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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
based on its August 26, 2022, decision. 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.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
situations.
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