On October 14, 2022, the Safer Federal Workforce Task Force (“Task Force”) published yet another update for Federal contractors regarding the Federal Government’s approach to enforcing Executive Order 14042 (“EO 14042”) in light of the “potential narrowing of the existing nationwide injunction on October 18, 2022,” resulting from the U.S. Court of Appeals for the Eleventh Circuit’s forthcoming mandate. The announcement indicates the Task Force and the Office of Management and Budget (OMB) will issue “at least three guidance documents . . . following any narrowing of the nationwide injunction,” which it breaks out as follows:
- Guidance Document #1: OMB will notify Federal agencies about “compliance with applicable injunctions and whether contract clauses implementing EO 14042 should be included in any new solicitations and contracts” (emphasis added).
- Guidance Document #2: The Task Force will begin updating its guidance “regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations,” including “a timeline for implementation to ensure that covered contractors and subcontractors are able to come into compliance with any COVID-19 safety protocols specified by the Task Force that they are not presently following” (emphases added). The OMB Director will, in turn, review the updated guidance and make a determination regarding whether it promotes economy and efficiency in Federal contracting, which will be published in the Federal Register.
- Guidance Document #3: “If the OMB Director makes such a determination, OMB will provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement of contract clauses implementing Executive Order 14042, except as barred by any applicable injunctions” (emphases added).
The announcement then emphasizes that “Until OMB issues the third guidance document described above, agencies should not: (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.” The Federal Government’s decision to take a more measured approach is generally consistent with a recent Government filing in at least one district court case, which is perhaps grounded in a new strategy of ensuring that the implementation of any new guidance follows the requirements of administrative law to a tee should that new guidance be challenged in court.
What does this mean for Federal contractors and subcontractors?
The mandate is expected to issue tomorrow, October 18, 2022. Once that occurs, Federal contractors and subcontractors should closely monitor the Task Force website and Federal Register for updates from both the Task Force and OMB Director. Although the exact measures and compliance obligations that the Federal Government will choose to implement and enforce remain uncertain, and will likely remain so over the coming weeks or months, what is clear is that the Federal Government will provide a timeline that allows Federal contractors and subcontractors to come into compliance.
In the meantime, Federal contractors and subcontractors should take the following prudent actions over the coming months to best prepare for what may come:
- Carefully evaluate the language of new and forthcoming solicitations, including amendments thereto, to determine whether compliance with EO 14042 is or will be required, and consider submitting questions to agencies about whether the solicitation is covered by EO 14042;*
- Review contract clauses in all newly awarded or soon-to-be awarded contracts and subcontracts for a clause implementing compliance obligations under EO 14042;*
- Track and audit all written communications or other correspondence from Federal agencies and prime contractors regarding EO 14042, including about any implementing contract clauses and agency guidance or memoranda;
- Identify all contracts and subcontracts that presently include a contract clause implementing EO 14042;
- Determine whether those contracts and subcontracts are performed in States covered by a preliminary injunction, recognizing the patchwork of preliminary injunctions that will soon fully take effect;
- Assess the scope of the preliminary injunction applicable in each such State; and
- Identify what compliance measures your company has already taken or otherwise implemented, including whether an implementing clause has been flowed down to covered subcontracts.
*OMB’s directives in Guidance Document #1 will indicate whether these measures are necessary.
Out of an abundance of caution, and pending the specific directives in Guidance Document #1, Federal contractors and subcontractors can also assess whether and which contracts and subcontracts are subject to Executive Order 14042 based on the language of the Executive Order itself (note Section 5 thereof and our previously issued client alert discussing how requirements can be incorporated into contracts). This extra precautionary measure can help to prepare for the possibility that Federal agencies will incorporate an implementing clause into additional, existing covered Federal contracts, which may subsequently flow down to subcontracts, if the Federal Government ultimately proceeds full steam ahead with enforcing EO 14042.
For additional information, all of our previously issued client alerts covering EO 14042 are available on the following web page: https://govcon.mofo.com/topics/coronavirus.