- On December 7, 2021, a federal judge in the U.S. District Court for the Southern District of Georgia issued a
at national scale preliminary injunction blocking government enforcement of “vaccination mandate” for federal landowners.
- In issuing the preliminary injunction, the judge determined that the plaintiffs would likely succeed on the merits of their claim that President Joe Biden exceeded his authority under federal Property and Administrative Services Act when the publication of decree 14042.
- The federal government is enjoined, while the action is in progress or until further notice from the court, to apply the vaccination mandate to all “Federal contractors and sub-contractorsin all covered contracts in any state or territory of the United States of America. “
- Unlike the injunction issued on November 30, 2021 by the U.S. District Court for the Eastern District of Kentucky, which was limited to Kentucky, Ohio, and Tennessee, this injunction applies.
at national scale. The government is expected to appeal the judge’s order to the U.S. Court of Appeals for the Eleventh Circuit. (The government has already filed a notice of appeal in the Kentucky case.)
On December 7, 2021, U.S. District Court Judge R. Stan Baker for the Southern District of Georgia issued a preliminary injunction, ending the government’s application of the vaccine mandate to all federal owners and their sub- treating people across the country.
As noted in a previous alert from Holland & Knight, the federal contractor’s vaccine mandate stems from Executive Order 14042, ensuring adequate COVID safety protocols for federal contractors, which mandated the creation of a FAR (Federal Acquisition Regulation) requiring federal contractors and sub-contractors to follow guidelines issued by the Safer Federal Workforce Task Force. The working group guidelines, as amended, require employees of federal contractors and contractors to be “fully immunized” by January 18, 2022 (meaning that employees must receive either the Johnson vaccine & Johnson single dose, i.e. the second dose of Pfizer vaccine or Moderna vaccine by January 4, 2022). This requirement is now “pending” for all federal owners.
The court issued this opinion in response to a lawsuit filed in late October by several states in Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; various government agencies and several Georgian universities.
The plaintiffs argued, among other things, that the Presidential Executive Order exceeded its authority under the Federal Property and Administrative Services Act (FPASA), 40 USC Â§Â§ 101â126, a law designed to promote economy and efficiency. in the federal contracting process. The court concluded that the plaintiffs would likely succeed on the merits of their claim.
The following conclusions were decisive for the court’s decision:
- The president probably overstepped his authority under FPASA. Citing concerns behind the âbig issuesâ doctrine – the idea that Congress does not leave massive economic and social policies to executive regulation alone – the tribunal acknowledged that FPASA confers âsome authorityâ on government, but estimated that OE 14042 âgoes well beyondâ The objective of FPASA is to address administrative and managerial issues in order to promote efficiency and economy in public procurement. District Court for the Eastern District of Kentucky, the court noted here that FPASA had never been used before to enact public health measures or created such a burden on contractors. concluded that, according to the government’s reasoning – “that, [t]o Anyone who has experienced the COVID-19 pandemic and the resulting economic turmoil, the link between reducing the spread of COVID-19 and the economy and efficiency is evident “- FPASA would be interpreted as enabling the President “to impose virtually any type of requirement” on entrepreneurs.
- Fulfilling the mandate would place an “extreme economic burden” on government contractors. The court credited testimony from witnesses describing “the incredibly long processes” that government contractors undertook to comply with the mandate and to track which employees were fully vaccinated. The court also expressed concern about the economic disruption contractors would face as they assessed whether to compete for government contracts and determined what to do with employees who failed to provide evidence. vaccination.
- The court refused to respond to the plaintiffs’ allegations that the warrant was unconstitutional and violated the doctrine of non-delegation and the law on administrative procedure, noting that resolution of these issues was not necessary given the court’s ruling that the President likely exceeded his authority under FPASA.
As with the Kentucky ordinance, the Georgia warrant order is not preliminary and the federal government is likely to appeal, as it did in response to the injunction granted by the United States District Court for the Eastern District of Kentucky.
What does the injunction mean for federal landlords – especially those who have already agreed to lease amendments incorporating FAR 52.223-99?
The Georgia ordinance ordered the government “for the duration of [the] action or until further notice by [the] Court, to apply the vaccination mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America. (Emphasis added.)
Curiously, the ordinance simply specifies that the âvaccine mandateâ is required. But, as noted, the âvaccine mandateâ is part of the Working Group guidelines, which are incorporated into covered contracts and leases in accordance with FAR 52.223-99 (c):
(c) Compliance. The Contractor must comply with all guidelines, including guidelines transmitted through Frequently Asked Questions, as amended during the performance of this contract, for the workplaces of the Contractor or Subcontractor published by the Safer Federal Workforce Task Force (Task Force Guidance) at https: / www. saferfederalworkforce.gov/contractors/
Thus, for lessors who have already accepted a lease modification incorporating FAR 52.223-99 – which the General Services Administration (GSA) previously claimed to be a “obligatory“Modification and urged donors to accept, otherwise the risk of adverse action – compliance with the clause (and therefore the vaccine’s mandate) would appear to be a contractual obligation, notwithstanding the preliminary injunction.
GSA, apparently acknowledging the ambiguities in the command, issued the following advice:
Update: On December 7, 2021, the United States District Court for the Southern District of Georgia issued a preliminary injunction [PDF – 544 KB] which interrupts the application of the vaccination mandate for contractors and subcontractors at national scale.
What does it mean?
As of today, the federal government is prohibited from applying a vaccination mandate to contractors and subcontractors in all states and territories of the United States. GSA contracting officers will not take any action to enforce the vaccination requirements of FAR clause 52.223-99 ensuring adequate COVID-19 safety protocols for federal contractors in any contract or contract-like instrument.
What does ânot applyâ the clause mean?
1. The employees of the contractor and sub-contractors are not required to comply with the vaccination mandate of the Safer Federal Workforce Task Force Guidance
2. Contractors will continue to be eligible for new contracts, new orders, options and extensions even if they have not agreed to follow FAR 52.223-99.
Conclusion and takeaways
The position of the GSA appears to be that the government cannot enforce the compulsory vaccines of FAR 52.223-99 – leaving open the possibility of applying the masking and physical distancing requirements of the working group guidelines (at least for leases which are already subject to the clause).
Regarding the second point – “Contractors will continue to be eligible for new contracts …” – this appears to be a reversal from GSA’s previous position, in which GSA told donors that acceptance of an amendment incorporating FAR 52.223-99 was “obligatory“and that their contracts / leases would not be eligible for options / extensions / renewals until the clause has been accepted.
Based on the GSA guidelines and in accordance with the Georgia ordinance, GSA donors have a reasonable basis for not meeting the vaccination deadline of January 18, 2022 imposed by the working group guidelines.
Donors should also keep in mind:
- Several other lawsuits challenging the vaccine’s mandate continue to make their way in federal district courts across the country. With this order, the contractors are not required, for the moment, to comply with the mandate. But entrepreneurs must always be prepared for the possibility of a successful appeal and a jurisdictional patchwork of enlisted and unjointed states.
- The working group has already released updated guidelines, extending the vaccine deadline from December to January. And the Office of Management and Budget (OMB) issued a revised determination, revoking a less solid earlier determination and providing additional support for the mandate. As the US Department of Justice argues challenges to the mandate in court, the Task Force and the OMB can take more action in hopes of strengthening the sustainability of the mandate.
Holland & Knight will continue to monitor and provide updates as they become available.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.