.b.  Only if there will be a future need to extend the order, exercise an option, or so forth.

3.  I think the clause can be bilaterally added to a specific order without prior inclusion in the parent schedule contract.

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Quote

The overarching message coming out of these calls [with government agencies] is that the administration is willing to take the risk of companies losing some employees. They believe from their data that there will be 'noise up front and compliance in the back' as this directive is implemented (they continue to use the United Airlines case as an example of that where there are around 300 holdouts out of 67K employees). Also, their stated goal is the maximum number of Americans vaccinated, so they have given guidance to departments and agencies to broadly interpret and apply the mandate. Because we know your workforce is your most valuable asset and one that is not easily replaced, [unnamed industry association] does not agree unnecessarily losing employees is an acceptable risk to our companies.

Regarding that, [unnamed industry association] has received feedback from membership that the EO is being implemented unevenly across the Department of Defense (DoD) and that uncertainty remains regarding how much information/documentation companies will have to provide in their attestations that their covered workforce is vaccinated, criteria for exceptions (both religious and medical), what is meant by 'products' based contracts and what that means to flow-down, and what, if any, indemnification will the government provide.

In a recent call with DoD, [unnamed industry association] was informed that facility access guidance (and by extension, attestation requirements via the DD Form 3150) will likely be released today. Additionally, further DoD-wide guidance from the Office of the Deputy Secretary of Defense will be issued within the next week, and that the department is working as expeditiously as possible on implementing an FAR rule. All these are efforts to close the gaps in guidance and to standardize how contracts will be modified and enforced.

Quoted from email received today (10/15/2021)

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I want to discuss the phrase employees who work “in connection with a covered contract” to define covered contractor employees. If we ignore the issue of employee proximity for now and just focus on the reach of this phrase, can anyone help me understand which contractor employees stay outside of its scope?

I know this phrase has been used in other EOs (minimum wage, paid sick leave) so I took a look at DOL guidance:  

Quote

For purposes of the Executive Order, the Department views a worker performing “on” a covered contract as any worker who directly performs the specific services called for by the contract’s terms. The Department regards a worker performing “in connection with” a covered contract as any worker who performs work activities that although are not the specific services called for by the contract’s terms, are necessary to the performance of those specific services.

See: Executive Order 13658 Frequently Asked Questions (FAQs) | U.S. Department of Labor (dol.gov) Questions 16 & 17.

GSA suggests

Quote

Think anyone in an overhead pool

https://www.gsa.gov/cdnstatic/COVID EO Protocols Industry Meeting Final_0.pdf

Can anyone explain how they interpret this? I read this to suggest that G&A wouldn't be covered. But the Safer Workforce Taskforce specifically calls out the basic back office functions as covered:

Quote

 

Q: What constitutes work performed “in connection with” a covered contract?

A: Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.

 

https://www.saferfederalworkforce.gov/faq/contractors/

There must be a limit, right? Let's say there is a company with branch offices with employees that work directly on the contract (e.g., laborers, local mangers, office staff creating invoices, etc.) and there is an HQ building in another state that houses company HR, legal, accounting, executive leadership. Could the company keep the HQ staff out of the definition of "covered contractor employees"? What qualifies as "duties necessary" under the contract? What facts matter? What do we need to consider? (Please ignore proximity and risk of covered employees visiting the HQ). 

Thanks for any insight. 

 

 

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Nena,

This thread is about the EO on COVID vaccinations, but you are relying on text regarding the EO on minimum wage.  I recommend not conflating these matters.  I am not at all certain that the definition of "covered contractor" or "covered contractor employee" in one matter is the same as in the other matter.  I think a contractor should comply with each EO separately (or rather, the contract clauses implementing each EO separately) according to the text of each instead of assuming a common application for both.

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@ji20874 I appreciate your point that even though the EO's may share the same language we should not assume the phrase means the same thing. Fair enough.

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract? 

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9 hours ago, Vern Edwards said:

I think here_2_help's quote is part of a message from Arnold Punaro, Chairman of the Board of the National Defense Industrial Association (NDIA).

I think you may be right, but I didn't want to attribute it, as I wasn't sure how widely it was distributed.

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8 hours ago, NenaLenz said:

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract?

1.  Don't read the EO.  Forget it.  Instead, read the contract clause that will be inserted into your contract.

2.  You will have to assert that the persons at the HQ office are not "covered contractor employees" and that the HQ office is not a "covered contractor workplace," using the definitions of these terms as found in the guidance.  This will be based on your particular facts.  You must appreciate, or course, that the goal of this effort is to cover as many people as possible, and you might not be able to reach your desired end.  Q8 and Q9 in the FAQs will be of interest to you.

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13 hours ago, ji20874 said:

1.  Don't read the EO.  Forget it.  Instead, read the contract clause that will be inserted into your contract.

2.  You will have to assert that the persons at the HQ office are not "covered contractor employees" and that the HQ office is not a "covered contractor workplace," using the definitions of these terms as found in the guidance.  This will be based on your particular facts.  You must appreciate, or course, that the goal of this effort is to cover as many people as possible, and you might not be able to reach your desired end.  Q8 and Q9 in the FAQs will be of interest to you.

@ji20874I don't agree that we should not read, and should forget, the EO. It's the ultimate source document. The clause says it is implementing the EO, and the task force guidance refers to it. A court or board of contract appeals would almost certainly read the EO when trying to interpret the intent of the clause and the task force guidance.

16 hours ago, NenaLenz said:

Is there any way to read the COVID vaccination EO to not reach any employees at the HQ office just because a small district office (one office out of dozens of offices around the country) is working on a covered contract? 

@NenaLenzMy answer is no.

The stated goal of the EO is to safeguard contractors' workers, i.e., individual persons. The contract clause requires compliance with task force guidance in order to achieve that end. The task force guidance requires three things:

  1. Quote

     

    1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
    2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
    3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

     

The first requirement is what worries everyone.

The task force guidance defines 10 terms on pages 3 and 4:

  1. community transmission
  2. contract and contract-like instrument
  3. contractor or subcontractor workplace location
  4. covered contract
  5. covered contractor
  6. covered contractor employee
  7. covered contractor workplace
  8. federal workplace
  9. fully vaccinated
  10. mask

I think the guidance definitions that are key to its interpretation and application are probably covered contractor employee and covered contractor workplace:

Quote

Covered contractor employee – means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

Covered contractor workplace – means a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract. A covered contractor workplace does not include a covered contractor employee’s residence.

I think you have to start with covered contractor employee.

I think a contractor employee who does anything that might affect covered contract performance, including work such as granting or approving settlements or waivers, cost accounting, approving or controlling contract-related policies or procedures, hiring or approving hires, providing information required for performance or reporting, etc., would be working "in connection with a covered contract." If that employee is working at the covered contractor's HQ, then that would make the HQ a covered contractor workplace and the employee a covered contractor employee. But I think that such an employee working exclusively from home probably would not be a covered contractor employee.

According to the guidance:

Quote

Covered contractors are responsible for ensuring that covered contractor employees comply with the workplace safety protocols detailed below. Covered contractor employees must also comply with agency COVID-19 workplace safety requirements while in Federal workplaces.

The very first safety protocol is as follows:

Quote

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation

Italics in the original.

Thee guidance requires compliance by "individuals". Not everyone working at a covered contractor workplace is required to get  vaccinated, only covered contractor employees. Remember, the EO is seeking to achieve its ultimate goal through government contracts. Contracts are the policy vehicle. I don't think a president can order covered contractors to require employees to get vaccinated if they are not working on or in connection with a covered contract.

Ultimately, boards and courts will have to interpret the guidance. Some might interpret it broadly, others narrowly, and some might refer to the EO when deciding which way to go. 

Bottom line: I do not think you can hold an employee at an HQ to be out of reach of the clause just because they work at the HQ and not at the office that is working under the statement of work. But my opinion is based on nothing more than two or three reads of the guidance. I am open to others' interpretations.

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On 10/17/2021 at 5:38 AM, Vern Edwards said:

I am open to others' interpretations.

The interpretations are sound.  The reach of the EO is very long and connected but not on the topic of acquisition/contracting is its application to contract-like instruments.   

Cooperative agreements are thrown into the mix by my read of the definition that applies per the EO which is -

"The Department proposes to define contract and contract-like instrument collectively for purposes of the Executive order as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The proposed definition of the term contract broadly includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing." 

Reference per the EO is  - https://www.federalregister.gov/documents/2021/07/22/2021-15348/increasing-the-minimum-wage-for-federal-contractors

Wondering by example - A State agency has a wildlife area for the management of big game.  A national non-profit big game organization assists annually in fence manipulation for the wildlife area.  If the State gets Federal money for the project via cooperative agreement should the State now require volunteers for big game organization to show proof of vaccination?  

In following the mandate trail which the EO essentially is, there are those that will most likely not comply.  Again by example - State departments of education get Federal money by cooperative agreement.  Money is passed down to individual schools.   There is also a state mandate for vaccinations.  Yet there is school(s) that is an outrider that refuses to follow the mandate, state wise.   What happens to this school with regard to the fact that the EO now exists?

All rhetorical questions related to scenarios that in part are based in fact.  All offered as examples that relate to the quote found in the post by here-2-help - "...the EO is being implemented unevenly across the Department of Defense..." - where I wonder about the consistency that will occur when all of these folks finally settle on implementation and administration (number unknown but probably surpasses 400) https://www.usa.gov/federal-agencies .   The reach beyond the contract, as demonstrated by the reach that could occur for a cooperative agreement, is long and complicated suggesting endless hours of administrative effort.

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48 minutes ago, ji20874 said:

Carl,

I have to caution for extraordinary care here -- you linked to the EO for minimum wage for federal contractors, but the topic in this thread is vaccines for federal contractors.

Section 2 of the EO for COVID and I quote -   "(e)  For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021).  If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule."

@ji20874 I express the same caution!

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23 hours ago, C Culham said:

Cooperative agreements are thrown into the mix by my read of the definition that applies per the EO which is -

"The Department proposes to define contract and contract-like instrument collectively for purposes of the Executive order as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The proposed definition of the term contract broadly includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing." 

Reference per the EO is  - https://www.federalregister.gov/documents/2021/07/22/2021-15348/increasing-the-minimum-wage-for-federal-contractors

In addition, the Safer Federal Workforce Task Force guidance specifically calls out Cooperative Agreements as being included.  It defines contract and contract-like instruments to include (among other instruments):

Quote

all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.

https://www.saferfederalworkforce.gov/downloads/Draft contractor guidance doc_20210922.pdf

 

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