Update: GSA is issuing this notice to inform GSA contractors that the United States District Court for the Southern District of Georgia issued a preliminary injunction [PDF - 544 KB] on December 7, 2021, that halts enforcement of FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in GSA contracts and contract-like instruments implementing the Safer Federal Workforce Taskforce guidance for contractors and subcontractors nationwide.
What does this mean?
GSA and Federal agencies using GSA contracts will take no action to enforce FAR Clause 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, in any GSA contract or contract-like instrument. The Safer Federal Workforce Taskforce is maintaining a website with current information related to this subject at https://www.saferfederalworkforce.gov/contractors.
What does it mean to "not enforce" the clause?
If a GSA contract already includes FAR Clause 52.223-99, Federal agencies should not require the contractor to fulfill the requirements outlined in the Safer Federal Workforce Taskforce guidance:
Vaccination of covered contractor employees;
Requirements related to masking and physical distancing while in covered contractor workplaces; and
Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
GSA contractors will continue to be eligible for new contracts, new orders, options, and extensions even if they have not agreed to follow FAR clause 52.223-99
GSA notes that the court order only applies to the enforcement of the contract clause. Federal agency workplace safety protocols for Federal buildings and Federally controlled facilities still apply for purposes of accessing those facilities (e.g., masking and social distancing). Contractor employees working onsite in those facilities must still follow those Federal agency workplace safety protocols.
Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
Contracting Officers and Contracting Officer's Representatives are encouraged to use their discretion. Ensuring a vaccinated workforce is a high national priority.
GSA will send modification requests to existing contract holders. Contracting Officers will send the cover letter with the modification request to contractors. Please see the GSA Class Deviation.
Per the Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors, acceptance is not mandatory but strongly encouraged for contracts whose value is equal or less than the SAT. If you hold a contract at or below the SAT/SLAT or a contract only for the manufacturing of products, GSA strongly encourages you to accept the modification.
GSA will continue encouraging acceptance of the modification.
CO's will enforce just like any other contracting requirement. If concerns arise about vaccination status of a particular employee, the CO should work with the contractor's contract administration POC to ask the contractor to confirm the employee compliance with the vaccination requirement.
Since the contract clause is required in all Schedule contracts, the MAS Program will not issue modifications to rescind mass modifications accidentally accepted by the contractor. Contractors that accepted the modification must come into compliance with the clause and Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors. Note that the guidance requires that covered contractor employees must be fully vaccinated no later than December 8, 2021. If the contractor is unable to comply with the clause, it may request cancellation of its contract in accordance with contract GSAR clause 552.238-79.
Performance will continue until the end of the current period. If the contractor does not sign the modification, the contractor cannot receive new awards, exercised options, or extensions until it accepts the clause. GSA will not cancel the IDV/IDIQ.
Yes, MAS offerors are required to accept the solicitation refresh 8 in order to receive a MAS award.
Yes, GSA views acceptance of the modification as an agreement that the contractor intends to comply with the terms. The federal government is using our human resource departments to take steps to implement the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees and expects our contractors to do the same. If the covered contractor demonstrates progress in meeting the requirements of the clause, GSA will work with contractors to ensure they have the time and opportunity to achieve full compliance.
Contracting Officers may exercise discretion to extend performance if they determine an extension would be appropriate to address performance impacts that directly result from a contractor's compliance with the Safer Federal Workforce Task Force guidance.
GSA does not intend to issue unilateral modifications to incorporate the clause into GSA Areawide Public Utility Contracts. Federal ordering agencies utilizing the GSA Areawide Public Utility Contracts may have specific requirements regarding implementation of Executive Order 14042 for authorizations entered into under these contracts. Please see the Chairperson of the Civilian Agency Acquisition Council (CAAC) Letters for agency-specific guidance.
Onsite Contractor Employees and Federal Workplace Safety Protocols
For questions related to attestation forms and facility access, please see Safer Federal Workforce Task Force Vaccinations for the most up-to-date information regarding access requirements to federal facilities. Covered contractor employees must comply with agency safety requirements while in federal workplaces.
There is no contractor cost for vaccination, and vaccination is widely available. The implementation of the clause will decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors.
Upcoming OSHA guidance gives companies with 100 or more employees the option of vaccination or weekly testing. The deviation will be less expensive for federal contractors.
Accordingly, the cost of implementing the safeguards required by the deviation is expected to be offset by the cost avoidance of lost productivity.
Claims or requests for equitable adjustment due to COVID-19 vaccination should be submitted to your Contracting Officer, who will review the request accordingly.
Contractors are encouraged to track all costs associated with their contract. Contracting officers should point out to contractors the appropriate equitable adjustment clause that is included in their contract. Contractors have the right to request an equitable adjustment from the Government. However, GSA will not consider a pending request for an equitable adjustment as a valid reason for contractors to hold up signing the bilateral modification. Contracting Officers should consider request for equitable adjustments only if the contractor is able to demonstrate how this requirement has increased its costs and why that cost is allocable to their contract.
Scope and Applicability of Task Force Guidance for Federal Contractors
Per the Executive Order, the clause applies to all services and construction above the simplified acquisition threshold (SAT) and simplified lease acquisition threshold (SLAT). Per the guidance from the Safer Federal Workforce Task Force, agencies are strongly encouraged to include it in contracts for the manufacturing of products. GSA is following this guidance and is strongly encouraging it.
Yes, if an IDIQ contract is modified to include the new clause, it applies to existing and future orders.
The EO includes all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract or contract-like instrument, except covered contractor employees who only perform work outside of the United States or its outlying areas. Please see the Safer Federal Workplace Task Force Guidance for Federal Contractors and Subcontractors.
Please see the GSA Class Deviation and PBS/FAS Specific Guidance.
No, the requirement to comply with the guidance applies equally to covered contractors regardless of whether they are large or small businesses. There is no employee number threshold for applicability. This is different from upcoming OSHA guidance that will provide requirements for companies with 100 or more employees.
"GSA contracts for utility supply are not required to include the clause. If the contract is for a service or is otherwise covered (e.g., ESPCs), and the contract is above the SAT, the clause is required for new contracts, as well as for options, renewals, or extensions of existing contracts. Otherwise, GSA COs should strongly encourage contractors to sign the modification.
Please see the GSA Class Deviation and PBS/FAS Specific Guidance.
Circle 1 clarified to Any contractor employee working" on a covered contract
Circle 2 clarified to "Any contractor employee working" in connection with a covered contract
Circle 3 clarified to "Any contractor employee who would come into contact with* the individuals in circles 1 or 2 at covered contractor ** facilities (covered workplace location.
* for example, in elevators, restrooms, cafeterias, parking garages/lots, etc. ** "covered contractor" means any contract or subcontract that includes the new clause
Yes, the subcontract has to meet the $250K threshold (exceed the SAT). See paragraph (d) of the FAR Clause.
At this time, there is no indication that there will be an annual certification requirement.
The contractor designee(s) are not required to be Key Personnel. This POC can be listed within the solicitation response or contract as deemed necessary by the CO.
For DoD specific IDV/IDIQs, the DFAR clause should be included. Per GSA Internal FAQ #14, agencies are encouraged to use the standard FAR clause. For all applicable GSA IDV/IDIQs, FAR 52.223-99 will be incorporated. GSA COs may, at their discretion or per agency requirement, issue a modification to incorporate an agency specific deviation at the task order level.
Yes, FAR 52.223-99 must be incorporated into all GSA FSS schedule contracts. The clause will flow down to all subcontractors with subcontracts in accordance with paragraph (d) of the clause.
Contracting officers should follow normal procedures for requests for economic price adjustments.
The FAR Clause 52.223-99 must be used as written. Per GSAM 501.404, class deviations to the GSAM must be approved by the Senior Procurement Executive (SPE).
Vaccination and Safety Protocols
The Safer Federal Workforce website, Frequently Asked Questions, contains the most up-to-date information regarding workplace safety during the COVID-19 pandemic.
At this time, there is no guidance regarding testing for contractor employees that meet the vaccination exceptions due to religious or medical reasons. A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee's place of performance. If the agency that is the party to the covered contract is a "joint employer" for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.
Contractors are required to follow the workplace safety protocols in the Safer Federal Workforce Task Force Guidance. Per the Safer Federal Workforce Task Force Guidance, the federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a federal workplace.
Last Reviewed: 2021-12-14
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