ATTACHMENT 1 – NON GSA

Office of the Chief Financial Officer

Acquisition and Contract Management

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ACM-22-001

MEMORANDUM FOR: Acquisition and Contract Management Staff

Date: October 12, 2021

From: Sonja Truehart-McKinney, Senior Procurement Executive and Director of Acquisition

and Contract Management

Subject: Federal Acquisition Regulation (FAR) Class Deviation (Number 2022-01) -

Implementing Executive Order 14042, Ensuring Adequate COVID Safety Protocols for

Federal Contractors

Enclosure (1): Civilian Acquisition Agency Council (CAAC) Letter 2021-03 “Implementing

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal

Contractors”

Enclosure (2): Class Deviation 2022-01

Enclosure (3): Modification Cover Letter

Effective Date: Immediately

Purpose: This memorandum approves a class deviation from the Federal Acquisition Regulation (FAR)

to implement Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal

Contractors, signed September 9, 2021.

This memorandum also provides instructions for Peace Corps acquisition and contract management

workforce awarding contracts in the United States on when to include this new clause in solicitations

and contracts.

Authority: This class deviation is issued under the authority of FAR 1.404(a)(1) and through

consultation with the Chair of the CAAC via enclosure (1) CAAC Letter 2021-03.

Background: In order to ensure the health and safety of the federal workforce and contractor

community, the President signed E.O. 14042. The E.O. promotes economy and efficiency in Federal

procurement by ensuring that contractors and subcontractors that contract with the Federal Government

provide COVID-19 safeguards. The E.O. directs the Safer Federal Workforce Taskforce to issue

guidance to provide implementation details and the Federal Acquisition Regulatory (FAR) Council to

establish a new clause to be included in solicitations and contracts and contract-like instruments.

The Safer Federal Workforce Task Force issued guidance on September 24, 2021 at

saferfederalworkforce.gov which requires:

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 Vaccination of covered contractor employees, covered contractor employee means any full-time

or part-time employee of a covered contractor working on or in connection with a covered

contract or working at a covered contractor workplace. This includes contractor employees

working from home, although employees working from home are not required to follow the

CDC masking and social distancing protocols, since an employee’s personal residence is not a

covered contractor workplace. In limited circumstances a contractor is legally entitled to an

accommodation;

 Requirements related to masking and physical distancing while in covered contractor

workplaces. A covered contractor means a prime contractor or subcontractor at any tier who is

party to a covered contract; and

 Designation by covered contractors of a person or persons to coordinate COVID-19 workplace

safety efforts at covered contractor workplaces.

Applicability: The FAR Clause is applicable and required as follows:

 New Solicitations. Contracting officers shall include the clause at FAR 52.223-99 (see enclosure

2), Ensuring Adequate COVID Safety Protocols for Federal Contractors in new applicable

solicitations issued on or after October 15, 2021;

 Existing Solicitations. Contracting officers shall either amend the solicitation to include the

clause at FAR 52.223-99 or incorporate it into the award of the apparent successful offeror for

applicable solicitations that were issued prior to October 15, 2021, that have not closed, or

awards that have not been made by October 15, 2021;

 New Contracts. Contracting officers shall include the clause at FAR 52.223-99 in new

applicable contracts awarded on or after November 14, 2021, from solicitations issued before

October 15, 2021;and

 Existing Contracts. The clause at 52.223-99 shall be added to all existing applicable contracts

on or after October 15, 2021 before extensions, renewals of existing contracts or options are

exercised. Contracting officers shall encourage contractors (see enclosure (3) – Modification

Cover Letter) with existing contracts at or below the Simplified Acquisition Threshold (SAT) or

contracts solely for products, to accept a modification to add the clause at FAR 52.223-99 to

their existing contract(s).

o Modifications shall be bilateral

o Enclosure (3) shall be used with a draft modification

o Contracting officers shall complete as many modifications as possible before November

14, 2021

o Contracting officers shall ensure Indefinite Delivery Indefinite Quantity (IDIQ) contracts

i.e. Federal Supply Schedules (FSS), Government-Wide Acquisition Contracts (GWACs)

include clause 52.223-99 on or after October 15, 2021 before awarding task orders under

the applicable IDIQ.

 The clause shall not be applied to:

o Contracts and subcontracts with Indian Tribes under the Indian Self Determination and

Education Assistance Act (Public Law 93-638) (the exclusion would not apply to a

procurement contract or subcontract under the FAR to an Indian-owned or tribally-owned

business entity); and

o Solicitations and contracts if performance is outside the United States or its outlying

areas (the exclusion is limited to employees who are performing work only outside the

U.S. or its outlying areas).

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o Micro-Purchases

Deviation: Enclosure (2) provides the FAR Deviation Clause.

Expiration Date: This class deviation remains in effect until the FAR is amended or until rescinded.

Additional Information: Questions or comments on this class deviation may be directed to Frank

Miqueo, at [email protected].

Sonja Truehart-McKinney

Senior Procurement Executive and

Director of Acquisition and Contract

Management

Truehart-

McKinney, Sonja

Digitally signed by Truehart-

McKinney, Sonja

Date: 2021.10.12 14:58:19 -04'00'

GSA Office of Governmentwide Policy

September 30, 2021

CAAC Letter 2021-03

MEMORANDUM FOR CIVILIAN AGENCIES

FROM: WILLIAM CLARK

CHAIR

CIVILIAN AGENCY ACQUISITION COUNCIL (CAAC)

SUBJECT: Class Deviation From the Federal Acquisition Regulation Regarding

Implementation of Executive Order 14042, Ensuring Adequate COVID

Safety Protocols for Federal Contractors

This CAAC Letter is being issued to serve as consultation in accordance with

FAR 1.404, authorizing agencies to issue a class deviation to implement Executive

Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.

Executive Order (E.O.) 14042 was signed by the President on September 9,

2021, and published in the Federal Register at 86 FR 50985 on September 14, 2021.

The E.O. requires agencies to include a clause requiring contractors and subcontractors

at any tier to comply with all guidance for contractor or subcontractor workplace

locations as published by the Safer Federal Workforce Task Force (Task Force

Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

The clause applies to solicitations and contracts for services, including construction.

Agencies are required to include the clause in-

● new contracts awarded on or after November 14, 2021, from solicitations issued

before October 15, 2021 (this includes new orders awarded on or after

November 14, 2021, from solicitations issued before October 15, 2021, under

existing indefinite-delivery contracts);

● new solicitations issued on or after October 15, 2021, and contracts awarded

pursuant to those solicitations (this includes new solicitations issued on or after

October 15, 2021, for orders awarded pursuant to those solicitations under

existing indefinite-delivery contracts);

● extensions or renewals of existing contracts and orders awarded on or after

October 15, 2021; and

● options on existing contracts and orders exercised on or after October 15, 2021.

To maximize the goal of getting more people vaccinated and decrease the spread of

COVID-19, the Task Force strongly encourages agencies to apply the requirements of

the Task Force Guidance broadly, consistent with applicable law. Accordingly,

agencies are encouraged, but are not required to include the clause in-

● contracts that have been or will be awarded prior to November 14, 2021, on

solicitations issued before October 15, 2021; and

● contracts that are not covered or directly addressed by the E.O. because the

contract or subcontract is under the simplified acquisition threshold or is a

contract or subcontract for the manufacturing of products.

The clause shall not be applied to:

• contracts and subcontracts with Indian Tribes under the Indian Self-

Determination and Education Assistance Act (Public Law 93-638) (the exclusion

would not apply to a procurement contract or subcontract under the FAR to an

Indian-owned or tribally-owned business entity); or

• solicitations and contracts if performance is outside the United States or its

outlying areas (the exclusion is limited to employees who are performing work

only outside the U.S. or its outlying areas).

Section 3(a) of the E.O. requires the FAR Council to take initial steps to

implement appropriate policy direction to acquisition offices for use of the clause by

recommending that agencies exercise their authority under FAR subpart 1.4.

The attached FAR deviation clause is provided consistent with the E.O. and the

Task Force Guidance. (See Attachment). Contracting officers should follow the

direction for use of the clause set forth in the deviations issued by their respective

agencies.

This CAAC Letter constitutes consultation with the Chair of the CAAC required by

FAR 1.404(a)(1) if your agency adopts the attached clause language without change in

the agency’s deviation. If your agency intends to use clause text different from the

deviated clause text provided, the agency must consult with the CAAC Chair, William

Clark, who will consult with OMB and the Task Force to ensure consistency with

Administration policy. Any such request must be emailed to [email protected].

Agencies are advised to review, and update as necessary, any relevant guidance

previously provided to contractors to ensure its consistency with the deviated clause

text.

Once processed, agencies are requested to share the deviation widely among

their workforces to ensure full awareness of and compliance with E.O. 14042. The FAR

Council has opened a case (FAR Case 2021-021, Ensuring Adequate COVID-19 Safety

Protocols for Federal Contractors) to make appropriate amendments in the FAR to

reflect the requirements of E.O. 14042. It is recommended that the deviation be made

effective until the FAR is amended or the deviation is otherwise rescinded by the

agency.

Agencies are reminded that FAR 1.404 requires agencies to furnish a copy of

their approved class deviation (including direction to the workforce, prescription for use

of clause, and clause text) to the FAR Secretariat, General Services Administration, by

emailing the deviation to [email protected]. Agencies must submit their class

deviations no later than October 15, 2021.

If you have any questions or require additional information about this Letter,

please contact Zenaida Delgado at (202) 969-7207 or at [email protected].

Attachment

FAR Deviation Clause

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal

Contractors

September 30, 2021

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

*****

Subpart 52.2—Text of Provisions and Clauses

*****

[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal

Contractors.

ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL

CONTRACTORS (OCT 2021) (DEVIATION)

(a) Definition. As used in this clause -

United States or its outlying areas means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

(4) The territories of American Samoa, Guam, and the United States Virgin

Islands; and

(5) The minor outlying islands of Baker Island, Howland Island, Jarvis

Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island,

Palmyra Atoll, and Wake Atoll.

(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate

COVID Safety Protocols for Federal Contractors, dated September 9, 2021

(published in the Federal Register on September 14, 2021, 86 FR 50985).

guidance conveyed through Frequently Asked Questions, as amended during the

performance of this contract, for contractor or subcontractor workplace locations

published by the Safer Federal Workforce Task Force (Task Force Guidance) at

https:/www.saferfederalworkforce.gov/contractors/.

(d) Subcontracts. The Contractor shall include the substance of this clause,

including this paragraph (d), in subcontracts at any tier that exceed the simplified

acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the

date of subcontract award, and are for services, including construction,

performed in whole or in part within the United States or its outlying areas.

(End of clause)]

*****

ENCLOSURE (2)

FAR Deviation Clause

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

*****

Subpart 52.2—Text of Provisions and Clauses

[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal

Contractors.

ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL

CONTRACTORS (OCT 2021) (DEVIATION)

(a) Definition. As used in this clause –

United States or its outlying areas means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

(4) The territories of American Samoa, Guam, and the United States Virgin

Islands; and

(5) The minor outlying islands of Baker Island, Howland Island, Jarvis

Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island,

Palmyra Atoll, and Wake Atoll.

(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate

COVID Safety Protocols for Federal Contractors, dated September 9, 2021

(published in the Federal Register on September 14, 2021, 86 FR 50985).

guidance conveyed through Frequently Asked Questions, as amended during the

performance of this contract, for contractor or subcontractor workplace locations

published by the Safer Federal Workforce Task Force (Task Force Guidance) at

https:/www.saferfederalworkforce.gov/contractors/.

(d) Subcontracts. The Contractor shall include the substance of this clause,

including this paragraph (d), in subcontracts at any tier that exceed the simplified

acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the

date of subcontract award, and are for services, including construction,

performed in whole or in part within the United States or its outlying areas.

(End of clause)

Office of the Chief Financial Officer

Acquisition and Contract Management

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Enclosure (3)

Contractor’s Name

Contractor’s Street Address

Contractor’s City, State and Zip Code

Date: Click here to enter a date.

Subject: Contract Modification - New Clause for Ensuring Adequate COVID-19 Safety

Protocols for Federal Contractors - Contract Number

Dear Contractor’s POC name,

The health and safety of Peace Corps employees, contractors and their families is our top priority. In

order to ensure the health and safety of the Federal workforce and contractor community, the President

signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.

The requirements in the Executive Order are being implemented via a FAR deviation. The clause in the

FAR deviation will be incorporated into Peace Corps contracts via a bilateral modification. If you hold

a Peace Corps contract for services that exceeds the simplified acquisition threshold (SAT) the Peace

Corps strongly encourages you to accept this contract modification at this time. If your contract is for

services at or below he SAT, or solely for products, the Peace Corps also strongly encourages you to

accept this contract modification. Acceptance of this modification is mandatory for all service contracts

that exceed the SAT before Peace Corps will extend the period of performance of your contract, or

exercise an option.

Sincerely,

Contracting Officer