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2021-09-30 07:00 by Karl Denninger
in Editorial , 30334 references Ignore this thread
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The much-screamed about federal "contractor" guidance is out.  It does not say what Biden said it says.  Once again, the petulant 2-year old in diaper (literally, Depends) is lying and trying to scare you. 

Here it is:

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.

Yeah, ok, and this is news?  A contract is a contract.  But, as you will soon see, a contract is a contract and that's a problem for Biden and his pissy little temper tantrum -- and the government admits it right on page 5:

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

And there it is folks.

Most contracts are for a term, negotiated in writing.  Indeed, if performance is to stretch over a period of one year or more there is this nice little thing called "The Statute of Frauds" (which doesn't actually cover fraud) that mandates that the contract be in writing to be enforceable.  Therefore all the contracting parties with the federal government, where performance will meet or exceed one year, do indeed negotiate same in writing and sign off on it.  That's because they're not stupid.

If a contract has options to extend then you have a contract with the ability to make it longer.  For example, let's say I have one that is a one-year contract with the option to extend for additional one year periods up to five years.  Fine and well, except that when you exercise that option you can't change the terms unless they're mutually re-renegotiated.

What this document says is that when such options exist the government shall do that -- in other words they shall renegotiate to include said term (you must be fully vaccinated.)  That's perfectly legal but doing so means the contractor can refuse and/or reopen negotiations -- say, on price or other terms.

Note that since this document provides burdens to the covered contractor you can bet the price will go up.  Not only is record-keeping involved workplace "social distancing" and masking is involved too along with a demand for compliance officer(s) to be employed.  These are real costs and, in some cases, fairly-extreme costs.

Covered contractors shall designate a person or persons to coordinate implementation of and compliance with this Guidance and the workplace safety protocols detailed herein at covered contractor workplaces.

They will be immediately met with demands for more money and snarl the supply chain to the government, since they're now a demand for every contracting entity.  Good -- maybe Mordor and its various agencies will get ratfucked by the inability to secure at a reasonable price, or even at all, the goods and services it wants to buy.

What's even worse for the government is that the way they're going to word this requirement (which isn't yet released), according to Q16, those will become part of existing agreements entered into after November.  Yes, you can do that in a contract; explicitly agree that one side or the other can change terms in various ways -- in this case, for whatever the Government decides are "Covid" reasons.  But since that set of requirements which may be imposed on the contractor is unknown as to both scope and cost (in other words the contractor cannot price it with any sort of precision) you can bet it's going to trigger very large adjustment demands from the contracting firms.

VERY large.


Note that in the FAQ Q12 it specifically addresses what's obvious: You cannot unilaterally change the terms of a contract so these requirements cannot be, and are not, imposed until the option period comes up -- which triggers renegotiation -- or, for a new contract, when it is awarded.

Further, Biden's administration has figured out that attempting to run this all the way down the supply chain to products and those incorporated in others is likely to result in an erected middle finger and the collapse of the government's procurement process, and so they didn't do that.  Read Q13.

Good luck you demented asshole; you're going to need it.

And no, if you work for a contractor or are one, you're not required to be vaccinated in November.  The Government hasn't even issued the actual rule yet, nor its language.  But when it does issue contracts that are extended, optioned or newly-drafted after that date must include it.  Fine.  Your price should reflect their stupidity and may it cause the Feral Fuckface-In-Dementia to CHOKE.