Page 19 - COVID Executive Order Survival Guide Brochure

Thus, it appears the only service contractor employees not within the reach of the Guidance are those working directly and exclusively for commercial customers (who do not flowdown the clause) and who do not visit any company facilities that Covered Employees visit. It’s likely many contractors can count the members of this group on one hand. To understand why, consider this: if you’re an in-house counsel or HR representative at a company with covered contracts and you are responsible for periodically visiting your company facilities nationwide, all employees at all of those facilities will be covered under this rule because you work “in connection with” covered contracts.
If I Have Both “Covered Contractor Workplaces” And Non-Covered Contractor
Workplaces, What Requirements Do I Need To Implement In My Non-Covered Workplaces?
If you have100 or more employees, your non-covered workplaces (while not subject to the EO requirements) are subject to the requirements of the OSHA rule (again, assuming it survives legal challenges). Broadly, the OSHA rule requires employers to ensure that by January 4, 2022, all of their employees either (1) have received their final vaccine dose, or (2) provide proof of a negative COVID test on at least a weekly basis and wear a face mask while in the workplace. The requirements of the OSHA rule differ in many respects from the requirements of EO 14042. We’ve put together a chart comparing the requirements of both rules in the Appendix at the end of this Guide.
The OSHA rule does not yet reach employers with fewer than 100 employees. So, for now, there are no specific federal requirements for non-covered contractor workplaces for contractors with fewer than 100 employees. However, OSHA currently is accepting comments on whether the rule should be expanded to apply to smaller employers. So, it is possible this could change
Does The Rule Flow Down To Subcontractors?
Yes. The EO makes clear the clause will flow down to subs at every tier, except “subcontracts solely for the provision of products.” Accordingly, we should expect to see the new clause added to the list of “mandatory flowdowns” identified in FAR 52.212-5(e) and FAR 52.244-6. This means that prime contractors will have to dust off their standard flowdown provisions, self-certifications, subcontracts, and vendor agreements to add a new provision.
Consistent with the EO, the Guidance clarifies the prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.
How Do I Know The Value Of A Subcontract To Figure Out Whether
It Is Below The Simplified Acquisition Threshold For Flow-Down Purposes?
Let’s tackle the easy part of the question first. If the subcontract has a stated value, you use that stated value, including all option periods. We know, however, that some subcontracts do not have firm values at the outset. For example, IDIQ subcontracts often have only caps. In those cases, the safest approach is to consider the total anticipated value of the award, again, including option periods. This is how it is done in other areas of federal contracting. For example, in the Country of Origin context, when one is trying to value an IDIQ contact to determine the application of the Trade Agreements Act or the Buy American Act, one looks to the total estimated value of the project, including options. Likewise, when considering the value of a task order for purposes of determining bid protest jurisdiction, one again looks to the total value of the award, including options. Accordingly, while the EO provides no firm guidance on this issue, we think it’s a good practice to consider the total anticipated value of a subcontract for purposes of evaluating the SAT flow down exception. (If you want to see the case law supporting this interpretation, check out the Tic-La-Dex case or the Goldbelt Glacier Health case.)
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EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 19