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On October 1, a full week ahead of the October 8 deadline, the Federal Acquisition Regulatory Council (“FAR Council”) issued the draft FAR deviation clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, which is to be inserted into covered contracts and subcontracts, as well as a memorandum, Issuance of Agency Deviations to Implement Executive Order 14042, that provides guidance to agencies regarding its implementation. When included in contracts and contract-like instruments, the draft deviation clause will impose the Task Force Guidance’s requirements on contractors and subcontractors. The FAR Council’s guidance permits agencies to develop their own deviation clauses, and the council has opened a case to make appropriate amendments to the FAR to reflect the requirements of the EO.

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The following are some key takeaways from the FAR Council’s memo:

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The FAR Council directs agencies to act “expeditiously” to issue any deviation clauses to allow contracting officers to begin applying the deviation clauses on or before October 8. The FAR Council’s memo also provides information regarding the applicability and effective dates of the clause as follows:

Agencies are also “encourage[d]” to apply the requirements of the Task Force Guidance broadly, consistent with applicable law, by including the clause in:

This FAR Council guidance appears to give agencies greater latitude in beginning the process of amending existing contracts to include the FAR deviation clause.

Pursuant to the FAR Council’s memo, the FAR deviation clause will not be applied to:

In conjunction with the release of the FAR Council’s memo, several agencies (including the General Services Administration (“GSA”) and Department of Defense (“DoD”)) have issued their own deviation clauses and provided additional guidance that addresses two key areas of uncertainty for contractors: (1) incorporation of the vaccine mandate into existing contracts and (2) application (if any) to contracts excluded by EO 14042, which the Task Force Guidance “strongly encourages” agencies to incorporate into contracts excluded by the EO.

Generally, the agency deviations go beyond the EO’s requirements by allowing (or in some cases requiring) the deviation clause to be added to prime supply contracts (not just services contracts). Although most agency deviation instructions defer questions on incorporation to more operational levels, the DoD and GSA instructions have additional nuances, which are discussed in further detail below.

DoD published Class Deviation 2021-O0009 on September&nbsp;30 to provide direction to DoD contracting officers on the incorporation of new DFARS clause, DFARS 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009). The DFARS deviation clause is materially the same as the clause at FAR 52.223-99 and also tracks the provisions of the EO and the current Task Force Guidance. The DoD memorandum also notes that the deviation is effective immediately and must be inserted into certain prescribed DoD contracts. Contractors performing DoD contracts should be aware of two key issues raised in the memo:

GSA published Class Deviation CD-2021-13 on September&nbsp;30 to provide direction to GSA contracting officers on how to incorporate the new FAR deviation clause. While the GSA class deviation generally tracks the provisions of the EO and the Task Force Guidance provided thus far, it offers additional guidance for different contract types as well as GSA-specific instructions. Key issues raised in the GSA class deviation include:

Additional Contractor and Subcontractor Considerations

Any government contractor or subcontractor that potentially must comply with the requirements in the EO, Task Force Guidance, and new agency class deviations should be aware of when and how the required contract clauses will affect their contracts. Such actions include monitoring the continued guidance as updated by the Safer Federal Workforce Task Force and carefully assessing the appropriateness of agency efforts to include implementing clauses. Contractors and subcontractors should consider developing written guidance on how to respond to these vaccine requirements, carefully documenting any potential costs associated with mandated compliance in order to potentially support future requests for equitable adjustment, and providing clear guidance to impacted employees.

Jessica V. Haire 202.973.2778 <a href="mailto:Jessica.Haire@ThompsonHine.com">Jessica.Haire@ThompsonHine.com</a>

Tom Mason 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. (Chip) Purcell, Jr. 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Ryan S. Spiegel 202.973.2742 <a href="mailto:Ryan.Spiegel@ThompsonHine.com">Ryan.Spiegel@ThompsonHine.com</a>

Joseph R. Berger 202.263.4193 <a href="mailto:Joseph.Berger@ThompsonHine.com">Joseph.Berger@ThompsonHine.com</a>

Mona Adabi 202.263.4147 <a href="mailto:Mona.Adabi@ThompsonHine.com">Mona.Adabi@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/FAR_Council__Agencies_Publish_Deviation_Clauses__Instructions_to_Implement_EO_14042_Vaccine_Requirements.pdf

FAR Council and Agencies Publish Deviation Clauses and Instructions to Implement EO 14042

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