UPDATED AS OF 10/26/2022:

Changing course after its August 31 announcement that it would not enforce the federal government contractor vaccination mandate absent further written notice, on October 14, 2022, OMB and the Task Force published an update stating that they plan to issue at least three new guidance documents with an eye toward potentially resuming enforcement of the mandate:

  1. First, OMB plans to notify Federal agencies about compliance with applicable injunctions and whether contract clauses implementing the mandate should be included in new solicitations and contracts.
  • Second, the Task Force plans to update its November 2021 workplace safety protocols guidance related to the mandate.  The updated guidance will provide a timeline for any implementation long enough to ensure that covered contractors can come into compliance as needed.
  • Third, OMB will review the safety protocols guidance and make a determination on whether it promotes economy and efficiency in government contracting.  If OMB makes such a determination, it will provide additional guidance to agencies on timing and considerations for providing written notice to contractors regarding enforcement, except as barred by any injunction.

On October 19, 2022, OMB issued the first of these three guidance documents.  The two-page memorandum reiterates that “at this time 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 [the vaccine mandate].”  OMB’s memo further provides that: (a) for existing contracts that already contain the contractor vaccine mandate clause, agencies should continue NOT to enforce those provisions unless/until OMB issues future guidance; (b) for existing contracts that do not contain the contractor vaccine mandate clause, at this time agencies should NOT to modify the contract to incorporate the clause at this time, even when renewing or extending the contract; and (c) for new solicitations, at this time agencies should NOT include the contractor vaccine mandate clause.

These updates emphasize that federal agencies should not take steps to require contractors to come into compliance or to enforce any contract clauses implementing the mandate unless and until the third guidance document is published.  The upshot of this announcement is that the administration appears set to pursue some limited, forward-looking implementation of the contractor vaccine mandate, although only after a series of regulatory steps have been completed and contractors have been given time to come into compliance.  We will continue to monitor for developments, including the issuance of the forthcoming second and third updates from the Task Force and OMB, and provide updates here.

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UPDATED AS OF 9/1/2022: On August 31, 2022, the Safer Federal Workforce Task Force officially announced that the Federal Government will not enforce the federal government contractor vaccination mandate, absent further written notice. The Task Force announcement is posted on its website here.

An analysis of the Eleventh Circuit decision that preceded this announcement is below.

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On Friday, August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld but narrowed a preliminary injunction currently in place against the Biden Administration’s COVID-19 vaccine mandate for federal government contractors (“the mandate”).  As discussed in our previous post, in December 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction blocking the mandate.  The Eleventh Circuit’s decision drops the nationwide injunction, and now blocks enforcement of the mandate only with respect to the plaintiffs in the case: Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the construction trade group Associated Builders and Contractors, Inc. 

Although narrower in scope, the decision is certainly a blow to the mandate.  The Government already had placed a moratorium on enforcing the mandate, and the Eleventh Circuit’s ruling, which found that the plaintiffs were at least reasonably likely to succeed on the merits, could dampen the administration’s enthusiasm for attempting to restart enforcement of the mandate.

However, the decision leaves open a number of questions about the future of the mandate, many of which depend on how aggressively the Government pursues the matter.  The upheld-but-narrowed injunction now sits alongside a patchwork of other state-specific injunctions issued by various other federal district courts, including the District of Arizona, Eastern District of Kentucky, Western District of Louisiana, Eastern District of Missouri, and Middle District of Florida.  In theory, the Government could seek to re-impose the mandate in jurisdictions not covered by these existing injunctions, though that strikes us as unlikely given a range of political and practical considerations.  The Government also could pursue appeals of the decisions from other federal district courts, thereby preserving the possibility of a circuit split and even an eventual decision by the Supreme Court. 

But perhaps most interesting, the Eleventh Circuit decision poses substantial questions about the ability of the executive branch to regulate federal contractors.  The executive has long been considered to have broad powers to regulate contractors, but Friday’s decision suggests a limit on that authority, at least under the Federal Property and Administrative Services Act (referred to in the decision as the “Procurement Act”).  Whether (and how) the Eleventh Circuit’s decision affects other efforts to regulate the contracting community is an open question that will need to be fleshed out in future cases.  In the meantime, we will continue to monitor for developments and provide updates here.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Washington, DC office. She is a member of the Government Contracts Practice Group, advising clients across a broad range of government contracting issues. She also maintains an active pro bono practice.