Obtaining relief for delays caused by the Government’s COVID-19 vaccination and testing policy

A few weeks ago, the government announced that it would impose new COVID-related requirements on onsite federal contractors. Specifically, onsite contractors must attest to their vaccination status. Those not fully vaccinated must wear mask, physically distance from others, and comply with a weekly or twice weekly testing requirement.

At the same time, the new Safer Federal Workforce Task Force issued “model safety principles” that articulate similar requirements, including the following:

• Fully vaccinated Federal employees and onsite contractors do not need to physically distance or participate in weekly screening testing, and are not subject to any Government-wide restrictions on official travel (although agency travel policies still apply). In areas of high or substantial transmission, they need to wear a mask in public indoor settings in Federal buildings. In areas of low or moderate transmission, they do not need to wear a mask.
• Those Federal employees and onsite contractors who are not fully vaccinated or decline to provide their vaccination status must wear a mask, physically distance, and comply with a weekly or twice-weekly screening testing requirement, and are subject to Government-wide restrictions on official travel.

For an onsite contractor, these new requirements could put a strain on performance. For example, what if a contractor cannot find enough vaccinated personnel to staff a contract? Or what if vaccinating its workforce takes considerable time out of contract performance? And for those unvaccinated employees: what if the testing regimen delays the contractor’s performance?

These are good questions, and they raise the ultimate question of whether a contractor can obtain contractual relief for delays caused by these new Government rules. Though we can’t guarantee what an agency will do in a specific situation, here are some possible tools to leverage when seeking relief from the delays caused by these new requirements.

• FAR 52.249-10 (Default) and FAR 52.249-14 (Excusable Delays). Under these clauses, a contracting officer should extend the delivery schedule for performance failures that are beyond the contractor’s control. Specific examples of such causes are “epidemics,” “quarantine restrictions,” and “acts of the Government in either its sovereign or contractual capacity.” So, it’s possible that delays to vaccinate employees or to get them tested regularly qualify as an excusable delay. That said, the excusable delay clause only allows for an extension of the performance period, not additional compensation.
• The model safety principles also urge agencies to address how the outlined protocols apply to contractor employees. It’s possible that agencies have already established protocols that streamline contract adjustments to address the new vaccination requirements. If an agency’s safety protocols are not publicly available, talk with your contracting officer.
• Ever since the pandemic began, the Government has urged agencies to be flexible in adjusting contract deadlines. That same spirit should influence agencies as delays arise from vaccinations and testing.

In any event, be sure that you follow best practices when encountering delays. For example, keep meticulous records about all delays caused by vaccinations and testing. At the same time, inform the contracting officer about any delays and raise early the possibility of an extension. And ensure that vaccination/testing delays are don’t simultaneously occur with a non-excusable delay.

If you have any questions about relating to excusable delays or other government contracting issues, give us a call at 913-354-2630.