Ensuring Adequate COVID Safety Protocols for Federal Contractors

CourtExecutive Office Of The President
Citation86 FR 50985
Record Number2021-19924
Publication Date14 Sep 2021
Presidential Documents
50985
Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Presidential Documents
Executive Order 14042 of September 9, 2021
Ensuring Adequate COVID Safety Protocols for Federal Con-
tractors
By the authority vested in me as President by the Constitution and the
laws of the United States of America, including the Federal Property and
Administrative Services Act, 40 U.S.C. 101 et seq., and section 301 of
title 3, United States Code, and in order to promote economy and efficiency
in procurement by contracting with sources that provide adequate COVID–
19 safeguards for their workforce, it is hereby ordered as follows:
Section 1. Policy. This order promotes economy and efficiency in Federal
procurement by ensuring that the parties that contract with the Federal
Government provide adequate COVID–19 safeguards to their workers per-
forming on or in connection with a Federal Government contract or contract-
like instrument as described in section 5(a) of this order. These safeguards
will decrease the spread of COVID–19, which will decrease worker absence,
reduce labor costs, and improve the efficiency of contractors and subcontrac-
tors at sites where they are performing work for the Federal Government.
Accordingly, ensuring that Federal contractors and subcontractors are ade-
quately protected from COVID–19 will bolster economy and efficiency in
Federal procurement.
Sec. 2. Providing for Adequate COVID–19 Safety Protocols for Federal Con-
tractors and Subcontractors. (a) Executive departments and agencies, includ-
ing independent establishments subject to the Federal Property and Adminis-
trative Services Act, 40 U.S.C. 102(4)(A) (agencies), shall, to the extent
permitted by law, ensure that contracts and contract-like instruments (as
described in section 5(a) of this order) include a clause that the contractor
and any subcontractors (at any tier) shall incorporate into lower-tier sub-
contracts. This clause shall specify that the contractor or subcontractor shall,
for the duration of the contract, comply with all guidance for contractor
or subcontractor workplace locations published by the Safer Federal Work-
force Task Force (Task Force Guidance or Guidance), provided that the
Director of the Office of Management and Budget (Director) approves the
Task Force Guidance and determines that the Guidance, if adhered to by
contractors or subcontractors, will promote economy and efficiency in Federal
contracting. This clause shall apply to any workplace locations (as specified
by the Task Force Guidance) in which an individual is working on or
in connection with a Federal Government contract or contract-like instrument
(as described in section 5(a) of this order).
(b) By September 24, 2021, the Safer Federal Workforce Task Force (Task
Force) shall, as part of its issuance of Task Force Guidance, provide defini-
tions of relevant terms for contractors and subcontractors, explanations of
protocols required of contractors and subcontractors to comply with work-
place safety guidance, and any exceptions to Task Force Guidance that
apply to contractor and subcontractor workplace locations and individuals
in those locations working on or in connection with a Federal Government
contract or contract-like instrument (as described in section 5(a) of this
order).
(c) Prior to the Task Force publishing new Guidance related to COVID–
19 for contractor or subcontractor workplace locations, including the Guid-
ance developed pursuant to subsection (b) of this section, the Director shall,
as an exercise of the delegation of my authority under the Federal Property
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and Administrative Services Act, see 3 U.S.C. 301, determine whether such
Guidance will promote economy and efficiency in Federal contracting if
adhered to by Government contractors and subcontractors. Upon an affirma-
tive determination by the Director, the Director’s approval of the Guidance,
and subsequent issuance of such Guidance by the Task Force, contractors
and subcontractors working on or in connection with a Federal Government
contract or contract-like instrument (as described in section 5(a) of this
order), shall adhere to the requirements of the newly published Guidance,
in accordance with the clause described in subsection (a) of this section.
The Director shall publish such determination in the Federal Register.
(d) Nothing in this order shall excuse noncompliance with any applicable
State law or municipal ordinance establishing more protective safety proto-
cols than those established under this order or with any more protective
Federal law, regulation, or agency instructions for contractor or subcontractor
employees working at a Federal building or a federally controlled workplace.
(e) For purposes of this order, the term ‘‘contract or contract-like instru-
ment’’ shall have the meaning set forth in the Department of Labor’s proposed
rule, ‘‘Increasing the Minimum Wage for Federal Contractors,’’ 86 FR 38816,
38887 (July 22, 2021). If the Department of Labor issues a final rule relating
to that proposed rule, that term shall have the meaning set forth in that
final rule.
Sec. 3. Regulations and Implementation. (a) The Federal Acquisition Regu-
latory Council, to the extent permitted by law, shall amend the Federal
Acquisition Regulation to provide for inclusion in Federal procurement solici-
tations and contracts subject to this order the clause described in section
2(a) of this order, and shall, by October 8, 2021, take initial steps to imple-
ment appropriate policy direction to acquisition offices for use of the clause
by recommending that agencies exercise their authority under subpart 1.4
of the Federal Acquisition Regulation.
(b) By October 8, 2021, agencies shall take steps, to the extent permitted
by law, to exercise any applicable authority to ensure that contracts and
contract-like instruments as described in section 5(a) of this order that
are not subject to the Federal Acquisition Regulation and that are entered
into on or after October 15, 2021, consistent with the effective date of
such agency action, include the clause described in section 2(a) of this
order.
Sec. 4. Severability. If any provision of this order, or the application of
any provision of this order to any person or circumstance, is held to be
invalid, the remainder of this order and its application to any other person
or circumstance shall not be affected thereby.
Sec. 5. Applicability. (a) This order shall apply to any new contract; new
contract-like instrument; new solicitation for a contract or contract-like instru-
ment; extension or renewal of an existing contract or contract-like instrument;
and exercise of an option on an existing contract or contract-like instrument,
if:
(i) it is a procurement contract or contract-like instrument for services,
construction, or a leasehold interest in real property;
(ii) it is a contract or contract-like instrument for services covered by
the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii) it is a contract or contract-like instrument for concessions, including
any concessions contract excluded by Department of Labor regulations
at 29 CFR 4.133(b); or
(iv) it is a contract or contract-like instrument entered into with the
Federal Government in connection with Federal property or lands and
related to offering services for Federal employees, their dependents, or
the general public;
(b) This order shall not apply to:
(i) grants;
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(ii) contracts, contract-like instruments, or agreements with Indian Tribes
under the Indian Self-Determination and Education Assistance Act (Public
Law 93–638), as amended;
(iii) contracts or subcontracts whose value is equal to or less than the
simplified acquisition threshold, as that term is defined in section 2.101
of the Federal Acquisition Regulation;
(iv) employees who perform work outside the United States or its outlying
areas, as those terms are defined in section 2.101 of the Federal Acquisition
Regulation; or
(v) subcontracts solely for the provision of products.
Sec. 6. Effective Date. (a) Except as provided in subsection (b) of this
section, this order is effective immediately and shall apply to new contracts;
new contract-like instruments; new solicitations for contracts or contract-
like instruments; extensions or renewals of existing contracts or contract-
like instruments; and exercises of options on existing contracts or contract-
like instruments, as described in section 5(a) of this order, where the relevant
contract or contract-like instrument will be entered into, the relevant contract
or contract-like instrument will be extended or renewed, or the relevant
option will be exercised, on or after:
(i) October 15, 2021, consistent with the effective date for the action
taken by the Federal Acquisition Regulatory Council pursuant to section
3(a) of this order; or
(ii) for contracts and contract-like instruments that are not subject to
the Federal Acquisition Regulation and where an agency action is taken
pursuant to section 3(b) of this order, October 15, 2021, consistent with
the effective date for such action.
(b) As an exception to subsection (a) of this section, where agencies
have issued a solicitation before the effective date for the relevant action
taken pursuant to section 3 of this order and entered into a new contract
or contract-like instrument resulting from such solicitation within 30 days
of such effective date, such agencies are strongly encouraged to ensure
that the safety protocols specified in section 2 of this order are applied
in the new contract or contract-like instrument. But if that contract or
contract-like instrument term is subsequently extended or renewed, or an
option is subsequently exercised under that contract or contract-like instru-
ment, the safety protocols specified in section 2 of this order shall apply
to that extension, renewal, or option.
(c) For all existing contracts and contract-like instruments, solicitations
issued between the date of this order and the effective dates set forth
in this section, and contracts and contract-like instruments entered into
between the date of this order and the effective dates set forth in this
section, agencies are strongly encouraged, to the extent permitted by law,
to ensure that the safety protocols required under those contracts and con-
tract-like instruments are consistent with the requirements specified in sec-
tion 2 of this order.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
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(c) This order is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
THE WHITE HOUSE,
September 9, 2021.
[FR Doc. 2021–19924
Filed 9–13–21; 8:45 am]
Billing code 3295–F1–P
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