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On November 18, 2021, President Biden signed an executive order, “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts” requiring, in most instances, that federal Service contracts and solicitations for such contracts include a clause which mandates that the awardee (and its subcontractors) of a follow-on Service contract for “same or similar

This week’s episode covers changes to its Cybersecurity Maturity Model Certification program, replacement of the FAR concept of “commercial item” with “commercial product’’ and “commercial service,” updates to the DOJ approach to corporate cooperation credit, developments about the Federal Contractor Vaccine Mandate, and a discussion of a bid protest decision relating to standing and IDIQ

On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have

On November 1, 2021, the Safer Federal Workforce Task Force (Task Force) issued new Frequently Asked Questions (FAQs) for federal contractors that are subject to Executive Order (EO) No. 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance.  As required by the implementing contract clause, covered contractors are required to comply with this new guidance.

Requests for accommodations:  First, the FAQs state that requests for accommodation do not need to be resolved before a covered contractor employee begins work on a covered contract or at a covered workplace.  While requests are pending, these employees must follow workplace safety protocols for employees that are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors, which Crowell addressed in client alerts on September 24, 2021 and October 6, 2021.  On the other hand, for covered employees that are not vaccinated because they received an accommodation from the covered contractor, agencies are entitled to determine which protocols such employees must follow when they enter a federal workplace.  Notably, agencies may determine that mandating the vaccine is the only safety measure available.  In such cases, covered employees with accommodations would be unable to work at the federal workplace but the contractor would not be relieved from meeting its contractual requirements.  Covered contractors could presumably take the same approach for employees that only or occasionally work at a covered contractor workplace.  Additionally, covered contractors should notify their contracting officer when one of their employees who works at a federal workplace has received an exception to the requirement to be fully vaccinated.

Corporate Affiliates:  Second, the FAQs clarify that corporate affiliates of a covered contractor that do not otherwise qualify as covered contractors may be covered by the vaccine mandate if: “(i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”  Indicia of control also include interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.  Therefore, employees of a corporate affiliate of a covered contractor working at the covered contractor’s “covered contractor workplace” will be subject to the vaccine mandate.  Additionally, a facility that is owned, leased, or otherwise controlled by an affiliate that is not a covered contractor will be considered a “covered contractor workplace” subject to the vaccine mandate where an employee of the affiliated covered contractor working on or in connection with a covered contract is likely to be present during the period of performance.
Continue Reading Task Force Issues New FAQs for Contractor Vaccine Requirements

This week’s episode covers the latest on the COVID vaccine requirement for contractors, Federal Data Strategy Action Plan, Army Digital Transformation Strategy, FAR Council call for comments on proposed amendments focusing on climate change, and a development under the False Claims Act , and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s

This week’s episode covers the latest on the COVID vaccine requirement for contractors, cybersecurity updates, the DoD Climate Adaptation Plan, and a class deviation relating to certified cost or pricing data, and is hosted by Peter Eyre and Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary

Yesterday, President Biden issued a Fact Sheet entitled Biden Administration Efforts to Address Bottlenecks at Ports of Los Angeles and Long Beach, Moving Goods from Ship to Shelf to help address the “delays and congestion” across the transportation supply chain. As has been widely reported in recent weeks and months, the global supply chain has

Executive Order 14042, issued on September 9, 2021, requires that certain federal contractors and subcontractors mandate vaccinations against COVID-19 for covered employees in addition to requiring compliance by covered employees and visitors with other COVID-19 safety protocols.

However, E.O. 14042 leaves several questions unanswered, including how agencies should implement the order and, in some cases,

Congress has not passed crucial funding bills for the start of FY 2022 and, on September 28, 2021, Treasury Secretary Yellen informed Congress that Treasury now estimates that the Federal government will reach the debt ceiling by October 18.  As a result, we again face the prospect of a government shutdown for lack of funding.  While Congress may yet take action, agencies across the government are likely to begin taking steps to prepare for a shutdown, and contractors should do so as well.

Although the issues that contractors would face under a government shutdown may vary with the circumstances of individual contracts, there are a number of common considerations. Based on our experience under prior Federal government shutdowns, these include:

  • Where Is the Money? For incrementally funded contracts, a “shutdown” situation is likely similar to those experienced at the end of any fiscal year when there is a “gap” between appropriations. Contractors will need to consider the implications of the various standard clauses (Limitation of Costs, Limitation of Funds, Limitation of Government Obligations) that may affect the government’s obligation to pay costs in excess of the amounts already obligated to their contracts. Of particular concern will be the standard provisions in those clauses that may limit the government’s liability for termination costs in the event that the contracts are eventually terminated without new funding. Contractors will need to decide whether to continue to perform or to take the actions authorized when funding is insufficient to pay for anticipated costs. But for contracts that are fully funded or that have incremental funding sufficient to cover all anticipated costs, including termination costs, a shutdown would not normally create new funding risks.


Continue Reading Potential Federal Government Shutdown: Crowell & Moring Identifies and Answers Common Questions

This afternoon, the Safer Federal Workforce Task Force issued its Guidance regarding COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (at all tiers), pursuant to President Biden’s September 9, 2020 Executive Order.  The 14-page Guidance addresses the following topics:

  • Vaccination requirement.  The Guidance mandates vaccinations, with exceptions only for those employees legally