September 16, 2021

The Department of Defense (DoD) announced an “early engagement opportunity” to support the agency’s implementation of President Biden’s Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” This announcement from DoD does not provide any detail on what the agency’s implementation of the EO will entail.

EO 14042 applies to: (1) new contracts; (2) new contract-like instruments; (3) new solicitations for a contract or contract-like instrument; (4) extension or renewal of an existing contract or contract-like instrument; and (5) exercise of an option on an existing contract or contract-like instrument.  Of particular note, the EO is explicit that its requirements apply in the context of construction.  The EO defines the term “contract or contract-like instrument” to reflect the meaning set forth in the Department of Labor’s July 22, 2021 proposed rule on “Increasing the Minimum Wage for Federal Contractors.”  In this regard, the term includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them.  In addition to bilateral instruments, contracts are also defined broadly to include: (1) awards and notices of awards; (2) job orders or task letters issued under basic ordering agreements; (3) letter contracts; (4) orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; (5) exercised contract options; and (6) bilateral contract modifications.  The July 2021 proposed rule and, therefore, the EO also make clear that the term “contract” includes contracts covered by the Davis-Bacon Act.

The EO directs federal agencies to ensure that covered contracts and contract-like instruments include a clause that the contractor and any subcontractors (at any tier) will incorporate into lower-tier subcontracts.  This clause will apply to any workplace locations in which an individual is working on or in connection with a federal government contract or contract-like instrument.  The clause will specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations to be issued by the Safer Federal Workforce Task Force (Task Force), provided that the Director of the Office of Management and Budget approves the guidance and determines that adherence to the guidance will “promote economy and efficiency in federal contracting.”  By September 24, 2021, the Task Force will provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to the Task Force’s guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a federal government contract or contract-like instrument.  The EO goes on to clarify that it is not intended to excuse noncompliance with any applicable state law or municipal ordinance establishing more protective safety protocols or with any more protective federal law, regulation, or agency instructions for contractor or subcontractor employees working at a federal building or a federally-controlled workplace.

Responses to this early engagement opportunity are due by October 18, 2021 and can be submitted here.  That said, DoD notes that comments received by September 24, 2021 will be “most useful.”

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