Court of Federal Claims Declines to Adopt GAO’s Rule for Post-Proposal Key Personnel Changes

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Elizabeth N. Jochum and Robyn N. Burrows

For years, the Government Accountability Office (“GAO”) has been moving towards an increasingly draconian position on offerors’ obligations to notify agencies when the availability of proposed personnel changes after proposal submission. A recent decision by the Court of Federal Claims (“COFC”) in Golden IT, LLC v. United States expressly addressing and departing from the GAO precedent may give hope to offerors struggling with GAO’s requirement.

Golden IT, LLC (“Golden”) protested the Department of Commerce’s award of a single blanket purchase agreement to Spatial Front, Inc. (“SFI”). Among its many protest grounds, Golden claimed that SFI’s quote contained a material misrepresentation regarding key personnel because it proposed an employee who had allegedly left SFI after it submitted its bid and before receiving award. Golden claimed that SFI was obligated to notify the agency of the individual’s unavailability after submitting its proposal.

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Government Contractor FAQ: What’s up with the Vaccine Mandates?

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Scott ArnoldJustin A. ChiarodoStephanie M. Harden, and Samarth Barot

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:

      1. Occupational Safety and Health Administration (“OSHA”) mandate;
      2. Healthcare Worker mandate;
      3. Federal Employee mandate; and
      4. 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Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).

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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.

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Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate

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Scott ArnoldJustin A. Chiarodo, and Stephanie M. Harden

Stephanie Harden's Headshot Photo

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.

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The Federal Contractor Vaccine Mandate: What You Need to Know

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Brian S. Gocial, Stephanie M. Harden, and Frederick G. (“Gus”) Sandstrom

Stephanie Harden's Headshot Photo
Gus Sandstrom's headshot photo

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?

PRESENTERS

ABOUT NDIA

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.

New Government Guidance Sets January 4, 2022, as Uniform Vaccination Deadline

Justin A. Chiarodo, Stephanie M. Harden, and Samarth Barot

Stephanie Harden's Headshot Photo

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.

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Government Provides New Compliance Flexibility under Contractor Vaccine Mandate

Justin A. Chiarodo and Stephanie M. Harden

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Stephanie Harden's Headshot Photo



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.

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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.

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