Helping individuals, companies, and organizations understand key legal and practical considerations for promoting compliance and making better business decisions in these types of federal, state, and local government contracting matters MORE

On Tuesday, DOJ released its eagerly awaited False Claims Act (FCA) recoveries for the fiscal year ending September 30, 2021, announcing that DOJ had obtained $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government.  This was the second largest annual total in FCA history (only surpassed by the $6.2 billion in recoveries in FY 2014), which was telling since the number of new qui tam matters filed actually decreased from 675 in FY 2020 to 598 in FY 2021 and the number of non-qui tam matters decreased from 259 in FY 2020 to 203 in FY 2021.  FCA recoveries had hit a decade low in FY 2020, so Tuesday’s announcement foreshadows a banner year for FCA enforcement in FY 2022, particularly given DOJ’s recent statements on its enforcement priorities.

As expected, the bulk, or $5 billion, of last year’s recoveries related to actions involving the health care and life sciences industries (with $2.8 billion due to the Purdue Pharma LP’s opioid-related settlement).  What was surprising about the report was the amount of recoveries for government-initiated, non-qui tam matters, which amounted to $3.98 billion, or 730 percent higher than in FY 2020.  $3.59 billion of that amount pertained to health care and life sciences matters, and $1.6 billion arose from the qui tam or whistleblower provisions of the FCA. A critically important statistic for government contractors, though, was the 254 percent increase in the amount of recoveries from whistleblower settlements and judgments for Department of Defense (DoD)-related matters.

So what does this mean?  It means that overall, while fewer FCA cases were filed, the government focused on initiating its own enforcement actions and pursued them vigorously.  It also means that the government appears to be intervening in more whistleblower actions in procurement fraud matters.  Indeed, the DOJ listed the wide variety of procurement fraud matters it settled last year, including:

Government contractors falsifying pricing data.

  • Navistar Defense LLC paid $50 million to resolve allegations that it fraudulently induced the U.S. Marine Corps to enter into a contract modification at inflated prices for a suspension system for armored vehicles.
  • Insitu Inc. paid $25 million to settle allegations that it knowingly submitted materially false cost and pricing data for contracts with the U.S. Special Operations Command and the Department of the Navy to supply and operate Unmanned Aerial Vehicles.
  • Furniture maker Workrite Ergonomics LLC paid $7.1 million to resolve allegations that the company did not provide the General Services Administration (GSA) with accurate information about its commercial sales practices during contract negotiations for office furniture, and subsequently violated the terms of its contract by failing to extend lower commercial pricing to government customers.

Government contractors provided goods or services that did not comply with contract requirements.

  • United Airlines Inc. paid $32.1 million to resolve allegations relating to its execution of contracts to deliver mail internationally on behalf of the U.S. Postal Service.
  • Cognosante LLC paid $18.9 million to resolve allegations that it used unqualified labor and overcharged the government for health care and IT services provided to federal agencies under two GSA contracts.
  • AAR Corp. and its subsidiary, AAR Airlift Group Inc., paid $11 million to resolve allegations that AAR Airlift knowingly failed to maintain nine helicopters in accordance with DoD contract requirements and that the helicopters were not airworthy and should not have been certified as fully mission capable.

Government contractors alleged to have paid or received kickbacks related to government contracts.

  • Level 3 Communications LLC paid $12.7 million to resolve allegations that the owner of two subcontractors paid kickbacks to Level 3 senior managers in return for favorable treatment for those subcontractors on government contracts. The government also alleged that Level 3 managers misstated compliance with woman-owned small business subcontracting requirements and knowingly obtained protected competitor bid information on the government contract to gain an advantage in bidding on task orders.
  • Schneider Electric Buildings Americas Inc. paid more than $9 million to resolve allegations that one of its senior project managers solicited kickbacks from subcontractors and that the company fraudulently charged the government for design costs by disguising those costs and spreading them across unrelated pricing components.

The key takeaway from DOJ’s announcement is that  now, more than ever, government contractors must focus on having and maintaining a robust compliance program.  Contractors also must establish a culture of compliance, where management actually buys in to implementing and acting upon the program, not just having a compliance program on paper.  With the increased DOJ focus on pursuing whistleblower claims in government contracting matters, companies must fortify their internal whistleblower programs, including providing compliance training for personnel, implementing measures for appropriate reporting of misconduct, and diligently investigating whistleblower reports when received. When a company maintains an effective compliance program, it encourages good behavior and makes it that much more difficult for bad actors to engage in unlawful conduct, and, if the conduct does occur, it increases the likelihood that the company will learn about and be able to address it promptly and effectively.

The Biden Administration continues its march towards implementation and enforcement of permanent vaccination mandates.

OSHA withdraws OSHA Emergency Temporary Standard (ETS)

On January 13, 2022, the Administration’s plan to force employers to vaccinate or test more than 84 million employees was blocked by the Supreme Court.  In its ruling, the Supreme Court held that OSHA did not have emergency authority to mandate that employers of 100 or more employees must vaccinate or test their employees.  In its decision, the Court’s majority stated that:

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.  COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.  That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.  Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.  … Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”

While some predicted that this ruling on the stay would be the effective end of the Administration’s efforts to force vaccination as the ETS would only be a temporary rule, the opposite appears to be the case.  On January 25, 2022, OSHA issued a prepublication notice of its intent to withdraw the OSHA ETS interim final rule, but stated that it intends retain the ETS as a “proposed rule” (the comment period closed January 19, 2022) for a “proceeding” to promulgate an occupational safety or health standard. In a separate statement, OSHA indicated that it intends to prioritize its resources to promulgate a permanent COVID-related standard for healthcare.  Thus, the Administration may be planning to make the requirement for vaccination for COVID-19 a permanent fixture – the question is whether this will be limited to healthcare or more broadly applicable. Given the language of the decision by the majority of the Court, a permanent rule that does not distinguish between the various businesses, types of work and workplace conditions will be vulnerable to a challenge. The Supreme Court’s reasoning in its January 13, 2022 decision made clear the majority’s position that COVID-19 on its own is not a uniquely occupational hazard subject to OSHA’s regulatory ETS authority. Accordingly, any permanent rule seeking to impose requirements similar to those set forth in the ETS, or which does not address occupation-specific risks related to COVID-19, may be subject to similar challenges.

Georgia v. Biden District Court Clarification of Preliminary Injunction

During the pendency of the appellate court’s review of the preliminary injunction enjoining implementation of the government contractor vaccination mandate, the Administration sought clarification of the scope of the injunction at the District Court – asking whether it could enforce the mandate where contractors had “voluntarily” accepted the clause and whether it could enforce the mandate’s masking and social distancing requirements.  On January 21, 2022, the District Court issued its ruling on the requested clarification.  The Court confirmed that it lacked jurisdiction over the injunction while an appeal was pending at the Court of Appeals.  However, the District Court found that it did retain jurisdiction to “supervise the enforcement of its injunction and to preserve the status quo pending appeal” per FRCP 62(c).  It declined to provide an advisory opinion on the question of enforceability of the mandate where there was voluntary acceptance of the clause, since that was a “vaguely-described hypothetical situation.”  With regard to the second part of the clarification request, the Court also declined to provide the requested clarification though it stated that the answer was straight forward, “Defendants are ENJOINED … from enforcing the vaccine mandate ….” While the Court may believe that this was a clear response, the Executive Order covered the guidance issued by the Safer Workforce Task Force, which includes guidance regarding vaccination as well as masking and social distancing.  Looks like we have to wait for the appellate court to act for further clarification on this case.

These matters continue to develop.  Contact the author or your Stinson counsel if you have questions on this advisory or related matters.  Stay tuned for more updates.

The saga continues.  In prior alerts, we have been providing updates and analysis regarding continuing practical and legal challenges to implementing the President’s Path Out of the Pandemic plan, and in particular, the Executive Order 14042 (“EO 14042”) mandating that government contractors’ employees must be vaccinated unless one of the two legal exceptions – sincerely held religious belief or medical disability – is found by the government contractor to apply. Challenges to EO 14042 have been raised quickly by many, and in myriad forums.  Among the challenges are lawsuits filed by 26 States, as well as educational institutions, public and private entities that assert that they are covered federal contractors (or have filed parens patriae suits on behalf of covered federal contractors in their citizenry) subject to EO 14042. A number of these suits seek to enjoin enforcement of EO 14042. As a result, there is currently a nationwide injunction in place, staying implementation of the government contractor vaccination mandate under EO 14042 across government contracts and contract-like agreements being performed in the U.S. and outlying areas (the vaccination mandate does not apply to the performance of government contracts and agreements outside these areas). While this nationwide stay is in place, covered federal contractors are nonetheless left in limbo as the Administration has appealed many of the current rulings and the legal challenges continue. Below is an update of the current status of the various lawsuits challenging EO 14042:

Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia v. Biden et al. (S.D. Georgia) – 12/7/21 Nationwide Preliminary Injunction

On December 7, 2021, the District Court granted the plaintiff States’ motion for a preliminary injunction, and the Court entered a nationwide preliminary injunction on December 7, 2021, which had the effect of staying implementation of EO 14042. The Administration appealed this ruling. Briefing in the appeal is set to be completed on January 24, 2022. The Administration requested that the District Court’s injunction be stayed pending the appeal. If granted, this stay would have renewed enforcement of EO 14042; however, the Court denied the Administration’s request to stay the preliminary injunction. Separately, the Administration requested that the District Court clarify its Order, and the Court has allowed briefing on the issue, which will be completed on January 14, 2022.

Commonwealth of Kentucky, Ohio, Tennessee v. Biden et al. (E.D. Kentucky) – 11/30/21 Limited Preliminary Injunction

On November 30, 2021, a U.S. District Judge in Kentucky granted a preliminary injunction enjoining the federal government from enforcing a vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. The Administration filed a notice of appeal for this ruling, and the parties jointly requested a stay in the district court on December 20, 2021 pending the current appeal. On January 5, 2022, the Sixth Circuit denied the Administration’s requested stay, noting that the Administration did not establish that it would suffer irreparable harm as it delayed issuance and implementation of the vaccination mandate itself and there is a national stay already in place through the Georgia District Court proceeding.  Briefing for the appeal is currently scheduled to be completed on March 23, 2022.

Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming. v. Biden et al. (E.D. Missouri) – 12/20/21 Limited Preliminary Injunction

On December 20, 2021, the District Court entered an Order enjoining the Defendants from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming. A scheduling conference is set for January 7, 2022, and the Administration has not filed a notice of appeal in this case.

Florida v. Nelson et al. (M.D. Florida) – 12/30/21 Limited Preliminary Injunction

On December 22, 2021, the District Court entered an Order finding that Florida demonstrated a substantial likelihood that EO 14042 exceeded the President’s authority under the Federal Property and Administrative Services Act (FPASA), and therefore did not need to reach whether EO 14042 exceeded constitutional or other legal and rulemaking authority to determine whether there was substantial likelihood of success on these grounds as well at this stage of the proceedings. The Court took the remainder of Florida’s motion for preliminary injunction under advisement, and the Court gave the parties until December 29, 2021 to propose a preliminary injunction consistent with the Court’s Order. Following receipt of the parties’ proposed orders, the Court entered a preliminary injunction on December 30, 2021.

Louisiana, Indiana, Mississippi v. Biden et al. (W.D. Louisiana) – 12/16/21 Limited Preliminary Injunction

On December 16, 2021 the District Court granted the plaintiffs’ motion for preliminary injunction. The Court’s Order enjoins the federal government from “enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement by any other name, whether for services or product and whether existing or new, between the Plaintiff States or their agencies and the national government.” The Administration has not filed a notice of appeal in this case.

Texas v. Biden (S.D. Texas)

In this case, the State of Texas filed suit seeking to enjoin enforcement of EO 14042’s government contractor vaccination mandate. While the State has sought injunctive relief, the case has been stayed following a status conference with the court. No Order was entered on the plaintiffs’ motion for TRO/preliminary injunction prior to the stay.

Arizona v. Biden (D. Arizona)

Briefing is ongoing with respect to the plaintiffs’ motion for injunctive relief in this case.

Next Steps

These suits bring a variety of claims, generally alleging EO 14042 exceeds Presidential and statutory authority and violates various constitutional provisions. So far, several district courts have held that the challenging States have a likelihood of success on the merits sufficient to warrant preliminary injunctive relief. However, the Administration has appealed certain of these rulings, and even if the challenging States succeed on appeal, the cases will go forward in the trial courts on the merits in order to determine if a permanent injunction and stay is warranted. Some federal contractors and subcontractors have already been required to accept the clause implementing EO 14042 for current and new contracts – the clause’s application has been stayed and so these provisions remain in the agreements but not enforced at this juncture.  Other contractors have not accepted the clause.  For them there is a pending, unanswered question as to whether they may be covered by the Path Out of the Pandemic Plan, the vaccinate or mask mandate Occupational Health and Safety Act Emergency Temporary Standard (OSHA ETS), since they are not covered by the EO 14042 mandate.  For many contractors and subcontractors that work at government facilities or sites, their employees may be subject to the vaccination or mask mandates for being admitted to these places. Contractors would be wise to have a plan in place for implementation of the requirements of EO 14042 should the current landscape change.

Separately, the interlocutory appeals of two other mandates under the OSHA ETS vaccinate or mask mandate applicable to companies in the U.S. employing 100 or more employees, which has taken effect, and the Centers for Medicare and Medicaid (CMS) interim final rule regarding vaccination are set to be argued at the Supreme Court on January 7th.  It is unlikely that the Supreme Court decision(s), in either case, will be issued quickly or result in clear guidance on the government contractor mandate.  However, they may shed light on the likelihood of success as the EO 14042 cases wind their way through the legal process. While these suits involve different statutory authority and constitutional questions, any reasoning offered by the Supreme Court may be instructive in evaluating the pending challenges to EO 14042 going forward. We will continue to monitor these developments. In the meantime, if you have questions regarding these ongoing developments, please contact Susan Warshaw Ebner, Luke VanFleteren, Eric Whytsell or the Stinson LLP contact with whom you regularly work.

In the latest round of litigation on the rules being rolled out to implement the Biden Administration’s Path Out of the Pandemic, the Supreme Court signed orders yesterday to hold oral argument on January 7th, 2022 on the Sixth Circuit’s decision to dissolve the Fifth Circuit’s national stay of the Occupational Safety and Health Administration (OSHA) emergency  rule mandating that companies with 100 or more employees must vaccinate or test employees for COVID.  As Stinson reported last week, the Sixth Circuit, which is handling the consolidated complex litigation of OSHA’s authority to issue that emergency rule, issued a split decision to dissolve the national stay of the rule pending resolution of the litigation challenges to the rule and OSHA’s authority.  While the majority of two found that the rule was within OSHA’s reasonable exercise of its emergency authority, the dissent filed by the remaining judge took strong exception to the standard and decision to lift the stay, stating that “a multitude of petitioners—individuals, businesses, labor unions, and state governments—have levied serious, and varied, charges against the mandate’s legality. They say, for example, that the mandate violates the nondelegation doctrine, the Commerce Clause, and substantive due process; some say that it violates their constitutionally protected religious liberties and the Religious Freedom Restoration Act of 1993. To lift the stay entirely, we would have to conclude that not one of these challenges is likely to succeed. A tall task. To keep the stay, however, there is no need to resolve each of these questions; the stay should remain if we conclude that petitioners are likely to succeed on just one ground. In my view, the petitioners have cleared this much lower bar on even the narrowest ground presented here: The Secretary of Labor lacks statutory authority to issue the mandate.”

Pending the Supreme Court’s hearing on the Sixth Circuit’s decision, OSHA has extended the date for enforcement of the emergency rule:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  OSHA will work closely with the regulated community to provide compliance assistance.”

Government contractors need to consider what to do pending the litigation of this OSHA rule and the Executive Order 14042 (the “EO”) government contractor vaccination rule.  The current national stay decision and other decisions in other Circuit Courts of Appeal staying implementation of the EO vaccination rules indicate that the Administration’s attempts to insert the clause into Government-funded agreements was indeed very broad.  Whether the clauses inserted were expressly required under the EO or the agencies’ extensions of the EO were beyond its scope, and whether contractors and grant holders voluntarily agreed or were forced to accept the clause as a condition, contractors are left in a position where the clause has not been removed from their contracts, and the Government may still be attempting to insert these clauses into procurements, contracts, and grants, pending its efforts to overturn the stay or prevail on a decision on the merits of the litigation.

The Safer Workforce Task Force Guidance has been revised to state that the Government will not “enforce” the rule in states covered by the stay:

For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.

Contractors that have not accepted the EO clause may not be considered subject to the EO scheme at the present time.  Will OSHA consider them covered by their emergency rule if they meet the applicable employee standard?  And for contractors that do have the clause, do they continue to pursue implementation of a “vaccination unless there is a legal exception” policy in light of the stay and OSHA litigation, which currently calls for a “vaccination or test” policy?  This effort at rulemaking has been costly in many ways, beyond just time and money. Employers have contractual requirements to perform and employees are making decisions with their feet.  Contractors at all tiers need answers.

Stay tuned.  We continue to follow developments in this area.

Executive Order 14042 (the “EO”) and the implementing FAR clause and Safer Workforce Task Force (SWTF) Guidance – which mandate that government contractors and their subcontractors be vaccinated absent a legal exception – has been challenged by 26 states, as well as other entities.  Many of these suits allege that the President’s actions exceeded his authority under the U.S. Constitution and as delegated by Congress through legislation. Certain suits also challenge the rulemaking to implement the EO, and raise federalism and states’ rights concerns. Previously, we reported on the preliminary injunction issued by Judge Van Tatenhoven of the District Court for the Eastern District of Kentucky, enjoining the enforcement of the EO for federal contracts and contract-like agreements involving performance in the States of Kentucky, Ohio, and Tennessee.  We also reported on the nationwide injunction issued by Judge Baker of the District Court for the Southern District of Georgia, similarly enjoining enforcement of the EO but expanding it to cover federal contracts and contract-like agreements “in any state or territory of the United States of America.”

In the latest decision issued in this trail of State-led challenges, Judge Drell of the District Court of the Western District of Louisiana, issued a preliminary injunction over implementation of the EO for the States of Louisiana, Mississippi, and Indiana with regard to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  The Court declined to extend the stay to private contractors since there was “not a single plaintiff representative of private contractors,” nor evidence of the EO’s effect on private contractors presented in that case, and there was a national injunction already in place for private contractors under the Georgia v. Biden case.

The Louisiana Court found that the identified States had standing to bring suit based on their contracts and the “Hobson’s choice” they faced in addressing the Government’s “strong-arming tactics” of accepting the clause or risking the loss of current and future contracts given their lack of bargaining power. The Louisiana Court discussed, but did not reach the question of whether the States had parens patriae standing to bring suit on behalf of its citizenry although the Court seemed to be sympathetic to finding such standing. Instead, the Court based its finding of standing on the fact that the States had established a case or controversy in regard to conflict between the EO and implementing actions and the Tenth Amendment of the U.S. Constitution.

In issuing the preliminary injunction here, the Louisiana Court noted that there were “bizarre coverage differences” between the EO and the FAR memorandum implementing it. The Court pointed out that the EO does not apply to existing or current contracts, or grants, contracts with Indian Tribes, contracts at or below $250,000, contracts for work performed outside the U.S., or contracts for products. In contrast, the Court found that the FAR memorandum implementing the EO expressly seeks to expand the scope by applying the requirements more broadly.  While contracts with Indian Tribes and those performed outside the U.S. are expressly excluded under the FAR memorandum, the Court pointed out that grants were not excluded.

While the author of this blog notes that FAR provisions do not normally apply to grants unless expressly incorporated into the grant or grant rules applicable to the grant, the Court’s finding does not appear to be based solely on the fact that the FAR memorandum does not exclude grants.  Rather, it appears to rely on the facts brought forth in live testimony during the hearing that the National Institute of Health contacted the University of Louisiana and requested that the University comply with the SWTF Guidance through the inclusion of a deviation clause into an existing grant.  The testimony reported that the University was left with no choice but to accept the deviation clause without bargaining, or risk loss of its grant. Personnel employed by the University also presented testimony that the University denied their assertion of a religious exception because there was “uncertainty as to whether any accommodation for a religious exemption is sufficient to comply” with the SWTF Guidance and that the personnel would be fired unless they obtained fully vaccinated status by January 18, 2022.

In examining whether the Federal Property and Administrative Services Act (FPASA) provided legislative authority for the EO’s required government contractor vaccine mandate, the Court stated that there would need to be a “close nexus” between the FPASA and the EO.   However, the Court determined that the primary purpose of the EO, to motivate public health policy first and foremost to increase vaccinations, was not aligned with FPASA policy, which is to promote economy and efficiency, encompassing factors like “price, quality, suitability, and availability of goods or services that are involved in all acquisition decisions.”  Further, the Court found that the public health policy purpose of the EO conflicts with the Tenth Amendment of the U.S. Constitution, which entrusts the protection of the “safety and the health of the people,” a noneconomic activity, principally to the States.

With regard to challenges that the States’ brought against the rulemaking under the EO, the Court determined that, two years into the pandemic, the circumstances did not satisfy the urgent and compelling circumstances test so as to justify waiver of the relatively short required notice and comment period for rulemaking. Notably, the Court stated that the Office of Management and Budget’s (OMB’s) actions to calendar a comment period on the OMB determination was a “manipulation” of the letter of the law and the revised OMB determination to adopt the then updated SWTF Guidance and move the date for full vaccination of government contractors to January 18, 2022 did not “pacify” complaints that the arbitrary effective date was inconsistent with the Administrative Procedure Act.

Cases in other jurisdictions are also winding their way through the judicial process.

In the interim, the revised SWTF Guidance still provides that “The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . . . In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. . . . Note: Federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations.”  The Government clearly is still hoping to overturn or dial back the nationwide stay. Contractors with contracts that task them to perform work at government facilities still need to comply with agency requirements.  And  those that have contracts with the clause and perform within and outside the United States and its outlying areas may have questions about the impact of this enforcement “stay” on their contracts in light of this ambiguous language. Contractors in these circumstances may want to check with their contracting officer to confirm the scope of their requirements.

Stay tuned for further developments.