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29 minutes ago, ji20874 said:

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. 

That's disingenuous.  Even the largest employers will only carry a client-facing employee for at most 60 days without a billable objective.   If you're a small business employee, no contract no paycheck. Immediately.

As I said in my original post, contracts are not an abstraction.  They represent real people with real lives.  What you choose to believe to make yourself feel better about jeopardizing the paycheck of a law abiding citizen is up to you.

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52 minutes ago, REA'n Maker said:

That's disingenuous.

No, that's truth.

It's not a matter of feeling good, and it's not matter of a contracting officer jeopardizing the paycheck of a law-abiding citizen; rather, it's a matter of a contractor employee jeopardizing his or her own paycheck for non-compliance with his or her own company's policies.  Sure, the company policy might be affected by the EO, especially if the contractor depends on federal contracts for its business.  But neither the EO, the clause, or the guidance requires any contractor to terminate any employee.

The company has choices -- the contractor employee has choices -- only the contracting officer has no choice in this matter, as he or she must include the clause in contracts in accordance with agency instructions.

The modifications to add the clause to existing contracts are bilateral, right?  That means the contractor can try to negotiate for whatever price or other contract adjustments it needs to deal with any added costs or other impacts of maintaining a vaccinated workforce.  I wonder if any contractors are seeking adjustments, or if they are all perfunctorily signing the bilateral modifications?

Anyway, I think this thread's purpose is to talk about faithfully implementing the EO.  That's what I'm trying to do.

 

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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.

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On 9/30/2021 at 3:38 PM, styrene said:

Question:  Is anyone hearing that their agency wants to incorporate the clause into actions valued at less than the SAT or in actions that are not included as part of the EO?  If so, what are your opinions on this idea?  

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.   They also appear to want to have it flowed on all "subcontracts" in excess of MPT (presumably including those for 'products'), but this conflicts with FAQ #13 provided by the Smarter  Safer Federal Workforce Task Force.  

(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, performed in whole or in part within the United States or its outlying areas.

NOTE: "and are for services, including construction" is not included in their paragraph (d).

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14 hours ago, Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT. 

I found this matrix interesting from the viewpoint that at this point only 6 executive agencies are shown.  I can imagine what it might look like when all are shown side by side.

https://www.crowell.com/files/Executive-Order-14042-Agency-Class-Deviation-Guidance-A-Side-by-Side-Comparison.pdf

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16 hours ago, Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT.   They also appear to want to have it flowed on all "subcontracts" in excess of MPT (presumably including those for 'products'), but this conflicts with FAQ #13 provided by the Smarter  Safer Federal Workforce Task Force.  

(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, performed in whole or in part within the United States or its outlying areas.

NOTE: "and are for services, including construction" is not included in their paragraph (d).

It is ridiculous to include producers and material suppliers in this mandate, if it exceeds the scope of the Executive Order. So will they require producers and suppliers to certify to the prime and/or its subs that they are in compliance? Actually that might be easy if they are in compliance with the scope of the executive order, if it excludes such firms.

NASA may be concerned with the purity of products that might directly or indirectly expose its employees and space travelers. I’m guessing that there are already protocols for sanitizing anything that space travelers (formerly known as “astronauts” 🤪) might be exposed to. 

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From today's Washington Post:

Quote

The White House coronavirus response coordinator, Jeff Zients, indicated that the Biden administration could be flexible as it enforces the president’s executive order requiring federal workers and government contractors to vaccinate their workers...

Federal agencies and contractors are expected to educate, counsel and accommodate their unvaccinated workers even after the deadline to persuade them to receive vaccine doses before terminating them, he added. Federal employees face a vaccination deadline of Nov. 22; contractors have a Dec. 8 deadline.

https://www.washingtonpost.com/nation/2021/10/28/covid-delta-variant-live-updates/

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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.

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The State of Florida has sued the Biden Administration over the vaccine mandate.

Quote

1. Relying on a statute authorizing the President to “prescribe policies and directives that the President considers necessary to carry out” the Federal Property and Administrative Services Act of 1949 (FPASA), 40 U.S.C. § 121(a), the Biden Administration seeks to compel millions of Americans who work for government contractors to receive a COVID-19 vaccine.

2. Nothing in that statute authorizes such a radical intrusion on the personal autonomy of American workers—especially, as is the case here, when many of those workers are officials of a sovereign state.

3. But even if FPASA did authorize such a mandate, the Biden Administration’s vaccine requirements would still be unlawful because the manner in which they were enacted violates fundamental principles of administrative and procurement law.

The link below will take you to the full complaint filed in a U.S. District Court.

http://myfloridalegal.com/webfiles.nsf/WF/GPEY-C88HXK/$file/complaint.pdf

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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.

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On 10/26/2021 at 4:29 PM, Z-Mil said:

NASA (PCD 21-03) is requiring Contractors and Subcontractors to flow the clause at MPT. 

HUD is requiring the clause to be included in all contracts exceeding the SAT.  How it is to be applied at the is to be applied at the contractor level is not clear and confusing.

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23 hours ago, Contracting Universe said:

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.

 

22 hours ago, Vern Edwards said:

I would refuse to sign a release. 

I agree. Tell them you won’t sign the release due to unknown cost and schedule impact possibilities due to fluctuating requirements, as you stated. 

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On 10/29/2021 at 10:04 PM, joel hoffman said:

 

I agree. Tell them you won’t sign the release due to unknown cost and schedule impact possibilities due to fluctuating requirements, as you stated. 

I concur as well.

I don't know why anyone would sign a release considering the clause used provides a link to a website and FAQ page that is changing constantly. If the "sigma alpha mu variant" shows up this winter, they may update it to say all contractors must wear hazmat suits while in conference calls and using the restroom. Am I being a bit ridiculous? Perhaps, but nothing surprises me of late. 

FAR 52.223-99(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 workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

🤨

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This just in:

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The following is sent on behalf of Lesley A. Field, Acting Administrator for Federal Procurement Policy

/////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////

Colleagues,

The Safer Federal Workforce Task Force (Task Force) has released new FAQs for Federal contractors, pursuant to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The new FAQs for Federal contractors cover accommodations, enforcement, compliance, affiliates, and vaccination documentation.

All Task Force guidance for Federal contractors can be found here: https://www.saferfederalworkforce.gov/contractors/

As a reminder, we look forward to discussing these and related issues further at our upcoming office hours on Friday, November 5. Thank you for your continued attention to this critical ongoing work to support the health and safety of the Federal workforce, including Federal contractor employees.

 

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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.

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On 11/2/2021 at 12:13 PM, WifWaf said:

This just in:  "The following is sent on behalf of Lesley A. Field, Acting Administrator for Federal Procurement Policy..."

 

I have to ask, "So what?"

The EO permits the Safer Federal Workforce Task Force (SFWTF) to issue definitions and protocols, subject to approval (via a specific determination) by OMB. 

https://www.federalregister.gov/documents/2021/09/28/2021-21184/determination-of-the-promotion-of-economy-and-efficiency-in-federal-contracting-pursuant-to

On Sep 28, OMB gave its determination approving what the SFWTF published on its website on Sep 24.  In that guidance, the SFWTF posted numbered FAQs.  Among those is what appears to be their approved guidance that any of their new guidance is subject to OMB approval:

Q16: If the Safer Federal Workforce Task Force updates this Guidance to add new requirements, do those requirements apply to existing contracts?

A: Yes. Covered contractors are required to, for the duration of the contract, comply with all Task Force Guidance for contractor or subcontractor workplace locations, including any new Guidance where the OMB Director approves the Guidance and determines that adherence to the Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB plan to ensure any workplace safety protocols reflect what is necessary to decrease the spread of COVID-19.\

To the best of my knowledge OMB hasn't published anything in the Federal Register since Sep 28.

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5 hours ago, MBrown said:

So what?

You're keeping them honest. I agree with your assessment of my provided FAQ update from OFPP. In reviewing Executive Order 14042, I find that both:

  1. The guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force, i.e., the "Task Force Guidance" or "Guidance" as defined and required in the EO at Section 2 Subsection (a), and,
  2. "The definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply" as required in the EO at Section 2 Subsection (b),

are limited by the EO where it requires, at Section 2(c): "Prior to the Task Force publishing new Guidance related to COVID-19 for contractor or subcontractor workplace locations, including the Guidance developed pursuant to subsection (b) of this section, the Director shall, as an exercise of the delegation of my authority under the Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors...The Director shall publish such determination in the Federal Register."  Even if this responsibility was somehow delegated to OFPP, the email contents that I quoted (in full) were not in the Federal Register, and were silent on economy and efficiency anyway.

Federal Register :: Agencies - Management and Budget Office - last recently published notice was on 10/12/2021

Federal Register :: Agencies - Federal Procurement Policy Office - last recently published notice was on 9/18/2020

In my review of EO 14042 I found no other responsibilities that Lesley A. Field, Acting Administrator of OFPP could have been implementing in updating the Frequently Asked Questions.  Could you?  I was already questioning how we got here with this FAQ in our clauses, but now I really doubt whether the 1 Nov, 21 Oct, and 30 Sep 2021 FAQ updates are valid.

What's New? | Safer Federal Workforce

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Published today in Bloomberg Government"

Quote

Contractors Granted Extra Four Weeks to Meet Vaccine Mandate

By Amanda H. Allen / November 4, 2021 08:48AM ET / Bloomberg Government

Federal contractors have until Jan. 4 to ensure compliance by all employees covered by the White House Safer Federal Workforce Task Force requirement to be fully vaccinated against Covid-19. The new effective date is four weeks later than the original Dec. 8 deadline.

 

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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.

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  • 2 weeks later...

OMB published a determiantion in the Federal Register this morning, Looks like it addresses the application of the EO to commercial contracts.

Section 2 of Executive Order 14042 (“Executive Order 14042” or the “order”) requires that, before Federal contractors and subcontractors must adhere to any guidance from the Task Force, the Director of OMB must approve such guidance and determine that such guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors. The actions directed by the order will ensure that parties who contract with the Federal Government provide COVID-19 safeguards in workplaces with individuals working on or in connection with a Federal Government contract or contract-like instrument.

 Contract and contract-like instrument —has the meaning set forth in the Department of Labor's proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 FR 38816, 38887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, this term shall have the meaning set forth in that final rule.

That proposed rule defines a contract or contract-like instrument 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 term contract 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. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public

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10 minutes ago, uva383 said:

Section 2 of Executive Order 14042 (“Executive Order 14042” or the “order”) requires that, before Federal contractors and subcontractors must adhere to any guidance from the Task Force, the Director of OMB must approve such guidance and determine that such guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors.

Of course, that is a joke here. Although not directly applicable here recent appeals court rulings on the order(s) that apply to private employers appear to disagree with the President that those mandates will promote economy and efficiency…

There may well be massive disruptions and impacts upon contracting companies and contracts, if employees refuse to “cooperate”. 

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