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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

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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.

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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.

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3 hours ago, RF-SA said:

As the contractor, when I receive a contract that has FAR flow-downs included, can those be redlined/asked to be removed?

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?

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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! 

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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!! 

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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!!

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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.

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On 9/30/2021 at 7:01 PM, RF-SA said:



"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!!

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...

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On 9/30/2021 at 5:02 PM, RF-SA said:

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? 

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?

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14 hours ago, Mike Twardoski said:

...requiring all covered contractor personnel to be vaccinated within 2 months...

Well, really, contractor personnel (and all citizens of our great republic) have already had six or more months to be vaccinated, so it is only a residual few that we're talking about.  

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17 hours ago, Mike Twardoski said:

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

I'm not sure there will be a lot of pushback.

It's likely that government contractors will lose employees over this mandate. How many? Probably not a lot; but some. I expect manufacturers to be the hardest hit; but the E.O. doesn't seem to be pointed at them, so we'll have to see.

A colleague and I were discussing this issue yesterday and we wondered where those people who choose to depart, rather than get vaccinated, will go? Certainly not to another government contractor that will be subject to the same mandate. Thus, it seemed to us that the people who choose to depart a contractor essentially will have made the decision to depart the industry altogether, and will end up somewhere in the commercial sector.

To my way of thinking, the E.O. vaccination mandate is not too different from the Drug-Free Workplace Act, in that you agree to more stringent rules/restrictions on your personal conduct as an employment requirement with a government contractor. Doesn't matter what State law permits; you're subject to Federal law by virtue of your employment with a contractor that has accepted the contract clause.

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I wonder what kind of "monitoring" and verification the president will expect from COs.

I can see the GAO reports now:

"Most CO's Not Monitoring/Verifying Contractor Compliance With Vaccination Mandate."

"Many Contractor Employees Using Fake Vaccination Cards."

https://pix11.com/news/coronavirus/ny-man-arrested-after-using-fake-covid-vaccine-card-at-work-officials/

https://www.washingtonpost.com/nation/2021/10/04/va-hospital-nurse-sold-covid-vaccine-cards/

https://abcnews.go.com/Health/michigan-men-charged-separate-vaccination-card-schemes/story?id=80309267

Par for the course in the utopia of rules.

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3 hours ago, ji20874 said:

Well, really, contractor personnel (and all citizens of our great republic) have already had six or more months to be vaccinated, so it is only a residual few that we're talking about.  

True, but when >40% of the country as a whole isn't fully vaccinated, requiring industry to be 100% within 2 months seems unreasonable to me. Mind you, I have no beef with the spirit of the EO. I'm not a part of that >40% of the population, so it doesn't impact me on a personal level. I just think there's going to be some fierce pushback based upon my own observations. 

13 minutes ago, Vern Edwards said:

I wonder what kind of "monitoring" and verification the president will expect from COs.

I can see the GAO reports now:

"Most CO's Not Monitoring/Verifying Contractor Compliance With Vaccination Mandate."

"Many Contractor Employees Using Fake Vaccination Cards."

https://pix11.com/news/coronavirus/ny-man-arrested-after-using-fake-covid-vaccine-card-at-work-officials/

Agreed! How are PCOs going to enforce this? 

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3 hours ago, Mike Twardoski said:

How are PCOs going to enforce this?

The CAAC's proposed contract clause (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) does not impose a self-reporting obligation on the contractor and does not impose an investigative/enforcement obligation on the contracting officer.  But Vern is right -- some will insist that contracting officers zealously investigate and enforce the clause, while the guidelines put responsibility for compliance squarely (and solely) on contractors.

I don't think this will be a big deal.  I think the mandate will persuade on-the-fence federal contractor employees to get vaccinated, and that is good (indeed, isn't that the entire purpose?).  I think the number of persons who will dare their employers to fire them will be small.

BTW, the guidelines do allow contractors to "provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance."

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1 hour ago, ji20874 said:

The CAAC's proposed contract clause (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) does not impose a self-reporting obligation on the contractor and does not impose an investigative/enforcement obligation on the contracting officer...

I don't think this will be a big deal.

From the clause, paragraph (c):

Quote

(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 or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

Why don't we just wait here for a little while... see what happens?

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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! 

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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. 

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On 10/5/2021 at 5:12 AM, ji20874 said:

and all citizens

 

23 hours ago, Vern Edwards said:

But I'm sure that there are persons who will have some strong feelings and ideas about monitoring and enforcement.

 

On 10/5/2021 at 8:10 AM, here_2_help said:

we wondered where those people who choose to depart, rather than get vaccinated, will go

Collective referenced thoughts in no particular order that raise these thoughts from me.

Monitoring and enforcement will be just like the myriad of socio-economic requirements now saddled on Federal contracts.   CO's will pick and choose and argue why this or that prevents them from doing so.    The "par" comment by Vern Edwards rings loud and clear.

What about commercial items?  Is it a clause that can be tailored out of a commercial item contract if the industry for the the particular need is not an "industry practice"?  After all only "statutory requirements" are required in a commercial item procurement (Ref. FAR 12.302(b)).

Consider  industries such as, construction, janitorial, reforestation and more, all covered by the EO where workers are H2B.   https://www.dol.gov/agencies/whd/data/charts/industries-h2b-workers

It makes one wonder what will happen with regard to  where the workers will go and more importantly the ability of contractors to find the workforce to replace them?

One more tangled confliction of created by the bureaucracy for Federal contracting!

 

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