Ambiguities in a solicitation or contract have long been one of the greatest traps for unwary contractors. At the solicitation phase, a failure to identify a “patent” (i.e., obvious) ambiguity often results in the contractor losing the competition with no viable bid protest challenge. This is because such ambiguities are construed in the agency’s favor. A contractor seeking to recover added costs based upon an ambiguous contract term will be unable to recover such costs if the ambiguity is “patent” and the Government disagrees with the contractor’s interpretation.
Traditional Test for Patent vs. Latent Ambiguities
So how does one distinguish between “patent” and “latent” ambiguities? Numerous Federal Circuit authorities tell us that a patent ambiguity arises where there is “an obvious omission, inconsistency or discrepancy of significance” that “could have been discovered by reasonable and customary care.” E.g., Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312-13 (Fed. Cir. 2016) (internal quotations omitted). By contrast, a latent ambiguity is a “hidden or concealed defect which is not apparent on the face of the document, could not be discovered by reasonable and customary care, and is not so patent and glaring as to impose an affirmative duty on plaintiff to seek clarification.” Id. (internal quotations omitted).
Stephanie was joined for her one-hour session by co-presenter Amy Conant Hoang, a partner at K&L Gates LLP.
Additional topics covered at this year’s conference include:
Converging Procurement Systems
International Public Procurement Law: Key Developments 2021
Export Controls, Economic Sanctions, Anti-Corruption and CFIUS: Compliance and National Security Concerns
Statutes & Regulations
Bidding & Negotiation
Cost & Pricing Issues
Bid Protest Overview
Intellectual Property in Government Contracts
Emerging Policy & Practice Issues
Fraud, Debarment & Suspension
Cybersecurity for Government Contractors
Commercial Item Contracting
Accounting & Compliance
Labor & Employment
A copy of the full event agenda is available here.
Blank Rome LLP was pleased to once again serve as a sponsor for this leading industry event hosted by Thomson Reuters, which brings together hundreds of leading attorneys, executives, and government officials for high-level, expert briefings on the past year’s legal developments affecting government contracts. Each registrant received a PDF download copy of the conference briefs, which include a detailed outline and discussion of the topics addressed at the conference.
Lawsuits challenging the Biden Administration’s many vaccine mandates have changed the compliance landscape over the last few months. This post summarizes the current status of the four major mandates:
Occupational Safety and Health Administration (“OSHA”) mandate;
Healthcare Worker mandate;
Federal Employee mandate; and
Federal Contractor mandate.
Spoiler alert: The Federal Contractor mandate–which has caused the most significant confusion for Government contractors since its issuance–still does.
1. OSHA Mandate
OSHA’s Emergency Temporary Standard (“ETS”) required that all employees of employers with 100 or more employees either be fully vaccinated or wear a mask and submit to weekly COVID‑19 testing. On January 13, 2022, the Supreme Court upheld a preliminary injunction of the OSHA mandate, finding that it likely exceeded OSHA’s authority.
Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).
Yesterday the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against enforcement of Executive Order (“EO”) 14042, under which prime contractors and subcontractors are required to ensure that all of their employees working “on or in connection with” covered federal contracts are fully vaccinated against COVID-19 (“Vaccine Mandate”). The order was issued in a lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; governors of several of those states; and various state agencies that challenged the Biden Administration’s authority to issue the Vaccine Mandate. In its decision, State of Georgia, et. al. v. Biden, No. 1:21-cv-163, the court agreed with the plaintiffs’ argument that the Administration improperly relied on the Federal Property and Administrative Services Act (“FPASA”) to issue the Vaccine Mandate, concluding that the FPASA’s authorization for the President to impose policies to promote economy and efficiency in procurement did not extend to polices focused primarily on public health.
Blank Rome LLP and the National Defense Industrial Association (“NDIA”) Delaware Valley Chapter are pleased to present this new live webinar on Monday, December 6, 2021, from 12:00 to 1:00 p.m. EST.
The rules and guidance around the federal contractor COVID-19 vaccine mandate are changing by the day. Please join Blank Rome’s Government Contracts and Labor & Employment attorneys for timely analysis of what federal contractors need to be prepared, including an in-depth discussion of:
Latest guidance: What do prime contractors need to know to comply?
Which of my employees are covered by the mandate?
Does the mandate apply to subcontractors?
How do I deal with exemption requests?
What should I do if my workforce is not fully vaccinated?
Brian S. Gocial, Partner, Government Contracts, Blank Rome LLP, and Partner and Member of the Board, NDIA Delaware Valley Chapter
The National Defense Industrial Association drives strategic dialogue in national security by identifying key issues and leveraging the knowledge and experience of its military, government, industry, and academic members to address them. You can learn more about them on their website.
QUESTIONS? Please contact Alena Leon, Business Development Consultant.
Earlier today, November 4, 2021, the White House issued a fact sheet addressing its vaccination policies, including the government contractor mandate under EO 14042. Three key points stand out: (1) the compliance deadline for “full vaccination” status will be extended from December 8, 2021, to January 4, 2022; (2) the Occupational Safety and Health Administration (“OSHA”) vaccine rule for larger employers (which may permit weekly testing in lieu of vaccination) will not apply to workplaces covered by the federal contractor mandate; and (3) the Government continues to take the position that its mandates will preempt conflicting state or local laws. The full press release can be found at Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies.
How does this new guidance impact government contractor compliance with EO 14042?
Most notably, the guidance extends the deadline for full vaccination status for covered contractors from December 8, 2021, to January 4, 2022. Covered contractor employees should receive their final vaccine dose by the new January 4, 2022, deadline.
Yesterday, November 1, 2021, the Safer Federal Workforce Task Force issued significant new guidance for contractors implementing vaccine mandates. The two key takeaways are: (1) contractors are not required to terminate unvaccinated employees immediately when the mandate goes into effect on December 8, and (2) federal agencies should not terminate contracts if a contractor is actively working toward compliance, even if the contractor faces challenges to achieving full compliance. The full updated FAQ is available on the Safer Federal Workforce Task Force website.
Are contractors still required to mandate vaccination by December 8?
Yes, covered contractors are still required to mandate that employees get vaccinated by December 8. However, rather than terminate noncompliant employees after the December 8 deadline, contractors should “determine the appropriate means of enforcement” for their employees.
Texas Governor Greg Abbott just raised the stakes in the inevitable tide of litigation about President Biden’s COVID-19 vaccine mandates by issuing an Executive Order banning vaccine mandates in Texas. We expect other states to follow suit. This raises important questions for federal contractors, who are working against the clock to ensure compliance with the new vaccine mandate applicable to most federal contracts by December 8, 2021 (see our most recent blog post about the details of the mandate, Government Contractor Vaccine Mandate FAQ: Status of Class Deviations and Accommodations Process).
It has been a busy week on the federal contractor COVID-19 vaccine mandate front. We answer questions below about the new class deviations that should start showing up in new contracts and solicitations, and key open issues on exemptions and coverage.
Where do things stand right now?
The Executive Order (“EO”) contemplated formal FAR amendments to be published by October 8, 2021. That date looks like it will slip. The open FAR Case shows an Ad Hoc Team has been tasked with drafting a FAR rule, with a report due on November 17. In the interim, both the Civilian and Defense Agency Acquisition Councils issued class deviations (here and here, respectively) implementing the EO. The deviations largely mirror the September 24, 2021, guidance.
The ABA Section of Public Contract Law serves to provide balanced recommendations on procurement policy, provide a forum to engage with colleagues across all segments of the procurement industry, and gain insight into and develop unique perspectives of federal, state, and local public contract law. For more information, please visit the Section’s webpage.