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Acquisition Flash! 22-10

What's Changed?

Pause in Enforcement of Executive Order 14042 Requirements

Purpose: The purpose of this Acquisition Flash is to notify the VA acquisition community that enforcement of Executive Order 14042 is currently paused by the Office of Management of Budget (OMB).

Affected FAR/VAAR Parts: FAR 52.223-99.

Effective Date: December 10, 2021

Background: On November 30, 2021, a Federal district court temporarily enjoined implementation of provisions of Executive Order 14042 in three states. On December 1, 2021, the Office of Management and Budget (OMB) issued initial guidance on implementing requirements of Executive Order 14042 while ensuring compliance with a court order covering the States of Kentucky, Ohio, and Tennessee. The OMB guidance to agencies for actions that must be taken to ensure compliance with that court order is below:

The Department of Justice is currently reviewing the court order to determine its scope and to decide on next steps in the ongoing litigation. In time, as the litigation continues and agencies implement the court order, additional or amended guidance may be issued to address new legal developments, resolve logistical difficulties, or mitigate disruption to the procurement process. In the meantime, pending further direction, agencies must follow this preliminary guidance to ensure compliance with the court order.

For existing contracts and contract-like instruments (hereinafter “contracts”), including extensions and renewals, that are performed at least in part in Kentucky, Ohio, and/or Tennessee:

  • If the contract includes a clause requiring compliance with guidance issued by the Safer Federal Workforce Task Force (“Task Force guidance”), the VA must take no action to enforce that clause and should inform the contractor that the clause will not be enforced absent further notice from the VA.
  • If the contract or order does not include a clause requiring compliance with Task Force guidance, the VA must refrain from attempting to insert such a clause into the document. The agency should not ask that the contractor voluntarily agree to the insertion of such a clause.

For existing solicitations for services that may be performed at least in part in Kentucky, Ohio, and/or Tennessee:

  • If the solicitation includes a provision that would require compliance with Task Force guidance, the VA shall issue a solicitation amendment either removing that provision or providing that the provision would not be enforced in contracts subject to the court order. The VA should comply with all applicable legal requirements for full and open competition.
  • If the solicitation contains no clause requiring compliance with Task Force guidance, the VA shall not seek to add one, unless it provides that the provision would not be enforced in contracts subject to the court order.

For future solicitations, contracts, and orders that may be performed at least in part in Kentucky, Ohio, and/or Tennessee:

  • Absent further direction from OMB, VA shall not include a clause requiring compliance with Task Force guidance in new solicitations, contracts, or orders, including extensions or renewals, that may be performed at least in part in Kentucky, Ohio, and/or Tennessee, unless the clause provides that it would not be enforced in contracts or orders subject to the court order. In some cases, VA may be unable to determine in advance whether work under a given solicitation will be performed in any of those states. In those cases, the solicitation must not include a clause requiring compliance with Task Force guidance, unless the clause provides that it would not be enforced in contracts or orders subject to the court order.

For existing and future contracts and orders, including extensions and renewals, that are known to be performed entirely outside of Kentucky, Ohio, and/or Tennessee:

  • No change in approach is required. The court order applies to contracts that are performed at least in part in Kentucky, Ohio, or Tennessee. If contracting officers or other cognizant VA personnel are unsure whether performance on a given contract takes place at least in part in one of those three states, they should immediately request that information from the contractor. If still in doubt, they should treat the contract as if it is being performed at least in part in Kentucky, Ohio, and/or Tennessee, and follow the guidance above.

All federal agencies must adhere to this guidance to ensure that the Government meets its legal obligations.

On December 8, 2021, another court order was issued resulting in a nationwide injunction - an order that bars enforcement of Executive Order 14042 in any state or outlying area of the United States. Both court orders are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation. Given the uncertainty surrounding the court orders, the Executive Order 14042, VA Acquisition Policy Flash! 22-02 and 22-05 are hereby paused until further guidance is issued by OMB.

Please note that the court orders only apply to the application of requirements pursuant to Executive Order 14042. There is no change to the Safer Federal Workforce Task Force’s guidance for COVID-19 workplace safety protocols for Federal agencies. Federal agency workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Contractor employees working onsite in those facilities must still follow those Federal agency workplace safety protocols.

Applicability: This Acquisition Flash 22-10 applies to all VA acquisition solicitations and/or contracts previously covered by the requirements of Executive Order 14042, per guidance provided by the OMB on December 9, 2021.

Action Required: Contracting Officers shall follow the instructions provided below to ensure compliance with currently applicable court orders.

For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042:

Agencies shall notify the contractor of the following:

i. The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. A current list of such Excluded States and Outlying Areas is maintained at Safer Federal Workforce for Federal Contractors.

Agencies may provide the above notification, as well as any other contractor notification required by this guidance, by posting the necessary information in a centralized location monitored by contractors, such as System for Award Management. The Office of Acquisition and Logistics will post this information for the VA.

II. For existing contracts that do not include a clause implementing requirements of Executive Order 14042:

a. If the work under such a contract is performed entirely in an Excluded State or Outlying Area, the agency must not attempt to add a clause implementing requirements of the Executive Order into the contract.

b. For all other contracts to which the Executive Order applies, when exercising an option, issuing a new order under the contract, or extending the term of the contract, the agency must pursue bilateral modification of the contract to include the clause. If the agency is not exercising an option, issuing a new order, or extending the contract’s term, the agency may pursue bilateral modification to include the clause. In either case, when requesting that a contractor agree to the addition of the clause, the agency must inform the contractor of the following:

i. The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. A current list of such Excluded States and Outlying Areas is maintained at Safer Federal Workforce for Federal Contractors.

III. For solicitations (existing or future), including solicitations for new orders to be issued under existing indefinite delivery/indefinite quantity contracts not containing a clause that implements requirements of Executive Order 14042:

a. If the solicitation indicates that work under the contract to be awarded will be performed entirely in an Excluded State or Outlying Area, the solicitation should not include a clause implementing requirements of Executive Order 14042. If the solicitation does include such a clause, the agency must remove it through an amendment to the solicitation.

b. For all other solicitations to which Executive Order 14042 applies, the agency must include a clause implementing requirements of the Executive Order and a provision stating as follows:

i. The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. A current list of such Excluded States and Outlying Areas is maintained at Safer Federal Workforce for Federal Contractors.

c. If an existing solicitation to which Executive Order 14042 applies does not contain both the implementing clause and the provision described above, the agency must amend the solicitation to add those terms.

Additional Information: Direct any questions or comments regarding this Acquisition Flash to the Procurement Guidance and Instruction Service (PGIS) via email at VAPGISMailbox@va.gov.

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