Government Contracts Proposed FAR Rule Creates Mexico City Policy Anti-Abortion Clause
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Tuesday, October 6, 2020

Proposed FAR Rule Creates Mexico City Policy Anti-Abortion Clause

By Government Contracts Editorial Staff

A proposed rule would amend the Federal Acquisition Regulation to implement the Protecting Life in Global Health Assistance policy issued in connection with the January 23, 2017, Presidential Memorandum Regarding the Mexico City Policy. The MCP, first issued in 1984, required foreign nongovernmental organizations to agree, as a condition of receiving Agency for International Development family planning assistance, to refrain from performing or actively promoting abortion as a method of family planning with any source of funds. To extend the MCP, as reinstated in 2017, the Secretary of State approved the PLGHA plan. The plan extended the MCP to all affected federal agencies and all global health assistance, and it required the extension of the MCP to contracts. The PLGHA policy applies to all agencies receiving global health assistance funding, including AID and the Departments of State, Health and Human Services, and Defense. The PLGHA implementation plan directs agencies to take appropriate steps to apply the policy to new contracts, and the plan would apply to existing contracts, to the extent practicable, when modified to add funding.

Contract Clause. The rule would add the new requirements in FAR Part 25 and in a new contract clause, Protecting Life in Global Health Assistance, which would be used in contracts and subcontracts funded partially or wholly with global health assistance funding. U.S. contractors are not themselves subject to the PLGHA policy. However, under the clause, U.S. contractors and subcontractors at any tier may not subcontract for global health assistance with a foreign contractor unless the subcontractor agrees to not perform or actively promote abortion as a method of family planning outside the U.S. or provide financial support to any other foreign NGO that conducts such activities. A similar prohibition applies to foreign contractors. The contractor or subcontractor is not required to impose these requirements on foreign NGOs that are not receiving a subcontract and are only the beneficiaries of the training or technical assistance provided by the contractor or subcontractor. If the contract requires government consent to subcontract, the rule would require the contractor to describe the due diligence it performed for the PLGHA requirements. Finally, the proposed rule sets forth specific requirements for responding to violations, including use of the termination clause. Submit comments referencing FAR Case 2018-002 by November 13, 2020, For the text of the rule, see ¶70,006.358.

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