Special Notice Regarding Temporary Nationwide Preliminary Injunction of Executive Order 14042

Special Notice Regarding Temporary Nationwide Preliminary Injunction of Executive Order 14042

Description:

This is a Special Notice to all contractors and subcontractors at any tier that were awarded a contract by Fiscal Service on behalf of one of the following customer agencies:

The Privacy and Civil Liberties Commission
Chemical Safety & Hazard Investigation Board
Inter-American Foundation
National Mediation Board
Access Board
Consumer Product Safety Commission
DENALI Commission
Gulf Coast Eco Restoration Council
Election Assistance Commission
Armed Forces Retirement Home
African Development Foundation
Office of Government Ethics
Federal Housing Finance Agency Office of the Inspector General

This Special Notice provides an update on the implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.

Certain courts have preliminarily enjoined implementation of provisions of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  A current list of states and outlying areas in which implementation of Executive Order is enjoined (“Excluded States and Outlying Areas”) is maintained at https://www.saferfederalworkforce.gov/contractors/.   

Guidance issued by the Safer Federal Workforce Task Force defines a covered contract as “any contract or contract-like instrument that includes the FAR clause described in Section 2 (a) of the order.”  See Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontracts, Updated November 10, 2021.  Effective immediately, the Bureau of Fiscal Service, on behalf of the customer agencies listed above, is taking the action stated below to ensure compliance with currently applicable court orders. 

For existing contracts and contract-like instruments (hereinafter “contracts”) as defined by the Safer Federal Workforce Task Force (hereinafter “Task Force”), including extensions and renewals, that contain a clause implementing requirements of Executive Order 14042:

With respect to any contract clause implementing requirements of Executive Order 14042:

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 and subcontractor 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 https://www.saferfederalworkforce.gov/contractors/.

For existing contracts, including extensions and renewals, that do not contain a clause implementing requirements of Executive Order 14042:

The Bureau of the Fiscal Service, on behalf of the customer agencies listed above, will not seek to add a clause implementing requirements of the Executive Order into a contract where the place of performance is exclusively within an Excluded State or Outlying Area. 

For existing solicitations, including solicitations for new orders to be issued under existing indefinite delivery/indefinite quantity contracts:

Solicitations that indicate that work under the resulting contract to be awarded will be performed entirely in an Excluded State or Outlying Area will not include a clause implementing requirements of Executive Order 14042.  If such a solicitation already includes such a clause, the Bureau of the Fiscal Service, on behalf of the customer agencies listed above, will remove it through an amendment to the solicitation.

For all other solicitations to which Executive Order 14042 applies, The Bureau of the Fiscal Service, on behalf of the above customer agencies, will include a clause implementing requirements of the Executive Order and a provision stating as follows:

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 and subcontractor 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 https://www.saferfederalworkforce.gov/contractors/.

The Bureau of Fiscal Service’s Division of Procurement Services will amend this Special Notice, as deemed appropriate.

Questions regarding this Special Notice shall be directed to the Contracting Officer on your contract.