Tag: EO

Buy American Act—Final Rule: What Has Changed?

Scott Arnold and Ustina M. Ibrahim*

On March 7, 2022, the FAR Council published the final rule containing changes to Buy American Act (“BAA”) domestic preference requirements.

This final rule is a significant step towards implementation of a policy to enhance domestic preferences announced by President Biden in E.O. 14005 just a few days after taking office. You may recall that the FAR Council previously issued a proposed rule that contemplated (1) phased increases in domestic content thresholds, (2) enhanced preferences for critical products and components, and (3) post-award reporting requirements for critical products and components. See our prior posts addressing President Biden’s E.O. 14005 and the proposed rule.

The final rule retained most of what the FAR Council initially proposed, but there are a few changes that we discuss below. We also point out some aspects of the new policy that remain to be fleshed out in future rulemaking.

Increased Domestic Content Thresholds

The proposed rule contemplated increasing the current domestic content threshold from 55 percent to 60 percent, with subsequent increases to 65 percent and 75 percent beginning in calendar years 2024 and 2029, respectively. The final rule retains these increases but allows for a longer period than typically provided before the first increase to 60 percent becomes effective. The 60 percent threshold will take effect October 25, 2022—over six months after publication, rather than the customary 30 or 60 days after publication. Thus, contractors and agencies have several more months to plan for the new threshold.

Continue reading “Buy American Act—Final Rule: What Has Changed?”

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

Scott Arnold, Justin A. Chiarodo, Stephanie 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).

Continue reading “Government Contractor FAQ: What’s up with the Vaccine Mandates?”

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

Scott Arnold, Justin A. Chiarodo, and Stephanie M. Harden


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.

Continue reading “Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate”

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”

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.

Continue reading “FAQ: Government Contractor COVID Safeguards Executive Order”

President Biden’s Recent Cybersecurity Executive Order Will Increase Compliance Obligations on the Private Sector

Sharon R. Klein, Alex C. Nisenbaum, Karen H. Shin, Justin A. Chiarodo, and Michael Joseph Montalbano

Companies providing information technology products and services to U.S. government agencies are now required to notify such agencies of cyber incidents and meet specific cybersecurity standards. The executive order attempts to modernize the federal government’s cybersecurity defenses by “protecting federal networks, improving information-sharing between the U.S. government and the private sector on cyber issues, and strengthening the [United States]’ ability to respond to incidents when they occur.” The executive order is just one example of the Biden administration’s push to improve the nation’s data privacy and cybersecurity practices in response to the recent series of ransomware attacks.

On May 12, 2021, President Biden signed an executive order to bolster the federal government’s cybersecurity practices and contractually obligate the private sector to align with such enhanced security practices (“the Order”). The Order comes on the heels of a ransomware attack on Colonial Pipeline that occurred on May 6, 2021, which shut down the largest oil pipeline in the United States and disrupted supplies of gasoline, diesel, and jet fuel to the East Coast. This initiative to improve the security of the software supply chain also stems from the SolarWinds cyberattack that occurred last year. In the attack, Russian hackers used a routine software update that Texas-based SolarWinds Corp. provided to its customers to install malicious code, allowing the hackers to infiltrate nine federal agencies and about 100 companies.

Proposed amendments are expected soon from the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) that will increase compliance obligations for government contractors and their vendors, building on a string of supply chain and cybersecurity regulation in recent years (including Section 889’s prohibition on the use of certain Chinese telecommunications, new registration requirements in the Supplier Performance Risk System, and the Department of Defense’s Cybersecurity Maturity Model Certification program). We see the biggest impacts on government contractors, such as developers and users of software.

To read the full client alert, please click here. 

Executive Order Increases the Minimum Wage for Federal Contractors—What Is the Impact?

Scott Arnold

Legal developments aimed at government contractors do not always make headline news in mainstream media, but last week’s Executive Order on Increasing the Minimum Wage for Federal Contractors, April 27, 2021 (“Executive Order”), did get widespread attention, perhaps because it is viewed by some in political circles as the next best thing for an administration that sees substantial congressional hurdles for more broadly applicable minimum wage increase legislation. So you have probably heard about about the Executive Order, but how will it impact government contractors?

What does the Executive Order do?

The Executive Order will increase the hourly minimum wage for workers working on or in connection with federal government contracts to $15.00, effective January 30, 2022. This will be a substantial increase from the current minimum wage of $10.95 applicable to most federal contracts pursuant Executive Order 13658. (EO 13658 originally set a federal contractor minimum wage of $10.10, effective January 1, 2015, when it was issued by President Obama in early 2014. That minimum wage has since increased annually.)

How will the increase be implemented?

The Secretary of Labor is to issue implementing regulations by November 24, 2021, and the Federal Acquisition Regulatory Council is to amend the FAR to provide the new minimum wage provisions in federal procurement solicitations, contracts, and contract-like instruments within 60 days after issuance of the Labor Department’s implementing regulations.

Continue reading “Executive Order Increases the Minimum Wage for Federal Contractors—What Is the Impact?”

Biden Administration Prioritizing Federal Contractor Workforce Protections

Merle M. DeLancey Jr.

Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.

One of President Biden’s first actions in office was to direct federal government agencies to start the work to permit implementation of certain changes within the first 100 days of the administration through further executive action. These initiatives most likely will include an increased federal contractor minimum wage, requirements to offer employment to employees of an incumbent contractor, perhaps requiring contractors to disclose labor violations when seeking federal contracts, and increased Service Contract Act (“SCA”) enforcement.

      • President Biden’s Executive Order 14003 on Protecting the Federal Workforce issued on January 22, among other requirements, directed the Office of Management and Budget to make recommendations regarding establishing a $15 minimum wage for federal employees and federal contractors and subcontractors (the current federal contractor minimum wage is $10.95) and to provide employees with emergency paid leave.

      • President Biden’s Executive Order 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government issued on January 20 revoked President Trump’s controversial Executive Order prohibiting certain types of workplace diversity trainings for federal government contractors.
Continue reading “Biden Administration Prioritizing Federal Contractor Workforce Protections”

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”

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