September 14, 2021

This morning’s Federal Register includes President Biden’s September 9, 2021 Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” which is intended to “promote economy and efficiency in procurement by contracting with sources that provide adequate COVID-19 safeguards for their workforce.”  This EO was issued alongside President Biden’s related EO 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” which generally requires the COVID-19 vaccination for federal employees.

The EO 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 the set form 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, this 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.

Moreover, the Federal Acquisition Regulatory (FAR) Council is tasked with amending the FAR to provide for inclusion of the clause described above in federal procurement solicitations and contracts.  By October 8, 2021 the FAR Council must take initial steps to implement appropriate policy direction to acquisition offices for use of the clause.  In addition, federal agencies must take steps by October 8, 2021 to exercise any applicable authority to ensure that contracts and contract-like instruments that are not subject to the FAR and that are entered into on or after October 15, 2021 include the clause.

This EO is effective immediately and will generally apply where the relevant contract or contract-like instrument will be entered into, the relevant contract or contract-like instrument will be extended or renewed, or the relevant option will be exercised, on or after October 15, 2021.  Agencies are also “strongly encouraged” to ensure the inclusion of the EO’s safety protocols: (1) in cases where agencies have issued a solicitation before the effective date of the steps they must take by October 8 and entered into a new contract or contract-like instrument resulting from such solicitation within 30 days of such effective date; and (2) for all existing contracts and contract-like instruments, solicitations issued between September 9, 2021 and October 15, 2021, and contracts and contract-like instruments entered into between September 9, 2021 and October 15, 2021.

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