Conflicting State and Federal Requirements for Government Contractors . . . Again

Merle M. DeLancey, Jr. 

In 2021, federal government prime contractors and subcontractors found themselves in a difficult situation with respect to COVID vaccination requirements. More than a dozen states enacted laws prohibiting companies from requiring their employees to be COVID-19 vaccinated or even show proof of COVID-19 vaccination as a condition of employment. At the same time, federal government contracts were subject to mandatory employee vaccination requirements in the FAR and DFARS. (i.e., FAR 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (DEVIATION) and DFARS 252.223-7999 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009) (OCT 2021). Luckily, the potential conflict was resolved, on May 9, 2023, when President Biden signed Executive Order (“EO”) 14099, Moving Beyond COVID–19 Vaccination Requirements for Federal Workers, which revoked EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. EO 14099 directed agencies to rescind any policies that were adopted to implement EO 14042. Thus, the potential conflict between inconsistent federal and state laws concerning COVID-19 vaccinations was mooted.

A new conflict between state and federal procurement requirements may be brewing for federal prime contractors and subcontractors concerning race-based employment preferences and diversity policies after the Supreme Court decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC.

Continue reading “Conflicting State and Federal Requirements for Government Contractors . . . Again”

Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington

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Justin A. Chiarodo and Robyn N. Burrows

In honor of Black History Month, we wanted to highlight one of the most impactful traditions in our Washington, D.C., office: the Black History Month D.C. Easel Project, in which Blank Rome attorneys, staff, and clients work together to create easels depicting notable historic events and figures from D.C.’s rich African American history. Thanks to the leadership and innovation of our partner Saminaz Akhter, the Easel Project has deepened our awareness and appreciation of the significant contributions Black people have made in our Nation’s Capital (you can learn more about the program in this video).

The theme for last year’s easels was civil demonstrations and protests, including the 1919 Red Summer riot, the 1939 Marian Anderson concert at the Lincoln Memorial, the 1958/59 Youth March for Integrated Schools, the 2020 George Floyd protests, and the 1963 March on Washington for Jobs and Freedom. Our research on the origins of the 1963 March on Washington revealed a surprising connection to the defense industry that we wanted to spotlight for our “Sustained Action” readership.

The seeds for the March on Washington were sown decades earlier, when A. Phillip Randolph (head of the Brotherhood of Sleeping Car Porters and an early leader of the civil rights movement) proposed a mass march on Washington, D.C., to highlight segregation and discrimination in the U.S. Armed Forces and the defense industry.

Continue reading “Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington”

Amplifying Our Clarion Call

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Justin A. Chiarodo, Dominique L. Casimir, and Krystal Studavent Ramsey  ●

Krystal Studavent Ramsey headshot image

We are thrilled to kick off our new Government Contracts Navigator blog series, “Sustained Action: DEI in Government Contracting,” which shines a light on diversity, equity, and inclusion initiatives and progress in the government contracts industry and at Blank Rome. As we wrote back in 2020, working to promote diversity, equity, and inclusion is not a one-time exercise but a practice—one to which we are committed for the long run.

We approach this effort fully embracing that we bring our own backgrounds, journeys, and perspectives to a complicated area, and that fostering an environment of mutual respect and the free exchange of ideas is critical to promoting the understanding of different viewpoints and implementing solutions that make a difference.

“Sustained Action” is our next step in this journey. This post focuses on our recent participation in the American Bar Association Public Contract Law Section’s (“ABA PCL”) 10 Day Tune Up, and other initiatives we are driving at Blank Rome in 2023. The 10 Day Tune Up was a follow-up program to the successful 2020 program that we wrote about previously, the 21-Day Racial Equity Habit-Building Challenge© (“21-Day Challenge”).

Continue reading “Amplifying Our Clarion Call”

Register Your Affirmative Action Plan Now!

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Merle M. DeLancey Jr. 

Federal government contractors and subcontractors with 50 or more employees and a federal contract or subcontract with a value of $50,000 or more measured during any 12-month period are required to develop a written Affirmative Action Program (“AAP”) within 120 days from the start of the federal contract.

The Office of Federal Contract Compliance Programs (“OFCCP”) has established a Contractor Portal for federal government contractors to register and certify that they have developed and maintained affirmative action programs at each of their establishments or functional units: OFCCP Contractor Portal. Contractors that do not register and certify are more likely to be selected for an OFCCP AAP audit.

The deadline to register and submit AAP certifications is June 30, 2022.

Affirmative Action Program Compliance Alert: OFCCP Online Contractor Portal

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Merle M. DeLancey Jr.

Beginning February 1, 2022, contractors and subcontractors required to maintain affirmative action plans (“AAPs”) can register for access to a new secure online contractor portal. The portal was developed and will be monitored by the Office of Federal Contract Compliance Programs (“OFCCP”). OFCCP has been working on an information and verification process for three years. In August 2021, the Office of Management and Budget approved OFCCP’s use of the portal. The portal provides contractors a secure method of (i) annually certifying compliance with AAP requirements and (ii) submitting AAPs to OFCCP during audits or compliance evaluations.

Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973 require contractors and subcontractors that hold a contract valued at $50,000 or more and employ 50 or more employees to comply with equal employment and affirmative action requirements. This includes developing and maintaining written AAPs. Currently, only services and supply contractors, not construction contractors, are required to certify compliance.

Continue reading “Affirmative Action Program Compliance Alert: OFCCP Online Contractor Portal”

Blank Rome Government Contracts: 2020 Year-in-Review

As 2021 shifts into high gear, Blank Rome’s Government Contracts practice is pleased to share our 2020 Year-in-Review, covering key government contracts issues, recent practice news and recognitions, and our look at the year ahead.

Thanks to the trust and support of our clients and colleagues and our dedication to our Client Service Principles, we helped guide clients through an unprecedented 2020, and look forward to partnering with them to forge ahead in 2021.

We are particularly proud of Blank Rome’s commitment to diversity, equity, and inclusion, including our practice’s facilitation of the ABA Public Contract Law’s 21-Day Racial Equity Habit-Building Challenge. We will continue to actively support these important issues in 2021 and beyond, and firmly believe our collective and sustained action will make a difference in our profession.

Finally, if you have not already, we invite you and your team to subscribe to this Government Contracts Navigator blog, where we cover issues of importance to our government contracting community. We know there are a lot of blogs out there, but we keep a strong focus on the practical, with day-to-day business considerations in mind. Interested in the greatest hits? We’ve included in this report a list of the top 10 read posts in 2020. You can also follow us on Twitter @GovConBR.

Thank you for reading. And please let us know how we can help you and your business. Wishing you and your families health and success in 2021.

Justin A. Chiarodo
Chair, Government Contracts
202.420.2706 |

Please visit our website to read our entire Blank Rome Government Contracts: 2020 Year-in-Review.

A Contractor’s Guide to Trump’s Diversity Training Order

Dominique L. Casimir, Brooke T. Iley, and Tjasse L. Fritz

An expanded version of our September 24, 2020, post, Trump Administration Bans Contractors from Providing Certain Types of Diversity Training, was published in Law360 on October 2, 2020. Read on for more information about the order and how contractors should respond.

Federal contractors have long provided various types of anti-harassment, nondiscrimination and diversity and inclusion, or D&I, training to their employees. After the death of George Floyd and the nationwide protests that followed, D&I training has proliferated in workplaces across the country, including within federal agencies and in the contractor community.

In response to the widespread public protests for racial equality, many companies and executives issued public statements denouncing racism. Many also pledged millions of dollars to social justice organizations. In numerous workplaces, employees have taken the initiative to organize book clubs and discussion circles focused specifically on promoting open workplace discussions about race. Some employers have provided lists of resources for employees seeking to learn more about issues of race.

On Sept. 22, the Trump administration issued a bombshell executive order purporting to ban certain types of D&I training,[1] leaving federal contractors scrambling to determine how best to comply, and how to identify and mitigate the new risks they now face.

Why now?

President Donald Trump has been vocal about his views on the discourse of racial issues following the nationwide protests for racial equality that started at the beginning of the summer.

In June, the president rejected calls to rename military bases honoring Confederate generals.[2] The Trump administration issued a memorandum on Sept. 4,[3] directing agencies to identify:

all contracts or other agency spending related to any training on critical race theory,[4] white privilege, or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil [and to] identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.

The executive order that followed three weeks later takes aim at contractor-provided workplace D&I training that the Trump administration considers divisive and objectionable.

Please click here for the full article.

Trump Administration Bans Contractors from Providing Certain Types of Diversity Training

Brooke T. Iley, Dominique L. Casimir, and Tjasse L. Fritz

On Tuesday evening, the Trump administration surprised the federal contracting community by issuing an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that will ban federal contractors from conducting certain types of anti-discrimination training. In particular, the EO prohibits workplace racial sensitivity and diversity and inclusion (“D&I”) training programs that contain so-called “divisive content,” defined in the EO as instilling a belief in the existence of systemic racism and inherent bias. The EO expands an earlier ban issued in a September 4, 2020, memorandum that prohibits certain anti-discrimination training from being conducted within federal agencies.

The EO comes on the heels of a widespread social and racial justice movement that dominated much of the summer of 2020, in response to which corporate America has taken a stand, with companies pledging millions to social justice reform movements. An overwhelming number of employers either have offered or plan to offer some form of diversity training to their employees. This latest EO leaves many federal contractors and subcontractors wondering whether and how to proceed, and what penalties they may face if they offer such training. Continue reading “Trump Administration Bans Contractors from Providing Certain Types of Diversity Training”

Our Clarion Call: Thoughts on Our 21-Day Racial Equity Habit Building Challenge

Dominique L. Casimir and Justin A. Chiarodo ●

A few weeks ago we wrote about our Government Contracts practice group’s decision to opt in to the 21-Day Racial Equity Habit Building Challenge (the “Challenge”) launched by the American Bar Association (“ABA”) Section of Public Contract Law. The 21-Day Challenge was a syllabus of 21 daily assignments—curated for the ABA by Dominique Casimir—focusing on the Black American experience, including Black history, identity and culture, the experience of anti-Black racism in America, and the intersection between systemic racism and the legal profession.

What We Did: We invited our clients to participate with us in a series of weekly discussion groups to share perspectives on the racial equity movement currently underway in this country, to reflect on how we got here, and to challenge ourselves to consider what we are doing—in our respective workplaces, and as individual lawyers—to work towards racial equality. This experience was unlike anything we have done with our clients before, and admittedly we were not sure how clients would respond when we invited them to engage with us in an ongoing series of small-group, candid discussions about a topic as sensitive as race. We were incredibly humbled that so many of our clients enthusiastically welcomed this opportunity.

Continue reading “Our Clarion Call: Thoughts on Our 21-Day Racial Equity Habit Building Challenge”
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