December 15, 2021

By: G. Scott Walters, Partner, Smith, Currie & Hancock LLP. 

On December 7, 2021, the United States District Court for the Southern District of Georgia issued a 28-page order enjoining nationwide the enforcement of President Biden’s Executive Order 14042 mandating that all federal contractors and subcontractors working on covered federal contracts provide proof of vaccination.  In Georgia v. Biden, No. 1:21-cv-163, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021), Judge R. Stan Baker found that certain of the plaintiffs, including seven separate States; several of their governors; colleges within the University System of Georgia that held and planned on holding federal contracts; as well as a national trade association representing numerous construction industry members throughout the country with federal contracts, had sufficiently established standing to pursue this injunctive relief.

Similar to another federal court’s ruling in late November 2020, Kentucky v. Biden, the court in Georgia v. Biden concluded that EO 14042 exceeded the scope of the President’s authority under the Federal Property and Administrative Services Act, 40 U.S.C. § 101, et seq.  (the “Procurement Act”).  Here, the Court reasoned that the President’s “sweeping public health regulation” via mandatory vaccination for all federal contractors and subcontractors was not reasonably related to the purpose of the Procurement Act.

In the Georgia decision, based on the number of plaintiffs, in general, and the interests of the national construction industry trade organization, in particular, the Court found it necessary, “in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.”  Based on this rationale, the Court enjoined the Biden Administration, during the pendency of the Georgia case, “or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”

In response to this decision, the federal government has provided additional guidance to affected entities.  First, on December 9, 2021 the United States Department of Defense indicated that it will not enforce the mandate on any existing contracts.   Second, on December 10, 2021 the Safer Federal Workforce Task Force updated its guidance to reference that the White House’s Office of Management and Budget (“OMB”) has stated that the government “will take no action to enforce the clause implementing requirements of [EO] 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . . .”  So, while the FAR deviation clause incorporated into federal government contracts before the nationwide injunction and before the Task Force’s recent guidance remain in effect, government agencies are not authorized or required to enforce the mandate.

Smith Currie attorneys are monitoring developments in the federal contractor and subcontractor vaccine mandate, as well as the OSHA ETS, and their impact on the construction industry and will provide further updates as events warrant.

Smith Currie provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.

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