State Vaccine Mandate Bans: What Are Federal Contractors to Do?

Justin A. Chiarodo and Stephanie M. Harden

Stephanie Harden's Headshot Photo

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).

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Government Contractor Vaccine Mandate FAQ: Status of Class Deviations and Accommodations Process


Justin A. Chiarodo
 and Stephanie M. Harden

Stephanie Harden's Headshot Photo

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.

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Breaking Down the COVID-19 Safety Guidance for Government Contractors and Subcontractors: What We Know, What We Don’t, and What’s Next

Justin A. Chiarodo and Albert B. Krachman


Answering some questions and raising others, the Safer Federal Workforce Task Force issued its highly anticipated COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors on Friday, September 24. The Guidance follows the president’s September 9, 2021, Executive Order (“EO”), which we summarized in FAQ: Government Contractor COVID Safeguards Executive Order.

In short: a broad vaccine mandate for employees of government contractors is coming. But the exact details on application, exemptions, and compliance remain unclear. New rules due by October 8, 2021, should better address those questions. Adding to this uncertainty, the Guidance encourages individual agencies to issue their own (potentially broader) guidance. That said, we can infer a lot from Friday’s guidance.

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FAQ: Government Contractor COVID Safeguards Executive Order

Justin A. Chiarodo, Brooke T. Iley, and Albert B. Krachman



“If you want to work with the federal government, do business with us? Get vaccinated” – President Biden, White House Remarks, September 9, 2021

We forecast in March (Will Federal Contractors Be Required to Certify Employee COVID Vaccinations?) possible COVID safety mandates for government contractors. They’ve arrived. President Biden issued a September 9, 2021, executive order (“EO”) that will implement sweeping COVID Safety protocols for government contractors, including potential vaccine mandates, to be established by the Safer Federal Workforce Task Force.

This FAQ breaks down the basics and includes our assessment of best practices pending forthcoming rulemaking.

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Blank Rome Webinar Now Available On Demand: Complying with Federal Contractor Vaccine Mandates: Best Practices

“If you want to do business with the federal government,
get your workers vaccinated.”

-President Biden, July 29, 2021 

Please join Blank Rome’s Albert B. Krachman, partner in our Government Contracts practice group, and Brooke T. Iley, partner and co-chair of our Labor & Employment practice group, as they provide timely and insightful analysis of President Biden’s vaccination mandate for federal contractors in the wake of the Delta variant, including in-depth discussion of:

  • COVID-19 vaccinations as an element of FAR Part 9—Contractor Qualifications
  • Scope of Mandate 
  • Contractor Vaccination Program Design 
  • Resolving Federal/State/Local Law Conflicts
  • Vaccinations and Federal Market Share—Trends to Watch

Tuesday, August 31, 2021 | 1:00—1:30 p.m. EDT
Online Event

WATCH WEBINAR RECORDING

To learn more, please read Will Federal Contractors Be Required to Certify Employee COVID Vaccinations? (Government Contracts Navigator, March 10, 2021).

Department of Veterans Affairs Releases Contractor Vaccination Guidelines

Merle M. DeLancey Jr.

At the end of July 2021, the Biden administration announced that, in addition to federal government employees, onsite federal contractor employees will be required to attest to their COVID-19 vaccination status. Visitors to federal buildings or federally controlled indoor workspaces and other individuals interacting with the federal workforce also will be required to submit a signed Certification of Vaccination form.

Any onsite contractor employee or visitor who declines to respond or responds that they are not fully vaccinated must (i) wear a mask regardless of the level of community transmission; (ii) physically distance; and (iii) provide proof of having received a negative COVID-19 test from within the previous three days if not enrolled in the applicable agency’s testing program. Federal agencies are required to establish a weekly or twice-weekly testing program for individuals not fully vaccinated. In addition, all onsite contractor employees and visitors, even those fully vaccinated, will be required to wear a mask in areas of high or substantial transmission.

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Tips to Maximize Contractor Recoveries for Public Health-Related Claims: Lessons from Pernix Serka and the Ebola Crisis

Justin A. Chiarodo and Stephanie M. Harden

Stephanie Harden's Headshot Photo

Does the mere existence of a deadly epidemic entitle a contractor to monetary relief when it experiences cost increases stemming from that epidemic? Not without Government direction, ruled the Federal Circuit in affirming a decision of the Civilian Board of Contract Appeals (“CBCA”) in Pernix Serka JV.

The facts of Pernix Serka are striking: a contractor repeatedly requests guidance for dealing with a major health crisis, the Government refuses to provide guidance, and the contractor is unable to recoup the additional costs it incurs in order to proceed with performance because the Government provided no guidance.

This timely ruling sheds light on strategies contractors should consider for recouping costs stemming from the COVID-19 pandemic. We provide a roadmap below for navigating these issues in light of Pernix Serka JV.

The 2014 Ebola Crisis

Pernix Serka was in the midst of performing a contract in Sierra Leone when a deadly Ebola outbreak struck the country in 2014. Pernix Serka diligently sought guidance from the Contracting Officer on its State Department (“DOS”) contract, but the Government refused to weigh in on whether it should temporarily shut down its work on the contract. Ultimately, Pernix Serka decided to temporarily withdraw its personnel, which the Government then characterized as Pernix Serka’s “unilateral” decision. When Pernix Serka sought advice on whether and when to resume work, the Government went so far as to say that “DOS will not provide any instructions or directions” regarding whether and when to return to the work site. The contractor ultimately decided to resume performance, but incurred additional costs when it decided to contract for medical facilities and services on the project site.

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How to Know the Government Is Investigating You or Your Company in Connection with COVID Relief Funds

By Merle M. DeLancey Jr.Craig Stetson*, and Jennifer A. Short

In our previous blogs, we discussed the multiple government enforcers and regulators charged with authority to oversee the application, eligibility, and use of COVID relief funds. Here, we address how to know whether you or your company is under investigation or review or being considered for same. Sometimes it is obvious—for example, when the Federal Bureau of Investigation (“FBI”) along with other agencies raid your offices. Other times, the signs are subtle. 

The federal government has an arsenal of tools it uses to gather information for investigations and audits. These tools are not new and are not specific to COVID relief funds. However, some of the “new” entities created by COVID relief legislation (e.g., the Special Inspector General for Pandemic Recovery (“SIGPR”)), as well as the coordination of agency inspectors general on the Pandemic Response Accountability Committee (“PRAC”)), can use those same old tools to hone in on recipients of COVID-related funding.

Below are some practical tips to understand whether you are being investigated based upon investigative tools used by the government. 

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Paycheck Protection Program Audits Are Upon Us—Borrowers Prepare!

Merle M. DeLancey Jr., Craig Stetson*, and Jennifer A. Short

In our last post on this topic, we touched on how the acceptance, use, and forgiveness of Paycheck Protection Program (“PPP”) loans can be viewed in the context of a Defense Contract Audit Agency (“DCAA”) audit. This post focuses on audits and investigations involving PPP loans. Close scrutiny of PPP loans is not a prediction; it is reality. The Small Business Administration (“SBA”) has announced it will audit all PPP loans in excess of two million dollars following a lender’s submission of a borrower’s loan forgiveness application, and it reserves the right to “spot check” any PPP loan of a lesser amount at its discretion. The Department of Justice has already charged multiple individuals with PPP fraud. And this is just the beginning of what many think will be a tidal wave of enforcement activity involving PPP loans.

Overview of the PPP

The PPP is the largest relief measure for small businesses under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The government has made available nearly one trillion dollars in PPP relief funds through four separate funding measures ($349 billion via the CARES Act; $310 billion via the PPP and Health Care Enhancement Act; $284 billion via the Consolidated Appropriations Act of 2021; and $7.25 billion via American Rescue Plan Act of 2021).

The PPP makes available guaranteed SBA loans to small business that meet certain eligibility requirements. In addition, PPP loans can be forgiven fully if used properly to cover specified business expenses such as payroll, rent, utilities, mortgage interest, and other limited uses. As of April 11, 2021, the SBA had approved more than 9.5 million loans totaling more than $755 billion using more than 5,400 lenders.

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COVID-Related Audits and the DCAA’s New Audit Direction

Merle M. DeLancey Jr. and Craig Stetson*

This is the third in a series of posts regarding what we believe will be an onslaught of government investigations and audits of COVID relief funds and contracting. Previously, we identified likely categories of programs, contracts, and companies the government might investigate or audit. Below, we discuss the Defense Contract Audit Agency’s (“DCAA”) current direction, interests, and initiatives related to contractors’ receipt of COVID relief funds and the impact an uncertain business environment may have on government contract pricing and costing forecasts.

COVID Relief Funds

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) funding opportunities come with unique government contract compliance requirements and financial reporting obligations. The funding is not “free” and may result in financial consequences to unwary contractors. DCAA knows this and will be conducting audits to test contractors’ compliance with unique relief fund requirements. Contractors unaware of these accounting and reporting requirements risk DCAA questioning or denying costs.

In January 2021, DCAA issued an audit alert to its regional offices pertaining to COVID relief legislation and regulation.[1] The audit alert includes frequently asked questions and answers (“FAQs”) concerning contractors’ request or receipt of COVID relief funding. Originally released last summer, the FAQs have been revised and expanded several times. The FAQs telegraph DCAA’s position on various instances where COVID relief funding intersects with or impacts government contract cost accounting and compliance.

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