Comment on Government Contracts Development--Fall 2023

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On December 7, 2021, United States district court judge R. Stan Baker of the Southern District of Georgia granted a trade organization's motion to preliminarily enjoin (halt) enforcement of the vaccine mandate contained in the new contract clause of October 1, 2021 issued by the Federal Acquisition Regulatory Council (the "FAR Council") and stemming from Executive Order (EO) 14042. The case was State of Georgia v. Joseph R. Biden, and the injunction was granted to a third party intervenor in the lawsuit, namely Associated Builders and Contractors, Inc. (ABC), which along with plaintiff Georgia, claimed "extreme economic burdens . . in endeavoring to comply with EO 14042 . . . [and] impediment[s in] ABC's members' . . . ability to continue to perform federal contract work . . . ." The district court found that there was a likelihood of success on the merits of the lawsuit at a later trial because the court could well conclude that Congress, through the language it used in the Federal Property and Administrative Services Act ("Procurement Act") of 1949, did not clearly authorize the President to issue the kind of mandate contained in EO 14042. That order, said the district court, "goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized in the Procurement Act.

The result is a nationwide injunction of indefinite duration and linked to whenever the Georgia v. Biden lawsuit is tried and concluded. The practical consequence for government contractors is that many of the most serious potential requirements that seemed imminent when our last "Comment on Government Contracts Development" was posted in the Fall of 2021 no longer must be complied with. Although the masking and social distancing mandates generally remain in effect, the vaccine mandate, for the time being, does not.