Last week, the Biden administration updated its position regarding enforcement of the COVID-19 vaccine mandate for federal contractors in response to the nationwide preliminary injunction issued by a U.S. District Court judge in Georgia. In our previous post on this topic, we questioned whether the administration would still attempt to enforce the vaccine mandate for contracts that already include the clauses mandating vaccinations. Thankfully, the administration resolved much of that uncertainty in its updated position by confirming that it will generally not enforce the mandate. However, it stopped short of a blanket policy of non-enforcement.
Continue Reading Biden Administration Updates Contractor Vaccine Mandate Guidance in Response to Nationwide Preliminary Injunction
Jeffrey E. Jakob
Jeff assists clients in a wide range of government contracting matters, including contracts, bid protests, and small business procurement issues. He also represents government contractors in all stages of litigation, including litigating claims under the Contract Disputes Act (CDA).t construction litigation experience and counsels owners, developers, general contractors, subcontractors, and suppliers in construction-related disputes. He has handled all types of dispute resolution, including litigation in state and federal courts as well as arbitration and mediation.
Vaccine Mandate for Federal Contractors on Hold
On December 7, 2021, a federal judge issued a nationwide injunction that, for the time being, halts the COVID-19 vaccine mandate for federal contractors. The injunction is a preliminary injunction, the purpose of which is to preserve the status quo until a final judgment can be reached. This means the injunction will stay in place until the court reaches a final ruling on the merits of the case.
Continue Reading Vaccine Mandate for Federal Contractors on Hold
DOD Announces CMMC 2.0; Cancels Rollout of CMMC 1.0
On November 4, 2021, the Department of Defense (DOD) announced it is revamping the Cybersecurity Maturity Model Certification program. The changes are intended to make the program more streamlined and flexible, which, in turn, will make it easier (and cheaper) for contractors to implement. Details of the revised program are limited, but some of the highlights include:
- Fewer Levels: CMMC 2.0 will have only three levels of certification rather than five, and they will align more closely with existing cybersecurity standards. For example, Level 2 will align with NIST SP 800-171, the standard that applies when contractors handle controlled unclassified information.
Continue Reading DOD Announces CMMC 2.0; Cancels Rollout of CMMC 1.0
New Guidance on the Vaccination Mandate for Federal Contractors
In our last post, we detailed President Biden’s Executive Order 14042 regarding vaccination requirements for government contractors. The order made clear that a new clause requiring vaccinations would be included in new contracts in the near future, but questions remained about which employees would ultimately be subject to the requirements. On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued guidance that answered many of those questions.
Continue Reading New Guidance on the Vaccination Mandate for Federal Contractors
New COVID-19 Vaccination Requirements for Government Contractors
Government contractors and subcontractors will need to learn—quickly–how to navigate new COVID-19 requirements. On September 9, 2021, President Biden issued an executive order (the order) imposing COVID-19 vaccine and testing requirements on government contractors and subcontractors. The new requirements will start appearing in contracts in a matter of weeks. Below are the key points that federal contractors need to know.
How will the vaccine requirement be implemented?
The order directs all executive departments and agencies to begin including a new and yet unwritten clause in solicitations, contracts, and contract-like instruments. The clause must state that the contractor will comply with all guidance issued by the Safer Federal Workforce Task Force (Task Force) that pertains to a contractor or subcontractor’s workplace locations.Continue Reading New COVID-19 Vaccination Requirements for Government Contractors
Complying with the Government’s Restrictions on Foreign Telecommunications Equipment
Government contractors are facing a significant compliance burden thanks to three new FAR provisions that impose restrictions on contractors who supply or use Chinese telecommunications equipment or services.
Generally speaking, the new FAR provisions, 52.204-24, 52.204-25, and 52.204-26, are designed to ensure that contractors do not supply any covered equipment or services to the government (the “supply restriction”) or use any covered equipment or services in their business (the “use restriction”). Covered equipment or services include any telecommunications equipment or services from companies linked to the Chinese government, such as Huawei (the world’s largest telecom manufacturing company) and ZTE, as well as any subsidiaries or affiliates of such companies.
Continue Reading Complying with the Government’s Restrictions on Foreign Telecommunications Equipment
DOD Releases Class Deviation and Related Guidance Implementing Section 3610 of the CARES Act
The Coronavirus Aid, Relief, and Economic Surety (CARES) Act was enacted on March 27 to provide relief from the effects of the COVID-19 pandemic. Section 3610 of the CARES Act authorizes agencies to reimburse federal contractors for leave provided to employees who cannot work as a result of the COVID-19 public health emergency. As we explained in a previous blog post, there are many questions as to how Section 3610 will be implemented. Those questions are being answered on a rolling basis as agencies continue to release information. Since our last post, the Department of Defense (DOD) issued a class deviation as well as a FAQ document.
Continue Reading DOD Releases Class Deviation and Related Guidance Implementing Section 3610 of the CARES Act
Bidding Federal Work During the Coronavirus Crisis
The coronavirus epidemic has disrupted our world in ways we could not have imagined a few weeks ago. In the midst of the crisis, the federal government is trying to do everything possible to keep businesses afloat, and that includes the continuation of current federal projects. We recently published a blog post addressing steps contractors should consider in order to protect their rights under contracts they are currently performing, but there is also a question about whether contractors should bid new projects. That is the focus of this article.
Almost all federal construction and supply contracts are solicited on a firm fixed-price basis. This type of contract is designed to provide the greatest opportunity for reward, coupled with the attendant risk of bidding incorrectly and incurring additional costs. The cost estimates that contractors must prepare before submitting a bid or proposal require a reasonable degree of foreseeability and certainty in the marketplace. In times of significant inflation or a shortage of resources as occurred during the energy crisis of the 1970s, it is difficult to predict the cost of materials for the life of a project. What we now face is far more disruptive. We are in the midst of a pandemic that is making it impossible to predict the availability, at any price, of labor, equipment, and materials in the weeks and months ahead. Predicting prices under those circumstances has nothing to do with sound business judgment – it requires a crystal ball.
Continue Reading Bidding Federal Work During the Coronavirus Crisis
New Cybersecurity Requirements Will Impact All DOD Contractors and Their Subcontractors
On January 30, 2020, the Department of Defense (DOD) released Version 1.0 of its Cybersecurity Maturity Model Certification (CMMC). Under the CMMC program, every contractor who works for the DOD, including subcontractors, will need to be certified at one of five levels. All DOD solicitations will specify which certification level is required for the contract, and contractors who do not have that certification will be ineligible for the contract. In order to obtain the certification, contractors will undergo an assessment by an independent third-party organization.
Continue Reading New Cybersecurity Requirements Will Impact All DOD Contractors and Their Subcontractors
Department of Defense Issues FAR Deviation for Limitations on Subcontracting
On December 3, 2018, the Department of Defense (DoD) issued a deviation from the FAR’s self-performance requirements, which applies to subcontracting limitations on contracts set aside for small businesses. Although the changes to subcontracting limitations were mandated by the 2013 National Defense Authorization Act (yes, 2013), implementation has been slow and piecemeal. The Small Business Administration (SBA) did not implement the changes until June 2016, and although the FAR Council recently issued a proposed rule that would bring the FAR into compliance, the FAR has not officially caught up. In the meantime, the discrepancy between the FAR and the SBA regulations has caused headaches for contractors who must decide whether to comply with the FAR, the SBA regulations, or both. The DoD’s deviation will bridge the gap for all DoD contracts until the FAR catches up.
Continue Reading Department of Defense Issues FAR Deviation for Limitations on Subcontracting