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On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have their covered workforce fully vaccinated or the first date of the period of performance for newly-awarded contracts. The White House announced this change so that the deadline for workers to receive their shots will be the same for the federal contractor requirements, the Department of Labor’s Occupational Safety and Health Administration’s (OSHA) rule and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services’ (CMS) rule, which were both issued on November 4, 2021. According to the CMS rule, although an individual is not considered fully vaccinated until 14 days (2 weeks) after the final dose, individuals who have received the final dose of a primary vaccination series by January 4, 2022 are considered to have meet the individual vaccination requirements, even if they have not yet completed the 14-day waiting period. According to the Fact Sheet, standardizing the vaccination deadline will allow federal contractors that have workplaces that are subject to both the federal contractor order and the newly-released OSHA and CMS rules to streamline implementation and set one deadline for their workforce. We are expecting the Safer Federal Workforce Task Force to issue FAQS or additional guidance to implement the information contained in the White House Fact Sheet.

Additionally, the White House clarified that the newly-released OSHA rule will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

Crowell & Moring is hosting a webinar on November 10, 2021, which will address this and other key developments. The registration link is available here. Crowell & Moring will also be releasing separate alerts shortly on the newly-released OSHA and CMS rules.

Crowell & Moring is continuing to monitor fast-moving developments in this area and our team is available to help companies navigate the many issues raised by the EO and Task Force guidance.

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In Aero Spray, Inc. d/b/a Dauntless Air v. U.S., the U.S. Court of Federal Claims dismissed a protest filed by Aero Spray, an awardee of an indefinite delivery indefinite quantity (“IDIQ”) contract for Department of the Interior plane-based firefighting services.  Aero Spray’s protest challenged the agency’s award of IDIQ contracts to two other companies, alleging that their planes did not comply with the solicitation’s required firefighting configuration.

Aero Spray argued that despite being an awardee itself, it had standing to protest the additional awards because they increased competition for awards of future task orders competed amongst the IDIQ holders, to Aero Spray’s detriment.  The Court disagreed, holding that Aero Spray’s protest related to the award of the IDIQ contracts—not future task orders—and that Aero Spray “already . . . won the only contract award to which it could possibly be entitled.”  In so holding, the Court expressly agreed with the Government Accountability Office, which has held that that “an awardee, by definition, is not an actual or prospective offeror,” and that “[d]ue to the nature of IDIQ contracts, . . . an awardee has no legally cognizable expectation of receiving future task orders” but only a “guaranteed a minimum quantity of orders . . . and a fair opportunity to compete for future task orders.”  Aegis Def. Servs., LLC, B-412755, Mar. 25, 2016, 2016 CPD ¶ 98.  The Court also rejected the reasoning in National Air Cargo Group, Inc. v. U.S., 126 Fed. Cl. 281 (2016), which allowed an awardee to protest additional IDIQ awards due to the potential impact on future task order competitions, and distinguished PAE-Parsons Global Logistics Services., LLC v. U.S., 145 Fed. Cl. 194 (2019), and Sirius Federal, LLC v. U.S., 153 Fed. Cl. 410 (2021), which noted that an awardee can have standing to challenge other awards under the same procurement where those other awards are distinct from (e.g., more valuable than) the awardee’s own. Continue Reading Court of Federal Claims Refuses to Hear Protest from IDIQ Awardee

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Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces. In this episode, host Evan Wolff talks with Chris Hebdon about micro-purchases and the cybersecurity obligations that contractors may encounter in the performance of these small dollar contracts. | PodBean | SoundCloud | Apple Podcasts 

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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

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This week’s episode covers the latest on the COVID vaccine requirement for contractors, Federal Data Strategy Action Plan, Army Digital Transformation Strategy, FAR Council call for comments on proposed amendments focusing on climate change, and a development under the False Claims Act , and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. | PodBean | SoundCloud | Apple Podcasts 

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Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, host Olivia Lynch is joined by Michael Samuels to discuss a recent decision from the Small Business Administration’s Office of Hearings and Appeals on the ostensible subcontractor rule as well as a recent Government Accountability Office decision sustaining a protest of an agency solicitation that required a joint venture competing for the award, as opposed to the individual members of the joint venture, to hold a top secret facility clearance. | PodBean | SoundCloud | Apple Podcasts 

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This week’s episode covers the latest on the COVID vaccine requirement for contractors, cybersecurity updates, the DoD Climate Adaptation Plan, and a class deviation relating to certified cost or pricing data, and is hosted by Peter Eyre and Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. | PodBean | SoundCloud | Apple Podcasts 

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Yesterday, President Biden issued a Fact Sheet entitled Biden Administration Efforts to Address Bottlenecks at Ports of Los Angeles and Long Beach, Moving Goods from Ship to Shelf to help address the “delays and congestion” across the transportation supply chain. As has been widely reported in recent weeks and months, the global supply chain has been hard hit by large increases in e-commerce and delays and shutdowns implemented to curb the spread of COVID-19. Yesterday’s release confirms public and private commitments to move goods more quickly and to secure the resiliency of American and global supply chains. To do so, the Biden Administration is focusing on the Ports of Los Angeles and Long Beach, which act as the ports of entry to the United States for 40% of containers received. The President, together with leadership from these ports, are undertaking a series of public and private commitments as noted below.

On the public side, the Biden Administration has taken numerous steps in the past several months to secure the supply chain and ensure that goods are delivered. In June, the White House launched the Supply Chain Disruptions Task Force, and, in August, announced John Porcari as the White House Envoy to the Task Force. Last week, the White House issued a release summarizing additional actions taken by the U.S. Departments of Agriculture and Commerce to address increased grocery store prices and the global semiconductor chip shortage respectively. Yesterday’s Fact Sheet also promises to continue to work with industry shareholders to move the American supply chain toward 24/7 operations. For its part, the Port of Los Angeles will expand its hours of operation to 24/7 with new off-peak night and weekend shifts.

On the private side, the union that provides labor for the Port of Los Angeles, and large retailers and delivery companies have agreed to maximize night and weekend hours to ease some of the backlog. For example, the International Longshore and Warehouse Union has announced that its members are willing to work those additional shifts at the Port of Los Angeles. In addition, large retailers have committed to increasing the use of night-time and weekend hours, and large delivery companies will increase the volume of containers that they move from the Ports of Los Angeles and Long Beach. Ultimately, the commitments announced yesterday are expected to move 3,500 additional containers per week at night through the end of 2021.

The Fact Sheet demonstrates the attention the Biden Administration is giving to supply chain issues and their resolution. Crowell & Moring LLP will continue to track these developments.

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In a recent alert, we highlighted VS2 v. U.S., in which the Court of Federal Claims refused to expand the Federal Circuit’s Blue & Gold waiver doctrine and required the Army to consider performance risk in a cost realism evaluation. In a new “Feature Comment” published in The Government Contractor, we take a deeper dive into the Court’s disagreement with GAO and what it means for contractors and agencies going forward. Of particular note, contractors considering capping costs in their proposals should carefully consider when and how agencies may evaluate performance risk; and both protesters and intervenors must stay vigilant and diligently pursue potential protest grounds

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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, what types of contracts are covered.  Government agencies have begun to issue guidance in the form of class deviations, the substance of which we are providing as a side-by-side comparison.

Crowell & Moring LLP is tracking this emerging guidance, and is pleased to present this table, current as of the date on the table.