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41 minutes ago, powerbab said:

Thanks for the quick response Vern! You are correct, we can't just add in a clause unilaterally, it would have to be bilateral.

In service contracts, however, there is a possible way around that fact.

Instead of adding a "clause" to the contract, make the vaccine mandate a "task" and add it to the statement of work via a change order pursuant to the Changes clause. I think it would be easy to make a case that the change is within scope. Whether you could convince a court or a board of contract appeals is a question.

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46 minutes ago, Vern Edwards said:

In service contracts, however, there is a possible way around that fact.

Instead of adding a "clause" to the contract, make the vaccine mandate a "task" and add it to the statement of work via a change order pursuant to the Changes clause. I think it would be easy to make a case that the change is within scope. Whether you could convince a court or a board of contract appeals is a question.

Thanks so much for that tip!

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1 hour ago, Vern Edwards said:

In service contracts, however, there is a possible way around that fact.

Instead of adding a "clause" to the contract, make the vaccine mandate a "task" and add it to the statement of work via a change order pursuant to the Changes clause. I think it would be easy to make a case that the change is within scope. Whether you could convince a court or a board of contract appeals is a question.

Adding the terms of the mandate to the statement of work -if applying it to existing tasks- would seem to be out of scope, not a change per the changes clause.

I could see where the government could add the mandate to the statement of as a condition for issuance of future task orders.

At any rate, a “change” in the contract’s terms and conditions would entitle the contractor to an equitable adjustment to applicable pricing and possibly to performance delays for any time and/or cost impacts, if you cite the Changes clause as the authority. Or, if not cited,  but is a constructive change (i.e., the contractor considers it a change).

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I prefer supplemental agreement.

However, I can see an argument for a change order under the Changes clause as being within the general scope of the contract.  In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards.  And, with a change order, the contractor can afterwards assert a right to an adjustment in contract price or other terms as appropriate.

Same as for imposing a new badging and background check requirement, right?

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18 minutes ago, ji20874 said:

I prefer supplemental agreement.

Generally, so do I. But a change via supplemental agreement can take time, and if you believe that the vaccine mandate will save lives, then a change order followed by a definitizing supplemental agreement makes sense.

Of course, it's a moot point in light of the injunctions, at least for now.

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59 minutes ago, joel hoffman said:

Adding the terms of the mandate to the statement of work -if applying it to existing tasks- would seem to be out of scope, not a change per the changes clause.

"Would seem to be"? Nonsense. I could make a respectable argument that it's within-scope in my sleep. In fact, ji20874 just made a darn good one.

1 hour ago, joel hoffman said:

At any rate, a “change” in the contract’s terms and conditions would entitle the contractor to an equitable adjustment to applicable pricing and possibly to performance delays for any time and/or cost impacts, if you cite the Changes clause as the authority. Or, if not cited,  but is a constructive change (i.e., the contractor considers it a change).

If the contractor could show that the change caused an increase or decrease in the cost or time of performance, then of course the contractor should get an equitable adjustment. So what?

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25 minutes ago, Vern Edwards said:

"Would seem to be"? Nonsense.

The EO didn’t make it mandatory for existing service contracts except for extensions or new work or new tasks.  
At any rate the Courts are attacking the mandates as an overextension of Biden’s authority. 

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11 minutes ago, joel hoffman said:

The EO didn’t make it mandatory for existing service contracts except for extensions or new work or new tasks.  
At any rate the Courts are attacking the mandates as an overextension of Biden’s authority. 

@joel hoffmanWhat do those two sentences have to do with your assertion that a change to add the requirement "would seem to be" out of scope?

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I didn’t “assert” that a change (order) to add the requirement  would “seem to be”out of scope. Read the definition of “assert”. “Seem to be “ or “seemingly be” is not an “assertion”. 

The Executive Order itself is being challenged by the Courts. I think that is factual.

The Executive Order didn’t authorize, direct or suggest that the government could unilaterally mandate that contractors require employees to be vaccinated on existing tasks or on-going contracts, absent extensions, options, new work added, etc. I’m limiting my opinion to mandatory vaccinations here.

Certainly, mandating safety procedures like masking and social distancing on federal job sites can reasonably be considered applicable.

However, I doubt that the government can unilaterally mandate a company’s entire off-site workforce, including at home, remote employees to be vaccinated on such pre-existing contract efforts.

3 hours ago, Vern Edwards said:

I think it would be easy to make a case that the change is within scope.

3 hours ago, Vern Edwards said:

Whether you could convince a court or a board of contract appeals is a question.

Seems like you said it’s easy to make a case but questionable whether one could withstand a legal challenge…

 

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23 minutes ago, joel hoffman said:

I didn’t “assert” that a change (order) to add the requirement  would “seem to be”out of scope. Read the definition of “assert”. “Seem to be “ or “seemingly be” is not an “assertion”. 

Don't be childish, Joel. That's right out of seventh grade. You asserted, and if you don't know that, then it's you who should read the definition.

You said that such an order would seem to be out of scope. That's an assertion of fact. You didn't say to whom it would seem to be out of scope, but your statement was an assertion nonetheless.

I agree that a change order would have to be narrower than the executive order. But it could require that all personnel employed at the government's facility be fully vaccinated and boosted, and tested regularly if they lived with someone who was not.

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There are some cases that talk about cardinal changes in terms of 'modifications which are so fundamental that they cannot be redressed within the contract by an equitable adjustment to the contract price.'  Even in the absence of the preliminary injunctions, I hope no contracting officer unilaterally modifies a contract to require vaccinations.  While the Pfizer and Moderna vaccines seem safe and effective, those who disagree and are faced with the choice of either taking a vaccine of losing their contract would certainly argue that a price adjustment doesn't answer the mail.

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Here is the change order that was proposed by ji20874 as within scope:

2 hours ago, ji20874 said:

In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards. 

That would be within scope, in my opinion, and would not confront a contractor with any reason to lose its contract.

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2 hours ago, ji20874 said:

In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards…Same as for imposing a new badging and background check requirement, right?

This is absolutely brilliant.  Can we just skip all the temporary injunction delays and go to doing this?  It’s probably what the EO should have said anyway.

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15 minutes ago, Vern Edwards said:

That would be within scope, in my opinion, and would not confront a contractor with any reason to lose its contract.

I agree, as there are health and religious accommodation exceptions available to Government employees, and it only applies to contract performance at the Government worksite.  The cases are Allied Materials & Equip. Co. v. United States, 215 Ct. Cl. 406, 410, 569 F.2d 562, 564 (1978) and Green Mgmt. Corp. v. United States, 42 Fed. Cl. 411, 430 (1998).  The "readdressable" aspect seems to be a factor in assessing whether the change results in a new and substantially different undertaking.

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4 hours ago, ji20874 said:

I prefer supplemental agreement.

However, I can see an argument for a change order under the Changes clause as being within the general scope of the contract.  In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards.

I see a new safety requirement for anyone entering a Government facility as an act of the Government in its sovereign capacity. I'm not sure this would necessarily require a contract modification.

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4 hours ago, Don Mansfield said:

I see a new safety requirement for anyone entering a Government facility as an act of the Government in its sovereign capacity. I'm not sure this would necessarily require a contract modification.

Interesting.   Is the EO and its subsequent clause public and general and not directed a particular contractors?

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14 minutes ago, C Culham said:

Interesting.   Is the EO and its subsequent clause public and general and not directed a particular contractors?

I wasn't referring to the specific EO. I meant if the Federal Government were to mandate vaccinations for anyone to gain access to a Federal facility.

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6 hours ago, Don Mansfield said:

I see a new safety requirement for anyone entering a Government facility as an act of the Government in its sovereign capacity.

I want to disagree.  But only because this would mean, from a FASA purist standpoint, it should not be imposed on commercial service acquisitions.  That would complicate its enforcement.

I see the proliferation of vaccine mandates by commercial employers to get in the building, e.g. hospital workers, as potentially damning of your argument.

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