Bass, Berry & Sims attorney Richard Arnholt was quoted in a Law360 article addressing key questions as federal contractors work to comply with the September 9 executive order mandating the COVID-19 vaccine and the ongoing guidance aimed at clarifying undefined terms. In response to a number of concerns raised by contractors and their attorneys, the Biden administration has leveraged its Safer Federal Workforce Task Force – consisting of members from eight federal agencies – to issue additional guidance, facilitate public meetings, and provide responses to frequently asked questions.

“In 20 years of doing government contracts work, I’ve never seen anything move so quickly, and evolve so fast and change so fast as this mandate,” Richard said. “It’s really astonishing.”

The executive order covers both contracts and subcontracts, with an exclusion for subcontracts “solely for the provision of products.” In additional guidance from the Federal Acquisition Regulatory (FAR) Council, the mandate was extended to include both subcontracts and contracts for the “manufacturing of products,” which has created confusion for contractors as agencies interpret the requirement in different ways.

Richard noted that the General Services Administration (GSA) is seeking to apply the requirement to all Federal Supply Schedule contracts, essentially on the basis that product contracts also include ancillary services like installation or maintenance. “Agencies are entitled, and they’re strongly encouraged, to include this provision in contracts where it’s not mandatory,” he said. “But by including it in basically every Schedule contract, the GSA is imposing it on commercial suppliers who maybe do little government contract work.”

Other agencies have taken more flexible approaches, such as the U.S. Department of Veterans Affairs (VA), which has its own Federal Supply Schedule program and is only applying the mandate to its Schedules that are “clearly for services,” Richard added.

Another point of confusion exists in the way the FAR Council’s contract clause for agencies is written. The clause states that the mandate must flow down to subcontracts “for services,” Richard said. And while it would be reasonable to take the position that means only subcontracts that are primarily for services, that doesn’t necessarily mean agencies won’t try to apply it to contracts primarily for products with ancillary services included.

The full article, “6 Key Questions for Contractors on the Vaccine Mandate,” was published on November 3 by Law360 and is available online.

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