Government Contracts Legal Round-Up | 2022 Issue 1
Unavailable Key Personnel: CoFC Splits from GAO and Finds No Duty for an Offeror to Disclose

Government Contracts Legal Round-Up | 2022 Issue 2

Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update offers brief summaries of key developments for government contracts legal, compliance, contracting, and business executives. Please contact any of the professionals at the bottom of the update for further information on any of these topics.

COVID-19-Related Regulatory Developments

1. OSHA Withdraws COVID-19 ETS

  • Effective January 26, 2022, OSHA withdrew the vaccine-or-test emergency temporary standard issued on November 5, 2021, covering employers with 100 or more employees. 
  • OSHA did not withdraw the ETS as a proposed rule, however, and indicated it is working to finalize a permanent COVID-19 Healthcare Standard.
  • Given the Supreme Court’s stay of the OSHA ETS on statutory authority grounds, presumably OSHA would significantly revise the scope of any permanent standard to attempt to withstand judicial scrutiny.
  • It is worth remembering that OSHA may still attempt to pursue COVID-19-related safety issues, including under the General Duty Clause.
    • In response to the Supreme Court’s decision, on January 13, 2022, the Secretary of Labor stated: “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation. Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”
    • Companies should evaluate their COVID mitigation efforts and expect that employees may submit complaints to OSHA related to those efforts.

2. Texas Court Enjoins Federal Government Employee Vaccination Mandate

  • On January 21, a judge in the Southern District of Texas issued a nationwide injunction against the mandatory vaccination requirement for federal government employees. Relying on the Supreme Court’s recent decision on the OSHA ETS, the judge held that getting vaccinated is not “workplace conduct” over which the President has authority because COVID-19 poses a universal risk no different from other day-to-day dangers. The judge noted that any broader interpretation of the President’s powers would permit regulation of “certain private behaviors by civilian federal workers outside the context of their employment.”
  • The Safer Federal Work Force Task Force has issued an updated Q&A stating that it has suspended enforcement of the vaccination requirement for federal employees pending appeal, but will continue to enforce the non-vaccine elements of the federal employee requirement.

3. The Contractor COVID-19 Mandate Stay Is Currently on Appeal in Multiple Appellate Courts

  • The federal government has appealed the multiple stays issued against the federal contractor COVID-19 vaccine mandate, including the nationwide stay issued by a Federal District Court for the Southern District of Georgia to the Eleventh Circuit.
  • The Eleventh Circuit ordered expedited briefing, which was completed on January 24, 2022.

4. The Southern District of Georgia Issued an Order in Response to the Biden Administration’s Request for Clarification of its Nationwide Injunction

  • The government requested clarification as to whether the nationwide injunction of the contractor mandate (1) “prohibit[s] private federal contractors from mutually agreeing with Defendants to include COVID-19 safety clauses in their federal contracts” and (2) “is limited to enforcement of the Safer Federal Workforce Task Force’s vaccination requirements, o[r] whether it also prevents federal agencies from enforcing requirements related masking and physical distancing and the identification of [person(s)] to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.”
  • The court ordered declined to answer the first question, stating that it would be an advisory opinion. It then stated that it was unnecessary to answer the second question because its injunction was clear: it had specifically used the word “vaccine” and not mentioned any other requirements. It noted that, similarly, the underlying motion had not requested injunction of the other requirements.
  • Unlike for the federal employee COVID-19 requirements discussed above, the Safer Federal Work Force Task Force has not yet issued updated Q&As regarding enforcement of the non-vaccine elements of the contractor COVID-19 mandate. 
    • The website still provides that “[f]or 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”).”
    • Contractors with contracts containing FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, should be on the lookout for updates or clarifications on this issue.

Protest Cases

1. Insight Technology Solutions, Inc., B-420133.2 et al. (December 20, 2021) (Published January 20, 2022)

  • GAO sustained a protest and recommended that the agency disqualify an offeror for materially misrepresenting the qualifications of its key personnel.
  • In this procurement, the solicitation did not require that offerors submit resumes for key personnel, but offerors were required to clearly identify how proposed key personnel met or exceeded minimum qualifications.
  • The protester alleged that the awardee misrepresented the qualifications of its proposed project operations manager, claiming that publicly available information on LinkedIn showed the proposed individual to possess less experience than claimed by the awardee and less than the solicitation’s minimum requirement.
  • Following an initial unsatisfactory explanation, GAO afforded the awardee an additional opportunity to explain the discrepancy, but GAO found that the declaration submitted by the key person and the awardee’s explanation did not clearly support the experience claimed. This misrepresentation was material because the agency relied on the claimed experience to favorably evaluate the awardee.
  • GAO determined that the integrity of the procurement system “demanded no less” than the remedy of excluding the awardee from the competition, and accordingly recommended that the agency disqualify the awardee for misrepresenting its key personnel.

GAO will carefully consider allegations that an offer has materially misrepresented its capabilities, experience, and qualifications. Moreover, in considering such allegations, GAO will assess extra-record evidence that was not before the agency at the time it evaluated proposals, such as publicly available LinkedIn information. Contractors should be aware that misrepresenting key personnel capabilities and experience remains an area ripe for bid protest litigation.

Investigations and Enforcement

4th Circuit Adopts Objective Reasonableness Standard for FCA Scienter 

  • Last week the 4th Circuit adopted the objective reasonableness standard for False Claims Act scienter.
  • In U.S. ex rel. Sheldon v. Allergan Sales, LLC, 2022 WL 21172, the Fourth Circuit held that the FCA’s scienter element (or, the knowingly portion of knowingly submitting false claims) is not present if the defendant’s interpretation of the rules was objectively reasonable and no other guidance from a court or from the government warned the defendant the interpretation was not reasonable.

The Fourth Circuit is an important judicial circuit because it covers Maryland and Virginia, where a substantial number of government contractors are based. We will be watching the development of the objective reasonableness standard closely.