Federal Contractor Vaccination Mandate and Change Orders – Watch Out!

Nexsen Pruet – President Biden’s September 9, 2021 Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, generally requires that all employees of federal contractors and subcontractors of any tier working under a federal contract be vaccinated.  While this Executive Order applies to “new” federal contracts, it may also apply to any bilateral modifications (change orders) to existing contracts.  On September 30, 2021, the Federal Procurement Office issued a FAR Deviation Clause which requires that the Executive Order and subsequent Federal guidance regarding the Executive Order be included in all contracts and subcontracts on federal projects.   With all of the different vaccine mandates, lawsuits, and court rulings, it is difficult to keep up with what is currently required of contractors and subcontractors performing work on federal projects.  Even enforcement of this Executive Order was recently enjoined in three states.  Without regard to what happens in court or politics, contractors and subcontractors on federal projects may perhaps unwittingly agree to the incorporation of this FAR into existing contracts via a change order.  Contracting officers are being encouraged to implement this FAR into all federal contracts.