Federal court blocks contractor vaccination mandate

Acquisition

A U.S. district court issued a preliminary injunction of the Biden administration’s vaccine mandate for federal contractors on Tuesday, temporarily halting the administration's ability to enforce the mandate in any state.

R. Stan Baker, a judge in the U.S. District Court for the Southern district of Georgia, wrote that President Joe Biden likely exceeded his authority under the Federal Property and Administrative Services Act, commonly known as the Procurement Act.

“We’ve always known the authority of the president to use the act as a basis for actions is broad but not unlimited,” Alan Chvotkin, a federal procurement lawyer and a partner at the firm of Nichols Liu, told FCW.

The mandate set a Jan. 18 deadline for contractors to be fully vaccinated, although it’s already seen a slew of lawsuits from states.


Plaintiffs in the case included Georgia, Alabama, Utah and other states, and a trade organization for construction, Associated Builders and Contractors of Georgia.

National contractor trade associations have expressed concerns about potential workforce shortages arising from the mandate if workers decline to get vaccinated, but so far no major group has signed on to litigation seeking to overturn the mandate.

At a Professional Services Council conference last week, the IT management and budget committee called the mandate a “major IT and workforce wildcard” and predicted up to 219,000 workers might refuse vaccination even against the Biden mandate.

Baker wrote that the “direct impact” of the executive order mandating contractor vaccination went beyond “the administration and management of procurement and contracting.”

White House Press Secretary Jen Psaki said on Tuesday that, "the reason that we proposed these requirements is that we know they work and we are confident in our ability legally to make these happen across the country," and added, "the Department of Justice will vigorously defend this in court."

While the appeals process plays out, Chvotkin said, "this decision will add further disruption – and not necessarily any greater certainty or clarity – for federal contractors.”

The Justice Department’s response to the injunction in the Kentucky case offers a preview of the kind of arguments that will likely be made in support of the government's efforts to stay the nationwide pause on enforcing the vaccination mandate.

The government’s response in the Kentucky case quotes Lesley Field, acting administrator of the Office of Federal Procurement Policy, as saying that delays to the “implementation of the COVID-19 workplace safeguards issued pursuant to the executive order would result in a significant reduction in economy and efficiency in the federal government’s procurement of essential services that are required to support the American people, combat the COVID-19 crisis, and carry out national security missions at a critical time for our nation.”

The government brief also states that “faced with a once-in-a-century pandemic that upended the American economy, threatened the health of the American workforce and disrupted the operations of federal contractors, it is hard to conceive of a procurement policy that would be more likely to create safer contractor work environments, reduce employee absenteeism and reduce contractors’ cost of labor over the long term than a vaccination requirement for contractor employees.”

Chvotkin said he doesn’t expect any changes to contracts in which companies have already accepted the modification, but per the court order, the mandate will not be enforced. In the short term, Chvotkin said he expects federal contracting officers to hold off on including the vaccine mandate language in new contracts while they process the implications, but long term he expects the mandate to appear in solicitations for federal contracts.

“It’s easier to take it out in the future if needed than it is to put it in at the last minute,” he said.

Adam Mazmanian contributed reporting to this story.


About the Authors

Natalie Alms is a staff writer at FCW covering the federal workforce. She is a recent graduate of Wake Forest University and has written for the Salisbury (N.C.) Post. Connect with Natalie on Twitter at @AlmsNatalie.

Chris Riotta is a staff writer at FCW covering government procurement and technology policy. Chris joined FCW after covering U.S. politics for three years at The Independent. He earned his master's degree from the Columbia University Graduate School of Journalism, where he served as 2021 class president.

https://fcw.com/articles/2021/12/07/court-blocks-contractor-vaccine-mandate.aspx