Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

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James A. Tucker

Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

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Bid Protest Spotlight: Jurisdiction, Price Range, Late-Is-Late

Trump Issues Executive Order on Cybersecurity Rolling Back Some Prior Policies and Introducing New Ones

GAO Reaffirms Agencies’ Discretion to Award Sole-Source SBIR Phase III Contracts (Even to a Successor-in-Interest)

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Lawyers for the U.S. government and challengers to the federal contractor vaccine mandate both faced tough questions from an Eleventh Circuit panel in Atlanta, Georgia on Friday, April 8, 2022.  The appeal from the Southern District of Georgia’s decision preliminarily enjoining Executive Order 14042 late last year primarily <a href="https://govcon.mofo.com/coronavirus/a-second-look-parties-spar-over-vaccine-mandate-in-eleventh-circuit-appeal-from-eo-14042-injunction/" target="_blank">raises questions</a> about the President’s authority under the Federal Property and Administrative Services Act (often referred to as the Procurement Act), whether plaintiffs had established the requirements for preliminary injunctive relief, and whether the <a href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html">nationwide preliminary injunction</a> issued by the district court was overbroad.  Argument lasted nearly an hour, with Judges Britt C. Grant, J.L. Edmondson, and R. Lanier Anderson III giving each side 25 minutes to both present their case and answer the appellate court’s questions.Early on, Judge Edmonson pressed the government on the standard of review.  Noting that he thought it was a “hard” case, Judge Edmonson said he “wouldn’t be surprised at the end of the day if” either side ultimately prevailed.  But it was that uncertainty, he said, that made it difficult for him to conclude that the district court had abused its discretion.  “It’s not plain to me that your side is right,” Judge Edmonson told the government, “and I think that that’s enough to say that there’s been no abuse of discretion.”  The government pushed back that any error of law is an abuse of discretion, however, and argued that there should be no special deference in reviewing the purely legal question of the President’s authority under the Procurement Act.Judge Anderson, meanwhile, expressed some skepticism about the challengers’ likelihood of success on the merits.  “It makes common sense and is consistent with common experience, that if you’re not vaccinated there’s a much greater chance that you’re going to get sick and delay the work,” Judge Anderson said.  And he expressed the view that Executive Order 14042 is consistent with previous executive orders that courts had deemed lawful exercises of authority under the Procurement Act.  “I see no expansion of regulatory authority here,” Judge Anderson said.On the other hand, one potential sticking point for the court was the health component of Executive Order 14042, which the court pressed the parties to address.  The government argued that the executive order is a directive to agencies, akin to a quality control standard, and does not require modification of existing contracts.  The government further noted that fears of a mass exodus of employees over the vaccine mandate have proven largely unfounded.  Meanwhile, the challengers focused on their position that Executive Order 14042 is not related to the economy and efficiency of federal contracting, as the Procurement Act requires.  And they pointed to the absence of evidentiary data from the government to support the notion that the absence of a vaccination requirement would harm federal procurements.The panel also pushed counsel for the challengers about the scope of the preliminary injunction.  Judge Grant observed that the justification for nationwide relief provided in the district court was “rather thin.”  And Judge Edmonson expressed his concern that the injunction applied even to those federal contractors who “affirmatively don’t want the relief.”  Counsel for the challenger States pointed out that it would be “really complicated and difficult to understand how this was supposed to work if it didn’t apply to everyone.”  And counsel for challenger Associated Builders and Contractors, Inc., told the panel that nationwide relief was appropriate because it has members in every State.The Eleventh Circuit is the first court of appeals to receive full briefing and to hear oral argument in a <a href="https://govcon.mofo.com/coronavirus/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042/">series of cases across the country</a> challenging the Biden administration’s efforts to impose vaccine requirements on federal contractors.  Appeals remain pending in several other circuits, including the Ninth, where the government filed a notice of appeal on April 8, 2022, from a preliminary injunction issued by an Arizona district court earlier this year.  As always, we will continue to monitor and provide updates on these cases as they develop.

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

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Raytheon Co.

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DynCorp International, LLC

Planned Sys. Int’l, Inc.

Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

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Eleventh Circuit Hears Oral Argument in EO 14042 Preliminary Injunction Appeal

Five Peculiarities of Protests of Federal Supply Schedule Orders

Lawyers for the U.S. government and challengers to the federal contractor vaccine mandate both faced tough questions from an Eleventh Circuit panel in Atlanta, 

Eleventh Circuit Hears Oral Argument in EO 14042 Preliminary Injunction Appeal

Coronavirus

It has been more than two months since the U.S. District Court for the Southern District of Georgia <a href="https://govcon.mofo.com/labor-employment/georgia-court-issues-nationwide-injunction-of-executive-order-14042-2/">issued a nationwide preliminary injunction of Executive Order 14042</a>, the Biden Administration’s effort to impose a vaccine requirement on federal contractors. Since then, the district court has <a href="https://govcon.mofo.com/coronavirus/double-take-nationwide-preliminary-injunction-of-eo-14042/#_ftn1">clarified the scope of its injunction</a>, and a number of <a href="https://govcon.mofo.com/coronavirus/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042/">other trial courts have weighed in</a>. But the fate of EO 14042 is still far from settled. The next major test will come in the U.S. Court of Appeals for the Eleventh Circuit, where the government has appealed the Georgia trial court’s order granting the preliminary injunction. Oral argument is not scheduled to take place until April, but now that the parties (and a few amici curiae) have had a chance to submit their appellate briefs, it’s worth taking a moment to examine the legal issues at play. A brief summary of each party’s arguments on appeal follows:The federal government identifies the following three issues for the Eleventh Circuit’s review: (1) whether EO 14042 is a lawful exercise of the President’s authority under the Federal Property and Administrative Services Act, or the Procurement Act; (2) whether the plaintiffs failed to establish the equitable requirements for preliminary injunctive relief; and (3) whether the scope of the preliminary injunction is overbroad.<ul><li>On the first question, the government argues that because the Procurement Act authorizes the President to “prescribe policies and directives” that he considers “necessary” to ensure “an economical and efficient system” for procurement, and COVID disrupts work by causing absences or spreading illness, EO 14042’s vaccine mandate serves the statute’s goals. The “major questions” doctrine—under which the trial court presumed that Congress would have specifically authorized a vaccine mandate if it had intended to provide such power via the Procurement Act—applies only when, unlike here, the Executive Branch exercises regulatory authority and when it is unclear whether the statute delegates power to the Executive Branch. Likewise, the Procurement Act’s economy-and-efficiency standard does not create non-delegation problems because that standard supplies an intelligible principle guiding the President’s actions. And federal contracting does not implicate federalism concerns at all.</li><li>As for the equities informing injunctive relief, the government argues that plaintiffs never established irreparable injury because compliance costs are insufficient to constitute irreparable harm, while enjoining the mandate would harm productivity in vital contracts such as those relating to national security and public health.</li><li>Finally, the government argues that the nationwide injunction is overbroad and should have been limited to parties to this suit under fundamental constitutional and remedial principles.</li></ul>In response, appellees state plaintiffs (Georgia, Alabama, West Virginia, Kansas, Idaho, South Carolina, Utah) and Associated Builders and Contractors, Inc. (Associated), defend the district court’s order in separate briefs.<ul><li>State plaintiffs argue that EO 14042 exceeded the President’s authority because the Procurement Act authorizes only modest control over the government’s internal operations, not extensive power to set health and safety measures at private companies. The government did not adequately explain its efficiency rationale, the states argue, and, in any event, the guidance and FAR deviation clause implementing the vaccine mandate violated procedural requirements by never going through notice-and-comment.</li><li>The equities also favored an injunction, the states say, because the EO forces them to choose between losing hundreds of millions of dollars in federal contracts or firing employees who cannot be replaced.</li><li>The injunction is proper in scope, the states argue, because only one plaintiff in a group needs to establish standing to seek relief, and all the states enter into contracts with the federal government.</li><li>Associated, meanwhile, relies heavily on the <a href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html">U.S. Supreme Court’s decision halting the Occupational Safety and Health Administration’s vaccine-or-test mandate</a> in arguing that EO 14042 exceeded the President’s authority. Both cases implicate constitutional limitations on executive authority and the lack of a clear congressional mandate. Because the Supreme Court has already concluded that COVID is a universal problem, not a special workplace risk, Associated argues that the same considerations make the government unlikely to prevail on the merits here.</li><li>Equitable considerations also favor plaintiffs, Associated contends, because of the potential for disqualification from bidding and the incurrence of considerable administrative costs necessary for compliance, while Omicron variant COVID infections are in decline.</li><li>Like the states, Associated also argues that the universal scope of the injunction is appropriate because federal contracting occurs nationwide.</li></ul>In addition to the parties’ submissions, two amici curiae have also filed briefs, both in support of plaintiffs-appellees.<ul><li>The Chamber of Commerce brief focuses on statutory authority, arguing that the Procurement Act does not support the exercise of authority in EO 14042 for the same reasons discussed in appellant’s briefs. And like Associated, the Chamber draws a direct parallel to the Supreme Court’s treatment of the OSHA mandate.</li><li>In their brief, state amici (Florida, Alaska, Arkansas, Arizona, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, and Texas) expand on the arguments that the government committed procedural errors in implementing EO 14042. In addition to the notice and comment point, state amici also contend that the government improperly allowed the Safer Federal Workforce Task Forceto set the terms of the mandate, and that the resulting policy was arbitrary and capricious in violation of the Administrative Procedure Act for failing to recognize countervailing policy arguments.</li></ul>The federal government addressed most of these various arguments in its reply brief.<ul><li>On statutory authority, the government replies that nothing in the Procurement Act’s text or case law interpreting it supports plaintiffs’ restrictive reading, and that there is no real difference between contracting requirements that directly enhance economy and efficiency and those that do so indirectly via health measures.</li><li>The government’s reply also responds, for the first time on appeal, to plaintiff states’ and amici states’ arguments that EO 14042 suffers from procedural defects. The district court never reached those issues, the government notes. But in any event, neither the Task Force Guidance nor the FAR Council memo are final agency action because they lack immediate legal force without further action. In addition, the OMB’s acting director’s separate determination was not subject to notice and comment requirements because she was exercising authority delegated directly by the President. And she complied with that statutory framework anyway by expressly waiving the notice and comment requirement in light of compelling circumstances.</li></ul>The Eleventh Circuit is set to hold oral argument on April 8 and could issue a decision any time after that. While this case is the first to reach full briefing in a court of appeals, other federal appellate courts—including the Fifth, Sixth, and Eighth Circuits—will soon be considering these issues, too. Of course, if the OSHA vaccine-or-test mandate is any indication, <a href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html">the Supreme Court may ultimately have the final word</a>. As always, we will continue to monitor and provide updates on these developments.

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A Second Look: Parties Spar Over Vaccine Mandate in Eleventh Circuit Appeal from EO 14042 Injunction

Another Ticking Clock: Additional District Court Preliminarily Enjoins EO 14042 | Increasing Need for OMB Update on GA Court Clarification Order

It has been more than two months since the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction of Executive Orde

A Second Look: Parties Spar Over Vaccine Mandate in Eleventh Circuit Appeal from EO 14042 Injunction

On January 27, 2022, the U.S. District Court for the District of Arizona joined the growing list of courts that have preliminarily enjoined Executive Order 14042 (which imposes COVID safety protocols on government contractors, including a vaccine mandate) based on an initial determination that the President exceeded his authority under the Federal Property and Administrative Services Act (FPASA), among other reasons. The court is expected to issue an order confirming the scope and applicability of the preliminary injunction soon, as the government has until Monday, February 7, 2022, to submit objections to the plaintiffs’ proposed form of injunction. The government is expected to appeal the decision at the U.S. Court of Appeals for the Ninth Circuit.In finding that the President likely exceeded his authority under FPASA, the district court followed an analytical path laid out by the Supreme Court in its recent decision reinstating the stay of the Occupational Safety and Health Administration’s emergency temporary standards. Based on a lack of historical precedent of past Presidents using FPASA to effectuate a “sweeping public health policy,” and the absence of a clear delegation by Congress to issue such a policy, the district court determined that the plaintiffs were likely to succeed on this ground. To reinforce that conclusion, the court distinguished its findings from those made by the Supreme Court in its decision lifting the preliminary injunction of the vaccine mandate issued by the Centers for Medicare & Medicaid Services.Like several of its peers, the district court also found that the “Contractor Mandate intrudes into an area traditionally and principally reserved to the states,” the “traditional ‘police power,’” and therefore likely violated the 10th Amendment. On the balance of the merits issues, the court preliminarily rejected the plaintiffs’ due process arguments and their arguments under the Procurement Policy Act and the Emergency Use Authorization Statute.In a separate (but related) development, the U.S. Court of Appeals for the Eleventh Circuit scheduled oral argument for April 8, 2022, on the Georgia court’s nationwide preliminary injunction of the vaccine mandate for government contractors. Additionally, the government filed an unopposed motion to hold the appeal of the Florida district court’s preliminary injunction in abeyance, as the “case presents substantially the same question of law awaiting resolution by” the Eleventh Circuit in the Georgia case, which the appellate court has already scheduled on an expedited basis. (We previously reported on these cases in our <a href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html">client alert</a> and <a href="https://govcon.mofo.com/coronavirus/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042/">blog post</a>).While litigation continues, the U.S. Office of Management and Budget (OMB) has still not updated the list of “Currently Excluded States and Outlying Areas,” and the Safer Federal Workforce Task Force has been silent in response to the Georgia district court’s clarification order. (We previously reported on that order in our <a href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html">client alert</a>). The lack of up-to-date and clear guidance makes it all the more important for contractors to consider seeking written clarification from their contracting officers on what—if any—compliance obligations they might have.  We will continue to monitor and provide updates on these developments.

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Co-Chair, Global Employment and Labor Practice

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

Andrew R. Turnbull

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

Another Ticking Clock: Additional District Court Preliminarily Enjoins EO 14042 | Increasing Need for OMB Update on GA Court Clarification Order

On January 27, 2022, the U.S. District Court for the District of Arizona joined the growing list of courts that have preliminarily enjoined Executive Order 1404

As a result of the U.S. District Court for the Southern District of Georgia’s latest order, which confirms the nationwide preliminary injunction of Executive Order 14042 (“EO” or “EO 14042”) applies only to the “vaccine mandate,” federal contractors must solve yet another puzzle.  That is, are they covered by any statewide preliminary injunctions, or only the nationwide preliminary injunction?  This question can be further complicated by a contractor—or one of its subcontractors—performing work in more than one State.Contractors exclusively covered by the nationwide preliminary injunction must now comply with all implementing guidance unrelated to the vaccine mandate, including the testing, masking, and social distancing requirements provided in the Safer Federal Workforce Task Force (“Task Force”) Guidance, FAQs, and agency memoranda.  Contractors performing work in States covered by another preliminary injunction, however, must review the scope of that injunction to determine their compliance obligations, which are summarized as follows:<ul><li>The E.D. Kentucky order, which applies in Kentucky, Ohio, and Tennessee, extends only to the vaccine mandate. The plaintiff States alleged injury-in-fact with regard to the vaccine mandate, and the order focused only on that mandate. The language of the order’s conclusion also specifically identifies the vaccine mandate and not the Task Force Guidance.</li><li>Likewise, the E.D. Missouri order, which applies in Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming, extends only to the vaccine mandate. The plaintiff States specifically alleged that the “contractor mandate ostensibly preempts state statutes regarding vaccine mandates.”</li><li>The M.D. Florida order, which applies only in Florida, is broader and extends to “any contract clause requiring compliance with the COVID Safety Protocols for Federal Contractors described in [EO 14042],” which includes the Task Force Guidance, for work performed in the State of Florida. The order also prevents the federal government from denying Florida government contracts based on its refusal to agree to such a clause.</li><li>The W.D. Louisiana order, which applies in Indiana, Louisiana, and Mississippi, is also broader in the scope of its prohibition, but it applies to a much more limited set of contractors. This order “enjoin[s] the national government from enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement . . . between the Plaintiff States or their agencies and the national government” (emphasis added).  Thus, the preliminary injunction bars enforcement of all requirements of the Task Force Guidance, not just the vaccine mandate, and the contract clause that incorporates those requirements.  But it does not apply to all contractors.  Instead, the preliminary injunction applies only to federal contracts held by the plaintiff States and their agencies, and thus by extension to contractors performing subcontract work under federal contracts held by those States and agencies.</li></ul>In short, the Kentucky and Missouri court orders preliminarily enjoin the vaccine mandate only (and thus mirror the Southern District of Georgia’s nationwide injunction).  The Florida preliminary injunction applies to any contract clause requiring compliance with the COVID Safety Protocols provided in EO 14042, which include the vaccination, testing, masking, and social distancing requirements in the Task Force Guidance (see Section 2 of <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/">the EO</a>).  And the Louisiana order applies to the entirety of the Task Force Guidance and the FAR Memo, but it affects only contracts, grants, and other agreements between the federal government and the plaintiff States, which would include any subcontracts thereunder.  (Additional information on the status of these lawsuits is provided in <a href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html?utm_source=publication&utm_medium=email">our previous client alert</a>.)Finally (for now), it is worth noting that contractors seeking injunctive relief from the remaining EO 14042 requirements may face resistance from the courts.  In a January 24, 2022 order, the U.S. District Court for the Middle District of Florida denied the plaintiffs’ motion for emergency injunctive relief because the contractors waited months after the issuance of EO 14042 to file their case, and two days after the vaccination deadline.  The court also concluded that “whatever threat Plaintiffs faced from the enforcement of those Executive Orders has subsided, at least for the time being,” as both EO 14042 and Executive Order 14043 (the federal employee vaccine mandate) are already subject to nationwide preliminary injunctions.

Patchwork Preliminary Injunctions: Interpreting Contractor Compliance Obligations under EO 14042

As a result of the U.S. District Court for the Southern District of Georgia’s latest order, which confirms the nationwide preliminary injunction of Executive Or

Patchwork Preliminary Injunctions: Interpreting Contractor Compliance Obligations under EO 14042

On Friday afternoon, the U.S. District Court for the Southern District of Georgia, which had earlier issued a nationwide preliminary injunction of Executive Order 14042, made clear that the injunction applies only to the vaccine mandate and not to other COVID-related requirements. (We previously reported on the nationwide injunction in our <a href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html">client alert</a>.)  The order came in response to the federal government’s motion to clarify the following: Defendants request clarification of whether the preliminary injunction is limited to enforcement of the Safer Federal Workforce Task Force’s vaccination requirements, of whether it also prevents federal agencies from enforcing requirements related to masking and physical distancing and the identification of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.<a id="_ftnref1" name="_ftnref1" href="#_ftn1" class="anchor">[1]</a>In response, the court held that the nationwide preliminary injunction applied only to the vaccine mandate, a limitation it deemed “evident from the language the Court used—as well as the language the Court noticeably did not use—in issuing the injunction” (emphasis in original). The court further noted that its “Order on the Motion for Preliminary Injunction did not reference, discuss, or analyze any of the other COVID-19 safety‑related requirements.”<a id="_ftnref2" name="_ftnref2" href="#_ftn2" class="anchor">[2]</a> The court’s order on Friday does not explain why its finding that the government lacked statutory authority to enforce the vaccine mandate does not also extend to the other requirements. In any event, the important point for now is that those requirements are not covered by the court’s nationwide preliminary injunction.Contractors performing work in states covered by one of the other (statewide) preliminary injunctions, however, should closely review the language of those orders to confirm the scope of their compliance obligations. Contractors performing work outside those states must comply with the balance of Executive Order 14042 and its implementing guidance, including the testing, masking, and social distancing requirements provided in the Safer Federal Workforce Task Force Guidance, FAQs, and agency implementing memoranda. Contractors unsure of their obligations should reach out to counsel or their cognizant contracting officer for additional clarification.<a id="_ftn1" name="_ftn1" href="#_ftnref1" class="offset">[1]</a> Defs.’ Emergency Mot. for Stay Pending Appeal and for Immediate Administrative Stay at 12, State of Ga., et al. v. President of the U.S., et al., No. 21-163 (S.D. Ga. Dec. 9, 2021), ECF No. 97.<a id="_ftn2" name="_ftn2" href="#_ftnref2" class="offset">[2]</a> Order at 4, State of Ga., et al. v. President of the U.S., et al., No. 21-163 (S.D. Ga. Jan. 21, 2022), ECF No. 112.

Double-Take: Nationwide Preliminary Injunction of EO 14042 Limited to “Vaccine Mandate” Only

On Friday afternoon, the U.S. District Court for the Southern District of Georgia, which had earlier issued a nationwide preliminary injunction of Executive Ord

Double-Take: Nationwide Preliminary Injunction of EO 14042 Limited to “Vaccine Mandate” Only

The fast and furious Jenga game over when and with which federal vaccine mandate a company must comply might finally have reached a turning point. On January 13, 2022, the Supreme Court issued dual per curiam opinions in which it blocked the Occupational Safety and Health Administration’s (“OSHA’s”) emergency temporary standards (“ETS”), otherwise known as the “vaccine or test” mandate, and lifted the injunction of the vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”), as further reported on in this <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html">client alert</a>. Those decisions may signal an ominous fate for Executive Order 14042 (“EO” or “EO 14042”) and the federal contractor vaccine mandate, which has now shambled past the January 18, 2022 vaccination deadline. Nevertheless, contractors should continue to track developments in all major cases, particularly including the U.S. Court of Appeals for the Eleventh Circuit’s review of the nationwide preliminary injunction, as well as any case challenging the EO in the Supreme Court. This alert accordingly provides updates on the Safer Federal Workforce Task Force (“Task Force”) FAQs, five major cases in which district courts have issued preliminary injunctions, and key takeaways from the Supreme Court’s recent federal vaccine mandate opinions.Read more in our <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html">client alert</a>.

Updates to Task Force Guidance | District Courts Follow Different Reasoning to Hold Executive Order 14042 Invalid: Circuit Courts to Determine Which Arguments Succeed or Fail

The fast and furious Jenga game over when and with which federal vaccine mandate a company must comply might finally have reached a turning point. On January 13

Updates to Task Force Guidance | District Courts Follow Different Reasoning to Hold Executive Order 14042 Invalid: Circuit Courts to Determine Which Arguments Succeed or Fail

Protests & Litigation

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042), temporarily suspending the EO’s vaccination, masking, and social distancing requirements and all implementing guidance. Although the Georgia court’s nationwide injunction likely will remain in effect for the immediate future, federal contractors and subcontractors should consider continuing some efforts to prepare for compliance with the EO in case the injunction is overturned. They should balance such efforts with the patchwork of seemingly conflicting state and local mandates, including mandatory masking and social distancing laws on the one hand and anti-vaccination laws on the other hand.To learn more, read our <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/211208-georgia-court-issues-nationwide-injunction.html">client alert</a>.

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042),

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

Labor & Employment

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO” or “EO 14042”). In case you missed it, we issued two prior alerts on some of these developments, the latest of which discusses the Occupational Health and Safety Administration (OSHA) November 4, 2021 emergency temporary standards (ETS) currently stayed by the U.S. Court of Appeals for the Fifth Circuit. These standards impose similar—but separate—COVID-19 vaccination and testing requirements for companies with 100 or more employees, regardless of whether or not the companies are federal contractors.Read the <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate.html">full client alert</a>.