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17 minutes ago, Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

I find no language in the reference provided below that speaks to commercial item acquisition, either way.  There is a reference on where to pose a question such as yours.  I suspect a commercial item contract is a covered contract, noting any exception with regard to SAT threshold.

https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf

A follow-on question to the memorandum contact might be if it does apply  can it be tailored in or out based on market research of a particular commercial industry?

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@C Culham

41 USC 1906 and 1907 limit what new laws (Executive Orders are not law, but have the force and effect of law).

A provision of law described in subsection (d) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law required by paragraph (1) unless theCouncil makes a written determination that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial products or commercial services from the applicability of the provision.” (41 USC 1906)

Also, DFARS 212.301 and the DFARS convention govern what clauses are applicable to commercial item acquisitions. For example, DFARS prescriptions usually say something like “Use the clause at 252.XXX-XXXX, Title, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items…”.

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9 hours ago, Jamaal Valentine said:

(Executive Orders are not law, but have the force and effect of law).

Not necessarily.

Generally, see Congressional Research Service, Executive Orders: An Introduction, March 29, 2021.

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

See also Manheim and Watts, "Reviewing Presidential Orders," University of Chicago Law Review (Nov. 2019), 86 U. Chi. L. Rev. 1743:

Quote

As a historical matter, presidents--seizing on their constitutional and statutory powers--have issued many different kinds of presidential orders to try to achieve many different aims. Some of these orders have been labeled as memoranda, others as proclamations, and still others as executive orders. Indeed, precisely because presidential orders can take so many different forms, it can be difficult to describe them in a general manner. At the risk of oversimplification, however, we believe that the discrete instructions contained within presidential orders can be grouped loosely into two largely distinct (though at times overlapping) categories.

The first category involves specific instructions found in presidential orders that carry the force and effect of law--much like how legislative rules issued by agencies carry the force and effect of law. We refer to these throughout this Article as “legally binding orders.” Often these sorts of orders directly regulate private actors outside of the executive branch and alter legal rights or obligations. As an example, in 1934, President Franklin D. Roosevelt issued a proclamation that made it unlawful for private actors in the United States to sell arms to Bolivia or Paraguay. The federal government later criminally indicted a company for violating this presidentially imposed prohibition. Another example can be found in President Richard Nixon's 1971 order attempting to stabilize the economy by, among other things, freezing prices and wages, including those of private businesses, across the country. This order made its legal effects clear, announcing that certain violations of the order could result in fines of up to $5,000 per violation. Presidents have issued these sorts of legally binding orders throughout the nation's history, generally by relying on some combination of their constitutional and statutory powers.117

The second category involves instructions embedded within orders that do not themselves alter legal rights or obligations, even though they may well prompt subsequent executive branch action that does have legal effect. We refer to these throughout this Article as “nonlegally binding orders.” Orders that fall into this second category often operate as a presidential communication tool, enabling the chief executive to tell executive-branch officers what to do, or not to do, as they carry out their duties and administer the nation's laws. For example, if a president wishes to raise the wages of low-paid workers, he lacks the power simply to increase the nation's statutorily set minimum wage. But he might seize on powers already granted to him by Congress and the Constitution to issue an order seeking to achieve a similar, albeit more limited end. For example, he might issue a written order, directed at federal agencies entering into new government contracts, that requires each such contract to include provisions ensuring contractors will pay their workers an increased minimum wage.

https://chicagounbound.uchicago.edu/uclrev/vol86/iss7/5/

For an in-depth discussion of executive orders and the force and effect of law, see Raven-Hansen, "Making Agencies Follow Orders: Judicial Review of Agency Violations of Executive Order 12,291," Duke Law Journal (April 1983), 1983 Duke L.J. 285. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2836&context=dlj

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12 hours ago, Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

I would say no, because the underlying policy was not published for comment in accordance with 41 U.S.C. 1707.

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With respect to The original question, it applies to solicitations and contracts for services .  I didn’t see any distinction between commercial and non-commercial contracts for services in the prescribing documents or in the clause itself.

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7 hours ago, Jamaal Valentine said:

Is that the Administrative Procedure Act?

No. The Administrative Procedure Act (APA) is at 5 U.S.C. 551 et seq.

41 USC 1707, "Publication of proposed regulations," provides in part as follows:

Quote

(a) Covered Policies, Regulations, Procedures, and Forms.—

(1) Required comment period.—Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it—

(A) relates to the expenditure of appropriated funds; and

(B)

(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

The rule-making provisions of the APA do not apply to matters pertaining to contracts. See 5 USC 553(a)(2). However, 41 USC 1707 requires that agencies follow the public notice and comment requirements of those procedures under certain circumstances.

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22 hours ago, Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

According to an unofficial communication from DOD: "[T]here is no exclusion for commercial services."

NASA has expressly applied the E.O. to commercial services. See Procurement Class Deviation 21-03A, Oct. 1, 2021, Updated Nov. 8, 2021, CLASS DEVIATION FROM THE FEDERAL ACQUISITION REGULATION (FAR) FOR EXECUTIVE ORDER 14042, ENSURING ADEQUATE COVID SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS:

Quote

ACTION REQUIRED BY CONTRACTING OFFICERS: Effective immediately and no later than October 15, 2021, for commercial and non-commercial acquisitions that include requirements for services, supplies, research and development, construction, and end-items, insert the attached clause in the following:

• All new solicitations and resulting contracts, orders, and blanket purchase agreements (BPAs), and cooperative agreement notices and resulting cooperative agreements above the micro-purchase threshold (MPT) issued on or after the effective date of this PCD;

• All existing contracts, orders, and BPAs, and cooperative agreements, above the simplified acquisition threshold (SAT) via a bilateral modification; and

• All solicitations above the MPT issued prior to the effective date of the PCD.

Emphasis added.

The attached clause reads as follows:

Quote

[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors. ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (DEVIATION 21-03)

(a) Definition. As used in this clause - United States or its outlying areas means— (1) The fifty States; (2) The District of Columbia; (3) The commonwealths of Puerto Rico and the Northern Mariana Islands; (4) The territories of American Samoa, Guam, and the United States Virgin Islands; and (5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).

(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/.

(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.

(End of clause)]

You can find the entire text of the class deviation at https://www.hq.nasa.gov/office/procurement/regs/pcd/pcd21-03A.pdf.

I do not know what other agencies are doing.

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2 hours ago, Vern Edwards said:

According to an unofficial communication from DOD: "[T]here is no exclusion for commercial services."

We have a new FAC forthcoming in 48 CFR and it will result in a specific definition for "commercial services".  The definition includes:

Quote

(2) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. 

Emphasis added.  I want to know if the statutory construction here interferes with any forthcoming Proposed Rule the regulatory councils plan to put in the Federal Register adding the Executive Order's resulting clauses to the FAR/DFARS and applying its prescription to "commercial services".  Because FAR 52.223-99 / DFARS 252.223-7999 is not a standard term and condition.

Lets assume the currently Interim Final Rule by OSHA stands, requiring vaccines if an employer has greater than 100 employees.  That makes it a standard commercial T&C, right?  Not for truckers.  Not for commercial firms with less than 100 employees.  There are 4000+ comments submitted to the Interim Rule already on day 5 of its publishing - we can assume the list of excepted firms will only grow with time.  How will the Contracting Officer know not to insert FAR 52.223-99 / DFARS 252.223-7999 in the commercial contracts awarded to these OSHA-excepted firms?

I worry this will become a nanny state scenario for COs.  And I am no Mrs. Doubtfire.

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@Don MansfieldLet's define "standard commercial term and condition".  In this case the Occupational Safety and Health Act of 1970 placed the responsibility for protection of virtually all private sector employees on the Department of Labor, through DOL's creation and enforcement of standards of safety and health in the workplace.  The DOL and other agencies had previously only used the Public Contracts Act of 1935 to enforce uranium mining health and safety standards, because that type of work was done entirely by government contract.  Now that OSHA was stood up, the Agency's standards had to be met by all employers or else its enforcement would cost business dearly.  Source: https://www.dol.gov/general/aboutdol/history/lbjsym98

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce.  Is that your understanding?  OSHA allow companies to search their standards here: www.osha.gov/laws-regs

I am interested in this but am not educated in this.

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1 hour ago, WifWaf said:

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce. 

I don't understand that sentence, especially the part that begins "to ensure the consideration due from the buyer..." What do you mean by "the consideration due from the buyer"? Do you mean the price?

Are you saying there are commercial contracts that include standard clauses that refer to OSHA requirements and that apply to the seller's operations? For instance, are you saying that there are commercial contracts that include clauses that incorporate OSHA Standard 1910, Subpart D, Walking-Working Surfaces?

Why would a commercial buyer care about that?

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Every requirement on a business has its own potential risk increase.  Risk is reflected in price.  In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract.  The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless.  They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

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35 minutes ago, WifWaf said:

Every requirement on a business has its own potential risk increase.  Risk is reflected in price.  In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract.  The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless.  They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

@WifWafThat mishmash of sentences amounts to utter nonsense.

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5 hours ago, WifWaf said:

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce.  Is that your understanding?

No, it's not. I can't really tell what you're talking about.

If you don't understand something, you should ask questions. You shouldn't try to explain it like you understand, then ask if you're right.

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On 11/10/2021 at 3:17 PM, Don Mansfield said:

No, it's a regulation that applies to the public--not by operation of a contract, correct?

I think we can safely say that is correct - I was out on a limb.

Is the statutory construction of the definition of “commercial service”, in any other way, a legal basis for a commercial service contract not to include DFARS 252.223-7999?

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In my view, this thread of posts does not belong under the Forum topic "Polls." I believe it is more properly related to the COVID topic, and should me moved there. I'm going to request that Bob move it.

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2 hours ago, here_2_help said:

In my view, this thread of posts does not belong under the Forum topic "Polls." I believe it is more properly related to the COVID topic, and should me moved there. I'm going to request that Bob move it.

I’m not against relocating it…especially, since I didn’t get the ‘yes’/‘no’ voting button options that I wanted. (I originally wanted a quick and easy view of how many votes for ‘yes’ and how many for ‘no’.)

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Does a contractor's voluntary bilateral acceptance of the new clause in its contract overcome or obviate the question of the E.O.'s legality?

The E.O. is instruction from the President to federal agencies.  If a contracting officer refuses to include the clause in a contract, and faces discipline because of his or her refusal to follow instructions, he or she might claim the E.O. is illegal in defense to the disciplinary action.  Or if a contracting officer unilaterally adds the clause to an existing contract without allowing for any consideration or impact, the contractor might object to the contracting officer's unilateral modification in a Disputes matter without challenging the legality of the E.O.  

I guess I am wondering how the legality of the E.O. makes a difference.  If a contractor thinks it is illegal, it should not agree to the bilateral modification to include the clause in its contract.  But once it has accepted the modification, well, does it matter?

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