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DoD Expands the Scope of the COVID-19 Vaccine Mandate to Include OTAs


The Department of Defense (DoD) recently issued a memorandum implementing the requirements of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, in Other Transaction Agreements (OTAs). This move by DoD represents yet another federal expansion of the mandate outside of the scope set forth in the Safer Federal Workforce Task Force Guidelines.

The substance of the clause to be inserted in OTAs and the guidance to contract officers for its inclusion mirrors the requirements set forth in the DFARS Clause 252.223-7999 Deviation, which the Department of Defense previously published to comply with the Executive Order.

Under the memorandum, DoD contracting officers are required to include the clause in OTAs for services above $250,000 where:

    • The solicitation was issued on or after October 15, 2021
    • The award was made on or after November 14, 2021, from solicitations before October 15, 2021
    • The extension was made on or after October 15, 2021
    • The new work will be executed on or after November 14, 2021, within an existing ceiling or period of performance
    • All options exercised on or after October 15, 2021

However, DoD contracting officers are also being given broad latitude to include the clause in OTAs outside the date ranges above, OTAs below the $250,000 threshold, and OTAs for the manufacture of products.

We’ve already seen GSA use the Executive Order’s permissive language to incorporate FAR Clause 52.233-99 in all GSA Schedule holder contracts including those for products. This new expansion of the Guidelines’ reach demonstrates the government’s commitment to ensure compliance with the mandate by as many federal contractors and subcontractors as possible.

DoD contractors who are expecting OTAs or modifications to OTAs should expect to be required to comply with the Safer Federal Workforce Task Force Guidelines in the very near future.  Affected contractors face a very short timeline to vaccinate any unvaccinated employees and achieve compliance. Given the waiting period between two dose vaccine shots and the waiting period after the second dose to be considered “fully vaccinated,” DoD contractor employees may need to receive the first shot in less than one week from today.

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