The Most Significant Procedural and Statutory Challenges See our recent blog post for a discussion of the Task ForceвЂ™s most recent round of new guidance. This means that once a government contractor is subject to the contract clause, it cannot be certain what its obligations will be because the Task Force, at least thus far, issues regular updates. The FAR provision, which was not published for notice and comment, requires that government contractors comply with the Guidance, including information in the Frequently Asked Questions, as amended throughout the contractвЂ™s period of performance. The FARC directed agencies to issue deviations to allow for immediate use of the new contract provision. As directed, the Federal Acquisition Regulatory Council (FARC) then issued a new FAR provision well in advance of the October 8 deadline set forth in the EO. The director made that determination, finding in a cursory statement lacking any supporting analysis that вЂњhese safeguards will decrease the spread of SARS-CoV-2, the virus that causes COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal GovernmentвЂќ and the Guidance was then issued on September 24. Those measures were to be published only if the director of the Task Force determined, under a delegation of the presidentвЂ™s authority under the Federal Property and Administrative Services Act that the safety measures would вЂњpromote economy and efficiency in Federal contracting if adhered to by Government contractor and subcontractors.вЂќ As we discussed in a previous blog post, rather than including the workplace safety requirements, the EO required that the Safer Federal Workforce Task Force (the Task Force), an ad hoc, multi-agency body with no regulatory authority, develop and publish the workplace safety measures. In considering the challenges, it is important to consider the unusual path from the Executive Order 14042 (EO) issued on September 9 to the contract provisions issued beginning on September 30.

Also, they all make facially compelling procedural and substantive arguments that Executive Order 14042, the OMB Guidance, and the government contract provisions are unlawful. In addition, each complaint seeks declaratory and injunctive relief but as of November 3 it appears that only Florida has filed a motion for a preliminary injunction. While there are multiple differences between the complaints, there is a high likelihood that the states have established standing to challenge the government contractor mandate as they all have agencies or other entities that are party to federal contracts and contract-like instruments. The following day, ten more states вЂ“ Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming вЂ“ filed a complaint in the Eastern District of Missouri ( the Missouri Complaint) a further seven states вЂ“ Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia вЂ“ filed suit in the Southern District of Georgia ( the Georgia Complaint) Texas filed a complaint in the Southern District of Texas ( the Texas Complaint). On October 28, the State of Florida filed suit in the Middle District of Florida ( the Florida Complaint).

The complaints raise very significant procedural and substantive questions about the legality of the government contractor vaccine mandate. While some have suggested that these states, led by Republican governors, filed the suits for political reasons, it would be a mistake to discount them. At the end of October 2021, four complaints were filed by almost 20 states challenging the government contractor vaccine mandate.

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