Morris Manning & Martin, LLP

How Biden’s New COVID-19 Executive Order Could Affect Federal Contractors

09.13.2021

On September 9, 2021, President Biden issued an Executive Order (EO) requiring federal contractors to provide adequate COVID-19 safeguards for their workforce, including, among other measures, a vaccine mandate. Effective October 15, 2021, agencies must include the requirement in their contracts with federal contractors specifying that the contractor and subcontractors (at any tier) must comply with the guidance issued by the Safer Federal Workforce Task Force (Task Force Guidance) related to the COVID-19 vaccine. The Task Force Guidance is expected to be published by September 24, 2021.

The Task Force Guidance will provide definitions of relevant terms for contractors and subcontractors, explanations of the protocols required for contractors and subcontractors to be in compliance, and any exceptions to the Task Force Guidance that apply to contractor and subcontractor workplace locations. Following the release of the Task Force Guidance, a Federal Acquisition Regulation (FAR) clause will be issued on or before October 8, 2021.

It is important to note that the EO and the contemplated FAR rule are not retroactive. They will only apply to new contracts, new solicitations for a contract, extensions or renewals of an existing contract, and the exercise of an option on an existing contract. Therefore, federal contractors currently operating under an existing contract do not need to enact any additional protocols under the EO.

The EO's applicability is further limited to certain types of contracts. A contract will only be subject to the EO if:

  • it is a procurement contract for services, construction, or a leasehold interest in real property
  • it is a contract for services covered by the Service Contract Act
  • it is a contract including any concessions contract excluded by Department of Labor regulations
  • it is a contract entered into with the federal government in connection with federal property or land and related to offering services for Federal employees, their dependents, or the general public

As such, the EO does not appear to apply to prime contracts solely for supplies. In addition, the EO states that it does not apply to:

  • grants
  • contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act
  • contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold
  • employees who perform work outside the United States or its outlying areas
  • subcontracts solely for the provision of products

It is not clear if federal contractors working remotely "in connection with" a contract will also fall within the scope of the EO or whether federal contractors will be reimbursed for the costs of the required vaccinations or testing. These questions and more will hopefully be addressed in the days and weeks ahead.

If you have any questions about this legal update, please reach out to the Government Contracts group.