Executive Orders

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What do you think is going to be scarier—artificial intelligence (AI) or the government’s effort to regulate AI? On October 30, 2023, the White House issued Executive Order (E.O.) 14410, Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. As the federal government’s latest foray into harnessing AI, this E.O.—like those before it, generally—recognizes that AI offers extraordinary potential and promise, provided that it is harnessed responsibly to prevent the exacerbation of societal harms. Since E.O. 14410, there has been a flurry of activity in the federal government, including guidance and policies providing an indication of how agencies can/should/will harness AI to support agency objectives. While we are far from a situation similar to Skynet from the Terminator franchise or HAL 9000 from 2001: A Space Odyssey, the government’s accelerated activity to reap AI’s potential benefits far outpaces the provision of actionable guidance so contractors can understand and adapt to what will be required in offering AI products and services to the government. So let’s open the pod bay doors and explore…Continue Reading Executive Order 14410: An Artificial Intelligence Odyssey

In 2006, the documentary An Inconvenient Truth chronicled former Vice President Al Gore’s efforts to educate the public on the consequences of climate change. In the sixteen years since the Academy Award-winning film was released, public interest in the impact that greenhouse gas (GHG) emissions have had, are having, and will have on our planet has increased exponentially. Most recently, at the 27th U.N. Climate Conference (COP27), countries from around the globe came together to discuss the implementation of battle plans to combat climate change. One such plan, which was discussed at COP 27 by President Biden, is a new Proposed Rule that would require “significant” and “major” federal contractors to disclose their GHG emissions and climate-related financial risk as well as set science-based targets to reduce their GHG emissions. If and when the Proposed Rule is finalized, it will have seismic implications for contractors, in that it ties contractor responsibility (i.e., a contractor’s ability to receive federal awards) to compliance with these requirements.
Continue Reading An Inconvenient Requirement: New Proposed Rule Would Require Federal Contractors to Disclose Greenhouse Gas Emissions

For just shy of a decade, the Defense Industrial Base (DIB) has had to operate under rules dictating the safeguarding of Controlled Unclassified Information, along with a strict 72-hour notification requirement if/when/should a “cyber incident” occur. For the uninitiated, these are the requirements found in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012. And for a large swath of government contractors, these requirements have been more bane than benefit, as many have struggled to meet the DFARS’ stringent requirements.

Well, critical infrastructure industry, welcome to the party! Soon, companies involved in all sectors of critical infrastructure will need to comply with new federal reporting requirements for cybersecurity incidents and ransom payments after President Joe Biden signed The Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the Act) into law on March 15, 2022. Tied to an omnibus appropriations package, the Act requires entities involved in critical infrastructure to report cyber incidents to the Cybersecurity and Infrastructure Security Agency (CISA) within 72 hours and any paid ransom demands within 24 hours. While these new reporting obligations will not become effective until CISA promulgates rules to further define requirements, as the DIB’s effort has demonstrated, it would be wise to examine best practices in incident response plans to begin sooner rather than later.Continue Reading Critical Infrastructure Industry Drafted: Welcome to the Cyber War

Regardless of whether they were eagerly anticipated or begrudgingly unavoidable, the changes promised to the Buy American Act (BAA) early last year have at last arrived, or at least are quickly approaching. On March 4, 2022, the Federal Acquisition Regulation (FAR) Council released its long-anticipated Final Rule implementing important revisions to the BAA provisions of the FAR and incorporating the requirements outlined in President Biden’s January 28, 2021 executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” Although the Final Rule, for the most part, conforms with the Proposed Rule issued in July 2021 (which we previously discussed here), the most notable aspect may be that the Final Rule’s effective date was delayed until October 25, 2022. This generous gap provides contractors with roughly 235 days to fortify their compliance efforts and ensure that necessary policies and procedures are in place to meet the necessary supply chain and regulatory changes imposed by the Final Rule — well  in advance of Halloween.
Continue Reading With Just a Little Ado: Significant Buy American Changes Are Coming Before Halloween

With Spring Training just a few weeks away it looks like the Biden Administration is stepping up to the plate to ensure the plans in its $1 trillion Infrastructure Investment and Jobs Act can avoid strikes. On February 4, 2022, President Biden signed the Executive Order on the Use of Project Labor Agreements for Federal Construction Projects (the Executive Order), which requires the federal government, in an effort to avoid potential labor disputes and delays in any “large-scale construction contract” (a project valued at over $35 million), to use project labor agreements before awarding a contract. The Executive Order is effective immediately, and construction contractors should begin seeing it applied in future and maybe even pending solicitations or orders. How, exactly, the Executive Order will appear in immediate solicitations is unclear, but the FAR Council is tasked with implementing the Executive Order within 120 days before promptly issuing a final rule. Before that happens, let’s tap the mud off the cleats and make sure you’re ready to play ball.
Continue Reading PLAy Ball! Executive Order Directs Project Labor Agreements for Construction Projects Over $35 Million

Judge R. Stan Baker of the US District Court for the Southern District of Georgia issued an order (Order) on December 7, 2021, enjoining the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” This comes on the heels of the November 30, 2021 order by a federal court in Kentucky (see our article here) blocking the federal government’s ability to enforce the obligation embedded in clauses in federal government contracts and other instruments requiring employees of federal contractors with covered contracts in Kentucky, Ohio, and Tennessee to be fully vaccinated by January 18, 2022.
Continue Reading Georgia Federal Court Blocks Federal Contractor COVID-19 Vaccine Mandate Nationwide

The Government’s enforcement of contract provisions implementing the COVID-19 vaccine mandate with regard to federal contractors and subcontractors required by President Biden’s Executive Order 14042 (the EO) was preliminarily enjoined by a federal court in Kentucky in a case brought by the states of Kentucky, Ohio, and Tennessee (and two Ohio sheriffs). In his Opinion and Order of November 30, 2021 (the Order), Judge Gregory F. Van Tatenhove of the US District Court for the Eastern District of Kentucky (the Kentucky court) concluded, among other findings, that it was likely that the President exceeded his authority under laws delegating to the President management of federal procurement and requiring federal agencies to engage in “full and open competition” procurements. The court also raised concerns about whether the President’s actions violated the Tenth Amendment of the Constitution and the “nondelegation doctrine,” a constitutional principle recognized by the US Supreme Court that Congress does not have unlimited discretion in delegating to the President the power to make laws.
Continue Reading Federal Contractor Vaccine Mandate Enjoined in Kentucky, Ohio, and Tennessee: The Implications

UPDATE: The Safer Federal Workforce Task Force issued updated Guidance on November 10 confirming that the date a covered employee must be fully vaccinated is January 18, 2022.

With the addition of new answers to frequently asked questions (FAQs) on November 1, and the November 4 “Fact Sheet” issued by the White House accompanying the rollout of the Department of Labor’s Occupational Safety and Health Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS) vaccination requirements for, respectively, employers with 100 or more employees and health care workers and facilities participating in Medicare and Medicaid, federal contractors have been given additional breathing room to address recalcitrant covered employees who are resisting the vaccination mandate.Continue Reading Important Updates on Federal Contractor Vaccine Mandate—Deadline Extended and Flexibility Added

The Government Contracts and Global Trade Group is pleased to provide a summary of some of the key class deviations and other memoranda published by U.S. Government agencies implementing the federal contractor COVID-19 vaccine mandate (Executive Order 14042). You may find a complete listing of all class deviations at Acquisition.gov.

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Four memoranda, released in the last several business days, provide federal contracting officers guidance and suggested clauses to implement President Biden’s Executive Order 14042 (the Executive Order) in federal contracts imposing mandatory vaccination and workplace safety protocols for covered federal contractors and their employees as early as October 15, 2021. Issued by the Federal Acquisition Regulatory Council (FAR Council) (the FAR Council Memo), the Civilian Agency Acquisition Council (CAAC) (the CAAC Memo), the Principal Director, Defense Pricing and Contracting for the Department of Defense (DoD) (the DoD Memo), and the General Services Administration’s Senior Procurement Executive (the GSA Memo) (which we will be discussing in a separate posting), the memoranda move quickly to provide all procuring activities the necessary tools to ensure that by October 8, all solicitations and contract subject to the Executive Order adhere to its mandates and the evolving guidance issued by the Safer Federal Workforce Task Force (issued September 24) (Task Force Guidance). For those unfamiliar with the Executive Order and the resulting Task Force Guidance, please feel free to review our prior discussions of those issues here and here.
Continue Reading The Clauses Implementing Vaccination Mandate for Federal Contractors Are Out—Key Considerations for Contractors