By Global Services on October 22, 2021
What is the Executive Order?
Shortly after releasing an Executive Order (EO) mandating COVID-19 vaccines for federal employees, President Joseph R. Biden issued EO 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors, establishing the Safer Federal Workforce Task Force Guidance. Under this guidance, contractors must comply with three (3) basic requirements:
- Have all employees fully vaccinated by December 8, 2021
- Ensure employees follow Centers for Disease Control and Prevention (CDC) protocols described in the guidance, and
- Designate a lead person for compliance with the mandate.
How is GSA Complying with the Executive Order?
In support of this guidance, the General Services Administration (GSA) issued GSA Class Deviation CD-2021-13 to implement guidance established by the EO as well as Federal Acquisition Regulation (FAR) Clause 52.223-99 into all new contracts and contract-like instruments awarded on or after October 15, 2021.
What is Clause 52.223-99 and Who Must Comply?
FAR Clause 52. 223-99 Ensuring Adequate COVID-19 Safety Protocols For Federal Contractors (OCT 2021):
- “(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.”
In order to continue work with federal partners, the following personnel must be vaccinated:
- Any contractor employee working on a covered contract (covered = any contract that includes the clause)
- Any contractor employee working in connection with the covered contract (overhead pool)
- And anyone who would come into contact with the aforementioned personnel (people in common areas such as elevators, restrooms, cafeterias, etc. at the contractor’s office).
GSA’s Federal Acquisition Service (FAS) will require FAR Clause 52.223-99 compliance for the following contracts:
- All Federal Supply Schedule (FSS) Contracts
- Government-Wide Acquisition Contracts (GWACs)
- Multi Agency Contracts (MACs)
- Commercial Solutions Opening (CSO) and
- Tenders of Service over the Simplified Acquisition Threshold (SAT) (T&C documents).
What Does This Mean for MAS Contractors?
On October 8, 2021, GSA released Multiple Award Schedule (MAS) Refresh #8 to include FAR Clause 52.223-99. Consequently, all current MAS contractors have until November 14, 2021 to sign the mass modification to stay compliant.
How Will GSA Enforce This?
GSA advised that compliance will ultimately be the burden of the contractor. Contractors are responsible for keeping their prime team and subcontractors on projects compliant.
For Refresh #8 Mass Modifications, Contracting Officers (COs) will enforce this addition like any other contractual requirement; meaning they reserve the right to reach out to MAS contractors who have missed the deadline and act accordingly if they remain noncompliant (cancellation of contract).
In terms of tracking the actual vaccine compliance, COs cannot directly request employee vaccination proof. However, if legitimate concerns arise about a particular employee, the CO is encouraged to confirm vaccination compliance through the appropriate Point-of-Contact (POC).
With the inclusion of Clause 52.223-99 in their contracts, GSA is continuing to support their federal and industry partners in all things acquisitions. All MAS Contractors who fit the descriptions above must comply in order to continue their business partnerships with government customers.
While we are not entirely sure how vaccine exemptions will come into play for the MAS Schedule Program, we do advise our clients to reach out to our valued partners at PilieroMazza for guidance.
MAS contractors, please be on the lookout for Mass Modifications soon, as the deadline is steadily approaching. In the meantime, please grab all new solicitation documents here and submission templates here.
Need assistance keeping your GSA MAS Schedule compliant? Contact Global Services to learn how we can help!