In an “update” that reads more like a teaser to a B Movie, the OMB on Friday advised that it will have more guidance on EO 14042 for us soon. What precipitated this official warning that more guidance would be forthcoming? Well, it seems that tomorrow (October 18, 2022) OMB expects the Southern District of Georgia to narrow the nationwide injunction prohibiting enforcement of EO 14042. This is the procedural step we’ve all been waiting for since the 11th Circuit issued its decision on August 26, 2022. In anticipation of the narrowed injunction, OMB announced it expects to release three new guidance documents in the near future:
Updated as of May 24, 2022
The United States is engaging in a new form of warfare. Russia invaded Ukraine just over two months ago and, rather than join the fight directly by sending troops to defend Ukraine, the United States is fighting indirectly by engaging in unprecedented financial warfare against the Russian Federation. The initial export and sanctions actions were swift and severe – but somewhat expected. As the invasion persists, the U.S. Federal Government and individual States also have begun to leverage procurement policy to amplify the financial harm to Russia. This Guide will try to help make sense of the current efforts targeting Russia, the potential impact to government contractors, and proactive steps to mitigate risk.…
On September 9, 2021, President Biden signed an Executive Order (EO) to implement COVID safety protocols for Federal service contractors. While the EO did not identify specific safety protocols, it did direct a Federal task force (the “Safer Federal Workforce Task Force,” created by Executive Order in January 2021) to issue COVID-19-related workplace safety guidance for prime contractors and subcontractors in the near future. Specifically, the Task Force is charged with issuing contractor guidance by September 24, 2021, including definitions of relevant terms, specific workplace safety protocols, and applicable exceptions.
Continue Reading COVID-19 Oversight and Enforcement: President Biden’s COVID Executive Order
On October 30, 2020 the FDA published a list of essential medicines, medical countermeasures, and critical inputs as required by President Trump’s August 2020 Executive Order on Ensuring Essential Medicines, Medical Countermeasures, and Critical Inputs Are Made in the United States (Executive Order 13944), which required the U.S. government to purchase “essential” medicines and medical supplies produced domestically, rather than abroad. We previously wrote about this Executive Order in August (available here), expecting that once the list was issued, government agencies would begin implementing the “Buy American” priorities for these products and materials. The FDA has identified around 227 drugs and 96 devices, along with their respective critical inputs or active ingredients, that the FDA believes “are medically necessary to have available at all times” for the public health. Agencies across the federal government should now begin making non-competitive awards “to the maximum extent permitted by law,” for drugs and medical supplies on this list that are produced in the United States. We have yet to see how agencies will implement these requirements in regulations or class deviations, but publication of this list is an important first step in implementing the rest of the “Buy American” priorities in the Executive Order. …
Continue Reading “Buy American” Update: FDA Issues List Of Essential Medicines Required By Executive Order
Last week the White House issued two additional Executive Orders (“EOs”) related to EO 13909, the subject of our March 20, 2020 blog post: Presidential Executive Order Calls on HHS to Issue Priority Contracts and Allocate Scarce Medical Resources.…
Continue Reading Presidential Executive Orders Delegate Additional Authorities To Respond To COVID-19 Outbreak
On May 11, President Donald Trump issued his long-awaited Executive Order on cybersecurity, the ‘‘Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure.’’ It had been in the works since early in the administration, and its release had been announced (and drafts leaked) several times, only to be pulled back and reworked further. The Executive Order calls for a government-wide review and analysis of federal information technology infrastructure, including known risks and vulnerabilities, as well as consideration of the U.S.’s cybersecurity capabilities in relation to the rest of the world.
Continue Reading Presidential Executive Order on Cybersecurity: No More Antiquated IT
On March 27, 2017, President Donald Trump signed into law a Congressional Review Act (“CRA”) resolution repealing the so-called “blacklisting” rule, which would have imposed strict labor reporting and other requirements upon government contractors. This was followed by an Executive Order (“EO”) signed by President Trump the same day, effectively nullifying President Barack Obama’s Fair Pay and Safe Workplaces EO that first called for the blacklisting rule.
Continue Reading UPDATE: Congress and Trump Administration Repeal “Blacklisting” Rule, Relieving Contractors from Strict Labor Reporting and Other Requirements
On April 18, President Trump signed a new executive order (EO) at a ceremony in Kenosha, Wisconsin. The EO is entitled “Buy American and Hire American” and focuses on these two themes, with the President’s stated goal of ending the “theft of American prosperity” by focusing on American workers and products. While the details of how the new EO will be applied will undoubtedly take months to implement (pending numerous agency-level reviews), companies doing business with the federal government, or with an interest in foreign high-skill workers, should be aware of these new developments so that they can prepare for the adjustments they will need to make in the near future, as the President’s efforts to put American workers first take shape.
Continue Reading Buy American and Hire American – New Executive Order Promises to Put American Workers First, But Practical Impacts Remain Unclear
On September 29, 2016, the Department of Labor (“DOL”) issued regulations (the “final rule”) implementing Executive Order 13706, which requires federal contractors to provide paid sick leave to their employees. According to the DOL, federal contractors employ 1.15 million individuals—594,000 of whom do not receive paid sick leave. Thus, for contractors who do not currently provide paid sick leave to their employees, the final rule imposes significant administrative and financial burdens. Given the nuanced requirements of the final rule, however, even contractors who currently provide some form of paid sick leave to employees may find compliance with the final rule burdensome. Contractors should act now to either develop paid sick leave policies or determine what changes need to be made to their current paid leave policies to ensure they are in compliance with the final rule once it becomes effective.
On August 25, 2016, the United States Department of Labor (“DOL”) and Federal Acquisition Regulatory (“FAR”) Councils published “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces’” (“final rule”). See 81 Fed. Reg. 58562. Also referred to as the “blacklisting” rule, it imposes strict disclosure guidelines and requires that both prospective and existing contractors – as well as subcontractors – disclose violations of federal labor laws that resulted in administrative merits determinations, civil judgments, or arbitral awards or decisions. The final rule also requires that contractors and subcontractors disclose specific information to workers each pay period regarding their wages and also prohibits contractors from requiring that their workers sign arbitration agreements that encompass Title VII violations and claims of sexual assault or harassment.
Continue Reading Agencies Publish Strict New Labor Reporting Guidelines for Government Contractors
On March 30, 2013, the U.S. District Court for the District of Columbia issued a decision imposing certain socio-economic contract requirements on subcontractors operating hospitals associated with the University of Pittsburgh Medical Centers. See UPMC Braddock, et al. v. Harris, Civ. 09-1210 (PLF) (D.D.C. Mar. 30, 2013) (“UPMC Braddock”). Even though the hospitals’ subcontracts did not include these socio-economic clauses, the court applied the age-old “Christian Doctrine,” which assumes that certain contract requirements reflecting a “significant or deeply ingrained strand of public procurement policy” will apply to a Government contract even if those requirements have been omitted from the text of the actual contract. See G.L. Christian & Associates v. United States, 312 F.2d 418, 426 (Ct. Cl. 1963). Even though no court has ever before held in the 50-year history of the Christian Doctrine that this legal rule applies to subcontractors (Christian and its progeny apply only to prime contractors doing business directly with the U.S. Government), the court has now radically expanded the doctrine.…