EO 14042 Update 17.0 – Preview Of Updated OMB Guidance – Government Contracts, Procurement & PPP

In an “update” that reads more like a teaser to a B
Movie, the OMB on Friday advised that it will have
more guidance on EO 14042 for us soon. What precipitated this
official warning that more guidance would be forthcoming? Well, it
seems that tomorrow (October 18, 2022) OMB expects the Southern
District of Georgia to narrow the nationwide injunction prohibiting
enforcement of EO 14042. This is the procedural step we’ve all
been waiting for since the 11^th Circuit issued its decision on
August 26, 2022. In anticipation of the narrowed injunction, OMB
announced it expects to release three new guidance documents in the
near future:

1. Direction to Contracting Officers on “whether” to
   include FAR 52.223-99 (Ensuring Adequate Covid-19 Safety Protocols
   For Federal Contractors) in new solicitations and contract
   documents.




2. Revised safety protocols for covered contractor and
   subcontractor workplace locations, including an updated timeline
   for implementation.




3. Enforcement guidance for Federal agencies.

Though OMB’s “update” provides only a sneak peek
at what’s to come, it did include some interesting nuggets.
Here are our takeaways:

• OMB describes the first forthcoming document as guidance on
  “whether” to include FAR 52.223-99 in new
  contracts/solicitations. However, we think the guidance will turn
  out to be when to include the FAR clause, rather than
  whether to include the FAR clause. As you may recall from
  our SheppardTracker, Contracting Officers will be
  able to enforce EO 14042 only in certain states, and therefore
  (theoretically) should include FAR 52.223-99 only in contracts
  where enforcement is not prohibited. Of course, contract
  administration at that level of detail would be a nightmare, and we
  wouldn’t be surprised if OMB tries to ease the burden on
  Contracting Officers by directing that the clause be included
  everywhere and leaving it to the contractors to figure out if it is
  self-deleting or not. It’ll be interesting to see what approach
  OMB recommends.




• The OMB notice states that updated safety protocols will be
  released soon, in addition to a revised implementation timeline.
  Interestingly, EO 14042 itself does not mandate that contractor
  employees be vaccinated – only OMB’s protocols include the
  vaccination requirement. Given the Biden Administration’s
  recent easing of Covid-19 restrictions, and the CDC’s
  relaxation of guidelines as more Americans have become vaccinated,
  it’s possible OMB materially alters the protocols released on
  September 24, 2021 (perhaps even to remove the requirement that
  contractor employees be vaccinated). This is the document we’re
  anxious to see.




• As to the timeline, in the original protocols released in
  September 2021, OMB gave contractors about 10 weeks to comply.
  Subsequently, OMB delayed the compliance deadline another 4 weeks
  to align with the OSHA ETS (remember that one?!). If OMB intends to
  rely on the existing protocols (and that’s a big
  “if”), we’d expect a similar timeline here. Of
  course, there are a number of procedural steps OMB must take even
  before releasing these three guidance documents, but factoring in
  time for those steps, we anticipate a compliance deadline in early
  2023.




• Whatever the updated protocols end up requiring, OMB remains
  intent on enforcing the FAR clause against contractors to the
  extent it can. Interestingly, OMB noted it anticipates providing
  guidance to Federal agencies on the “timing and
  considerations” for issuing written enforcement notices to
  contractors. To us, that implies Contracting Officers will have
  some discretion in enforcing FAR 52.223-99, but that at least some
  enforcement is expected.

Importantly, until OMB releases all three documents, the status
quo remains. Here’s the specific direction to Contracting
Officers:

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.

So, where do we go from here? We understand a significant number
of companies have eased (or even eliminated) internal vaccination
requirements. Given the possibility OMB materially alters the
existing protocols, we don’t think it makes sense to take any
precipitous action just yet in any direction (e.g., reinstating a
vaccination requirement or beginning to execute your 2021 EO 14042
compliance plan). The key here will be the updated protocols (the
second document OMB says it soon will release) – once OMB releases
these revised protocols, then contractors will be able to develop
an updated compliance plan. Until then, it wouldn’t hurt to
dust off your 2021 plan, assess the progress you made prior to the
December 2021 injunction, as well as any actions taken by your
company in the interim that may impact your compliance with EO
14042.

Also, although action seems imminent from the Southern District
of Georgia, keep in mind that EO 14042 continues to be litigated in
other courts across the county, and any modifications to those
other injunctions will impact compliance with the FAR
clause. We’re tracking the various dockets, and will keep you
apprised as the (B Movie) saga continues to unfold.

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