On December 8, 2021, President Biden issued Executive Order (EO) 14057 “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The EO is the administration’s most recent effort to achieve “a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.”

Federal agencies, government suppliers, and American businesses are urged to embrace the administration’s sustainability objectives and attain cleaner and more sustainable operation standards.

Federal Sustainability Plan

The EO describes the Biden administration’s efforts to adopt green technology by focusing on five aspects.

Continue Reading Biden’s “Clean Energy” Directive’s Impact on Government Contractors

As the legal battles over the Biden administrations vaccine mandate for federal contractors continue, I authored an article for Law360 published on December 22, 2021 discussing significant rulings limiting the mandate’s enforcement in matters brought by multiple states.

After the U.S. District Court for the Eastern District of Kentucky ruled on November 30 to prohibit enforcement of the mandate against contractors and subcontractors in Kentucky, Ohio and Tennessee, the U.S. District Court for the Middle District of Georgia issued an injunction on December 7 prohibiting such enforcement nationwide. On December 16, the U.S. District Court for the Western District of Louisiana issued a third injunction prohibiting enforcement of the mandate, which was limited to the plaintiff states.

In addition to detailing the arguments and legal considerations weighed by the court in each case, I offered insight on what contractors can do now as additional cases are heard around the country, particularly as related matters head for January 7 oral arguments at the U.S. Supreme Court (announced shortly after Law360 published my article).

Continue Reading Injunctions May Only Pause the Government Contractor Vaccine Mandate

A 2016 Government Accountability Office (GAO) report noted that the Office of Federal Contract Compliance Programs (OFCCP) did not have an official method of validating contractors’ affirmative action plans or programs (AAP) compliance. GAO recommended that OFCCP progress from an “honors” or self-representation system to a mechanism that regularly monitors AAP compliance. In September 2020, OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process.

On December 2, 2021, the U.S. Department of Labor (DOL) announced that federal service and supply contractors and subcontractors presently required to create and maintain written AAPs will also be required to certify whether they meet annual AAP requirements. Certification will be through a secure online Contractor Portal developed and monitored by OFCCP. Contractors can also upload their AAPs to the portal during a compliance evaluation. Certifying compliance in the Contractor Portal does not exempt a contractor or subcontractor from compliance evaluations. Contractors and subcontractors that are only construction and not supply and service contractors are not required to certify AAP compliance.

Continue Reading OFCCP’s New Affirmative Action Program Oversight Tool

On December 16, in the challenge filed by Louisiana, Mississippi, and Indiana to the federal contractor vaccine mandate, the Western District of Louisiana (WD of LA) granted the plaintiff’s motion for a preliminary injunction (PI) with respect to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  However, the ruling denied the motion for a PI to the extent it sought to enjoin the application of EO 14042 against contracts between private contractors and the government.

WD of LA Splits from the Other Districts on Key Contractor Vaccine Mandate Issues

Interestingly, unlike the Eastern District of Kentucky (ED of KY) and Southern District of Georgia (SD of GA), the WD of LA concluded that “a reasonably sufficient nexus can exist between EO 14042 and the government’s policy under [the Federal Property and Administrative Services Act] to procure and manage properties and services in an economical and efficient manner.”  Instead, the WD of LA concluded that the EO is unlawful because it conflicts with the Tenth Amendment.

Continue Reading A Third Court Enjoins the Federal Contractor Vaccine Mandate

For nearly two years, we have been reporting on this blog about the Department of Defense’s (DoD) Cybersecurity Maturity Model Certification (CMMC) program. CMMC is a training, certification, and third-party assessment program designed to protect federal contract information (FCI) and controlled unclassified information (CUI) shared by DoD with its contractors and subcontractors through federal acquisition programs.

On November 4, the DoD announced that CMMC 2.0 would replace CMMC 1.0. The announcement was followed by a publication in the Federal Register of a summary of DoD’s CMMC 2.0 plans, which explains that the changes will be implemented through the notice and comment rulemaking process, proposing revisions/additions to titles 32 and 48 of the Code of Federal Regulations.

The decision was driven in large part by the more than 850 public comments submitted to the DoD in response to the CMMC 1.0 interim DFARS rule released on September 29, 2020, focusing on the need to enhance CMMC by doing the following, according to CMMC Frequently Asked Questions:

  1. Reducing costs, particularly for small businesses.
  2. Increasing trust in the CMMC assessment ecosystem.
  3. Clarifying and aligning cybersecurity requirements to other federal requirements and commonly accepted standards.


Continue Reading DoD Scraps CMMC 1.0 for CMMC 2.0

On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.

Today, the District Court for the Middle District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.

The President Likely Exceeded Statutory Authority

The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing Executive Order [EO] 14042.”

Continue Reading Georgia District Court Enjoins Government Contractor Vaccine Mandate Nationwide

As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary Standard applicable to employers with 100 or more employees and the CMS interim final rule mandating vaccinations applicable to Medicare- and Medicaid-certified providers and suppliers.

As expected, on December 3, the Department of Justice (DOJ) asked the ED of KY for an immediate stay of the injunction and filed a notice of appeal to the Sixth Circuit. The plaintiffs have asked for three business days to respond, and it is unclear when the ED of KY will act on DOJ’s request. But the ED of KY case may be overtaken by other events, as preliminary injunction hearings in additional challenges to the government contractor vaccine mandate occurred on December 3 in two cases and are expected to happen on December 6 and 7 in two others.

Limited or Nationwide Injunction?

In the past few years, several commentators have questioned the conditions, if any, under which district courts may issue nationwide injunctions. While this is a very complex issue that brings into question the rights of the parties in a particular case, those in favor of limiting injunctions to the plaintiffs in the case generally favor having multiple district courts consider an issue so that the legal arguments are better developed before consideration by the appellate courts. Those in favor of nationwide injunctions believe that consistency is favorable, any district court is authorized to enjoin any executive branch action that it determines to be unlawful, and the government’s ability to appeal an injunction provides sufficient protection against improperly issued injunctions.

Continue Reading DOJ Seeks Stay of KY, OH, and TN Injunction; Hearings Go Forward in Other Government Contractor Vaccine Mandate Cases

In a decision issued on November 17, JKB Solutions v. United States, the Federal Circuit held that the commercial item termination for convenience provision at FAR 52.212-4(l) incorporated by reference into a contract for commercial services did not apply because that provision “governs the termination of commercial item contracts for the government’s convenience, and it does not apply to service contracts ….” (emphasis added).

If taken to its logical conclusion, this remarkable decision would mean that no commercial “item” provision in the Federal Acquisition Regulation (FAR) applies to services even if incorporated in the contract, effectively overturning a decades-long understanding that the commercial item definition encompasses both goods and services. In one fell swoop, the Federal Circuit effectively eliminated the entire category of commercial services.

Background

JKB had entered into a three-year ID/IQ contract with the Army for instructor services, under which the Army issued three yearlong task orders.  The price of each task order included 14 classes, but each year the Army used JKB for fewer than 14 classes, using Army personnel to teach the balance of the classes, paying JKB only for the classes it actually taught.

As a result, JKB sued for breach of contract.  The Court of Federal Claims (COFC) held that the Army had constructively terminated the contract for convenience pursuant to FAR 52.212-4, which was incorporated by reference, and that the termination for convenience had not been in bad faith or an abuse of discretion because the contract was never actually terminated for convenience.  In so holding, the court concluded that JKB could only recover its termination for convenience costs, which it had not sought in its complaint. JKB appealed.

Continue Reading Did the Federal Circuit Just Eliminate Commercial Services?

On November 30, the District Court for the Eastern District of Kentucky enjoined the government contractor vaccine mandate issued in accordance with President Biden’s Executive Order 14042. This injunction follows an injunction issued on November 29 of the CMS vaccine mandate and the earlier injunction of the OSHA Emergency Temporary Standard by the Fifth Circuit.

Likely in response to the flurry of litigation challenging the government contractor vaccine mandate, on November 16 the Office of Management and Budget (OMB) published a new notice of determination and request for comments in the Federal Register. The new determination, which rescinds and supersedes the prior notice issued on September 24, 2021, and published in the Federal Register on September 28, 2021, provides additional support for the revised Safer Federal Workforce Task Force (Task Force) Guidance issued on November 10, 2021.

Task Force Guidance Published for the First Time

The revised notice, which asks that comments be submitted on or before December 16, 2021, is divided into three parts.  Part I published in the Federal Register for the first time the entire Task Force Guidance. While it is positive that the Guidance has finally been published, it is incomplete in one major respect. Specifically, although the November 10 version published in the Federal Register includes links to the regularly-updated frequently asked questions (FAQs), OMB fails to mention that the FAQs and the Guidance are subject to revision or that the contract provisions implementing these requirements mandate that contractors comply with the Guidance as it appears now and “as amended during the performance” of the contract.

OMB Expands its Economic Analysis

Part II of the notice, titled “Economy-and-Efficiency Analysis,” provides a post hoc justification for the measures initially taken over six weeks ago.  While some of OMB’s arguments and observations may have merit, the analysis leaves many open questions.

Continue Reading OMB Attempts to Plug Holes in the Government Contractor Vaccine Mandate