[Federal Register Volume 86, Number 175 (Tuesday, September 14, 2021)]
[Presidential Documents]
[Pages 50985-50988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19924]


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  Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / 
Presidential Documents  

[[Page 50985]]


                Executive Order 14042 of September 9, 2021

                
Ensuring Adequate COVID Safety Protocols for 
                Federal Contractors

                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 
                performing 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 
                subcontractors at sites where they are performing work 
                for the Federal Government. Accordingly, ensuring that 
                Federal contractors and subcontractors are adequately 
                protected from COVID-19 will bolster economy and 
                efficiency in Federal procurement.

                Sec. 2. Providing for Adequate COVID-19 Safety 
                Protocols for Federal Contractors and Subcontractors. 
                (a) Executive departments and agencies, including 
                independent establishments subject to the Federal 
                Property and Administrative 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 subcontracts. 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 Workforce 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 definitions of 
                relevant terms for contractors and subcontractors, 
                explanations of protocols required of contractors and 
                subcontractors to comply with workplace 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 Guidance developed 
                pursuant to subsection (b) of this section, the 
                Director shall, as an exercise of the delegation of my 
                authority under the Federal Property

[[Page 50986]]

                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 
                affirmative 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 
                protocols 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 instrument'' 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 Regulatory Council, to the extent permitted 
                by law, shall amend the Federal Acquisition Regulation 
                to provide for inclusion in Federal procurement 
                solicitations 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 
                implement 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 
                instrument; 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;

[[Page 50987]]

(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 instrument, 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 contract-like instruments are consistent 
                with the requirements specified in section 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.

[[Page 50988]]

                    (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.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    September 9, 2021.

[FR Doc. 2021-19924
Filed 9-13-21; 8:45 am]
Billing code 3295-F1-P