On November 30, 2021, the United States District Court for the Eastern District of Kentucky, in Kentucky v. Biden, et al., No. 3:21-cv-00055, granted a preliminary injunction limiting the enforcement of the federal vaccine mandate for some federal contractors and subcontractors. The preliminary injunction was requested by the Commonwealth of Kentucky, the State of Ohio, and the State of Tennessee. As a result, the court enjoined the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee” pending further briefing and a full resolution of the case on its merits.
As predicted, another Obama Administration “oldie but goodie” has made a return in the Biden Administration. On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.” Many of the same concepts and requirements have returned, but there are also several notable changes.
On September 10, 2021, the FAR Council published a final rule amending the Federal Acquisition Regulation (FAR) to clarify how contracting officers should evaluate a prime contractor’s “good faith efforts” to comply with a small business subcontracting plan.
There are new developments regarding the federal contractor COVID mandate as of November 10, 2021. The most important is that the deadline for compliance appears to have been pushed back from December 8, 2021 to January 18, 2022.
This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government. The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract. It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received. According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.
President Biden’s September 9, 2021 Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directs the federal Safer Federal Workforce Task Force (“Task Force”) to develop COVID-19 workplace safety guidance for federal contractors and subcontractors providing services to or for the federal government. The Executive Order requires the guidance to apply broadly, not only to contracts governed by the Federal Acquisition Regulations (“FAR”), but also to “contracts and contract-like” instruments not covered by the FAR. The Executive Order also directs the Federal Acquisition Regulatory Council to develop new contract clauses that will incorporate the Task Force’s guidance into new and newly-amended federal contracts.
Imagine as a supplier of medical oxygen cylinders and tanks in your region, you enter into an arrangement with HHS or DHS to provide oxygen to nearby hospital facilities dealing with surges in the COVID-19 pandemic. However, due to the recent dramatic surge in your area and the significant demand for oxygen, the government moved quickly to award you a contract that appears very different from other federal contracts you have previously signed.
Effective September 1, 2021, Texas Senate Bill 19 prohibits government entities from contracting with companies that have policies that restrict business with the firearms industry. The bill specifically targets banks and other financial institutions that have at least ten employees and are seeking government contracts of at least $100,000. Under the bill, such institutions are required to provide written verification that they do not have practices, policies, guidance, or directives that “discriminate” against a firearm entity or firearm trade association.
On September 9, 2021, President Biden held a press conference introducing the administration’s “Plan to Stop the Delta Variant and Boost COVID-19 Vaccinations.” At this conference, the President announced a pair of executive orders that mandate COVID-19 vaccinations for (1) employees of the executive branch of the federal government and (2) employees of federal contractors and subcontractors, and also announced a forthcoming Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) regarding vaccinations and/or routine testing for employers with more than 100 employees.
On July 29th, 2021, President Biden announced additional efforts to increase COVID-19 vaccination rates and to protect the federal workforce, including strengthening safety protocols for federal employees and contractors. Under the Biden Administration’s new guidance, in areas of high or substantial transmission of COVID-19, federal employees, contractors, and visitors must wear a mask inside federal buildings with limited exceptions. Individuals who are not fully vaccinated must wear a mask regardless of community transmission level.