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Civilian Agency Acquisition Council (“CAAC”) Memorandum: Class Deviation Regarding Executive Order 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors

Posted on September 30, 2021

On September 30, 2021, the Civilian Agency Acquisition Council (“CAAC”) released a memorandum authorizing all civilian United States government agencies to issue a class deviation to implement Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Attached to the CAAC memo is a FAR Deviation Clause (the “Clause”) that CAAC states “is consistent with the E.O. and the Task Force Guidance.” CAAC encourages all agencies to implement the Clause as written, stating “[t]his CAAC Letter constitutes consultation with the Chair of the CAAC required by FAR 1.404(a)(1) if your agency adopts the attached clause language without change in the agency’s deviation.”

The CAAC memo states that agencies are required to include the clause in:

  • new contracts awarded on or after November 14, 2021, from solicitations issued before October 15, 2021 (this includes new orders awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, under existing indefinite-delivery contracts);
  • new solicitations issued on or after October 15, 2021, and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15, 2021, for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
  • extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
  • options on existing contracts and orders exercised on or after October 15, 2021.

The CAAC memo states that agencies are “encouraged, but not required” to include the clause in:

  • contracts that have been or will be awarded prior to November 14, 2021, on solicitations issued before October 15, 2021; and
  • contracts that are not covered or directly addressed by the E.O. because the contract or subcontract is under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

Finally, the clause shall not be applied to:

  • contracts and subcontracts with Indian Tribes under the Indian Self- Determination and Education Assistance Act (Public Law 93-638) (the exclusion would not apply to a procurement contract or subcontract under the FAR to an Indian-owned or tribally-owned business entity); or
  • solicitations and contracts if performance is outside the United States or its outlying areas (the exclusion is limited to employees who are performing work only outside the U.S. or its outlying areas).

The full clause is included below:

FAR Deviation Clause

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors

September 30, 2021

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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Subpart 52.2—Text of Provisions and Clauses

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[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors.

ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (OCT 2021) (DEVIATION)

(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 simplified acquisition threshold, as defined in Federal

Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.

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(End of clause)]

Please contact a Ward & Berry attorney if you would like advice or have questions about how these recent changes may effect your business.