As we reported here, on September 9, 2021, President Biden issued Executive Order (EO) 14042 titled Ensuring Adequate COVID Safety Protocols for Federal Contractors, which requires the inclusion of a clause in certain contract and contract-like instruments mandating compliance "with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force[.]"
While the order explicitly omits grants from its applicability, the order uses similar language as both President Biden's Executive Order 14026, which seeks to increase the minimum wage for federal contractors, as well as former President Obama's Executive Order 13658, that established minimum wages for federal contractors. These minimum wage EOs, like the most recent order mandating vaccination, specifically omit grants, but include cooperative agreements by implementing rules and guidance. See, e.g., 29 C.F.R. § 10.2. Similarly, the Task Force's September 24, 2021 guidance on the COVID-19 Executive Order (which Venable covered here) explicitly lists cooperative agreements as a potentially covered contract. Given that grants and cooperative agreements are governed by the same set of regulations (2 C.F.R. Part 200), the distinction is notable and will likely cover many nonprofits and grant recipients because their "grants" may in fact be a cooperative agreement.
However, if the past serves as a guide to the future, we may look back to the implementation of the Obama-era EO. There, in the preamble to the 2014 rule implementing this minimum wage EO, the government confirmed that cooperative agreements are treated the same way as other contracts, but in a manner that may limit applicability to service-type efforts:
The Department noted that the mere fact that a legal instrument constitutes a contract under this definition does not mean that the contract is subject to the Executive Order. The NPRM explained that, in order for a contract to be covered by the Executive Order and the proposed rule, the contract must qualify as one of the specifically enumerated types of contracts set forth in section 7(d) of the Order and proposed § 10.3. For example, although a cooperative agreement would be considered a contract pursuant to the Department's proposed definition, a cooperative agreement would not be covered by the Executive Order and this part unless it was subject to the [Davis Bacon Act] or [Service Contract Act], was a concessions contract, or was entered into "in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public." 79 FR 9853. In other words, the NPRM explained that this part would not apply to cooperative agreements that did not involve providing services for Federal employees, their dependents, or the general public.
79 Fed. Reg. 60634, 60638 (Oct. 7, 2014) (emphasis added).
The net result is that if the new COVID-19 clause implementing the vaccine mandate covers the same contracts as the prior minimum wage EOs, the new COVID-19 clause would not apply to cooperative agreements for services that are not subject to the Service Contract Labor Standards (formerly the Service Contract Act).
Consequently, we advise recipients and subrecipients of cooperative agreements to review the summary of the Task Force's guidance, available here, to understand their COVID-19-related compliance obligations, and to monitor the implementation of regulations that are currently scheduled for release on October 8, 2021. We will of course continue to monitor developments under the COVID-19 Executive Order and its ramifications for contractors and recipients of federal funds alike.