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On March 17, 2022, the National Institute of Standards and Technology (“NIST”) published an initial draft of its Artificial Intelligence (AI) Risk Management Framework (“AI RMF”) to promote the development and use of responsible AI technologies and systems.  When final, the three-part AI RMF is intended for voluntary use and to improve the ability to

In Tolliver Group, Inc. v. United States, No. 2020-2341, 2021 WL 5872256 (Fed. Cir. Dec. 13, 2021), the Federal Circuit vacated and remanded the Court of Federal Claims’ (“COFC”) decision holding that the contractor was entitled to an equitable adjustment for damages caused by the Government’s breach of the implied warranty that satisfactory contract

On November 15, 2021, the Defense Innovation Unit (DIU) released its Responsible Artificial Intelligence (AI) Guidelines (“RAI Guidelines”) to help contractors and federal officials gauge whether AI technology and programs align with the Department of Defense’s (DoD) Ethical Principles for AI (as we previously reported on here). Specifically, the RAI Guidelines provide a process

On November 1, 2021, the Safer Federal Workforce Task Force (Task Force) issued new Frequently Asked Questions (FAQs) for federal contractors that are subject to Executive Order (EO) No. 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance.  As required by the implementing contract clause, covered contractors are required to comply with this new guidance.

Requests for accommodations:  First, the FAQs state that requests for accommodation do not need to be resolved before a covered contractor employee begins work on a covered contract or at a covered workplace.  While requests are pending, these employees must follow workplace safety protocols for employees that are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors, which Crowell addressed in client alerts on September 24, 2021 and October 6, 2021.  On the other hand, for covered employees that are not vaccinated because they received an accommodation from the covered contractor, agencies are entitled to determine which protocols such employees must follow when they enter a federal workplace.  Notably, agencies may determine that mandating the vaccine is the only safety measure available.  In such cases, covered employees with accommodations would be unable to work at the federal workplace but the contractor would not be relieved from meeting its contractual requirements.  Covered contractors could presumably take the same approach for employees that only or occasionally work at a covered contractor workplace.  Additionally, covered contractors should notify their contracting officer when one of their employees who works at a federal workplace has received an exception to the requirement to be fully vaccinated.

Corporate Affiliates:  Second, the FAQs clarify that corporate affiliates of a covered contractor that do not otherwise qualify as covered contractors may be covered by the vaccine mandate if: “(i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”  Indicia of control also include interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.  Therefore, employees of a corporate affiliate of a covered contractor working at the covered contractor’s “covered contractor workplace” will be subject to the vaccine mandate.  Additionally, a facility that is owned, leased, or otherwise controlled by an affiliate that is not a covered contractor will be considered a “covered contractor workplace” subject to the vaccine mandate where an employee of the affiliated covered contractor working on or in connection with a covered contract is likely to be present during the period of performance.
Continue Reading Task Force Issues New FAQs for Contractor Vaccine Requirements

Executive Order 14042, issued on September 9, 2021, requires that certain federal contractors and subcontractors mandate vaccinations against COVID-19 for covered employees in addition to requiring compliance by covered employees and visitors with other COVID-19 safety protocols.

However, E.O. 14042 leaves several questions unanswered, including how agencies should implement the order and, in some cases,

Following President Biden’s announcement of Executive Order 14042 (“EO”) on September 9, 2021, several agencies have issued guidance on the EO’s applicability to the contractor community, which we reported on here.  Further to GSA’s September 30, 2021 Class Deviation CD-2021-13, on October 6, 2021, GSA reiterated that a mass modification program for all

This afternoon, the Safer Federal Workforce Task Force issued its Guidance regarding COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (at all tiers), pursuant to President Biden’s September 9, 2020 Executive Order.  The 14-page Guidance addresses the following topics:

  • Vaccination requirement.  The Guidance mandates vaccinations, with exceptions only for those employees legally

In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Board granted Lockheed Martin’s motion for summary judgment on the issue of whether the Government can assert laches as an affirmative defense to a Contract Disputes Act claim. In a case of first impression, Lockheed Martin argued that the affirmative defense of

The Federal Circuit recently affirmed the Civilian Board of Contract Appeals’ (CBCA) decision denying a pandemic-related claim in Pernix Serka Joint Venture v. Secretary of State, CBCA No. 5683, 20-1 BCA ¶ 37,589.  Pernix involved a firm-fixed-price construction contract in Sierra Leone that was impacted by an Ebola outbreak several months into the project.  The Department of State (DOS) declined to provide direction or to issue a suspension of work order, and instead advised Pernix to make its own business decisions regarding performance and employee safety.  Pernix chose to demobilize its workforce and, later, to remobilize with the addition of its own on-site medical facility and services.  Pernix then submitted a claim for the increased medical, safety, and demobilization and remobilization costs.  DOS granted an adjustment to the schedule for the Ebola-related delays under the contract’s excusable delay clause, but denied Pernix’s monetary claim.
Continue Reading Federal Circuit Affirms Board Decision on Pandemic-Related Claim

In URS Federal Services, Inc., ASBCA No. 62475 (March 23, 2021), the Board dismissed a contractor’s three-count complaint for lack of jurisdiction on one count and for failure to state a claim on the other two.  The Board first addressed Count III, which alleged that the Government had breached the implied duty of