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Must an Offeror Notify an Agency of a Key Personnel Change After Proposal Submissions?

By Andrew Victor, Robert Nichols, and Sam Van Kopp

February 17, 2022

On February 4, 2022, the Court of Federal Claims (COFC) released a decision that both rejected a longstanding GAO rule regarding key personnel proposed for performance on government contracts and opened a rift within COFC’s own precedent.

In Golden IT, LLC v. United States, Judge Solomson made the otherwise prosaic observation that employees, beholden to “the simple facts of biology,” necessarily change jobs, retire, or die with an unpredictability unassuaged by its regularity.  No. 21-1966C, 2022 WL 334369, at *20 (Fed. Cl. Feb. 4, 2022).  As a result, key persons who were with a contractor when a proposal was submitted may no longer be available when a proposal is evaluated, or re-evaluated, or re-re-evaluated.  For decades,[1] GAO addressed this problem by obligating offerors “to advise agencies of material changes in proposed staffing, even after submissions of proposals.”[2]  COFC recognized this obligation in 2018.[3]

This rule obviously put both offerors and agency acquisition offerors in a precarious position.  Through no fault of their own, and only due to the laws of nature, an offeror’s proposal would not become ineligible for award – unless the agency engaged in discussions to allow the offeror to amend its proposal.  Opening the door to discussions for this simple issue could mean that every offeror receives an opportunity to make changes to its proposal in order to keep the discussions equal.[4]  This could mean significant delays to the acquisition.  And heaven forbid biology strikes again during the intervening period!

Judge Solomson  gave voice to many an offeror’s frustrations by noting that the rule appeared to have no “legal basis” in statute and imposed a blanket reporting obligation that might be irrelevant to the proposal at issue.  “[C]andidly,” Judge Solmson concluded, such a general rule was “unfair.”

In place of the old rule, Golden IT proposed a loose test: if the contractor “had a reasonable belief, at the time of its quote,” that the key person at issue would perform on the contract, the contractor’s proposal would not constitute a misrepresentation.[5]  That ‘reasonable belief’ would depend in part on the requirements of the proposal at issue: whether it required commitment letters from key personnel, or verification of key personnel availability, or updates regarding key personnel departures.[6]

Golden IT represents only one judge’s opinion, and it remains to be seen whether COFC, much less GAO, chooses to depart from precedent to spare contractors the additional responsibility of tracking its key personnel.  Golden IT may provide a quantum of solace, but contractors should be neither shaken nor stirred.

[1] Golden IT traced the rule that deliberate misrepresentations of key personnel in response to agency questions provided grounds for protest to Informatics, Inc., B-188566, 57 Comp. Gen. 217, 78-1 CPD ¶ 53, 1978 WL 13361 (Jan. 20, 1978), but it did not opine on how that logic metastasized into a reporting obligation.

[2] M.C. Dean, Inc., B-418553, 2020 CPD ¶ 206, 2020 WL 3639639, at *3 (June 15, 2020).

[3] Chenega Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 652 (2018)

[4] AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 369, opinion clarified, 87 Fed. Cl. 654 (2009) (discussing unequal pricing discussions).

[5] 2022 WL 334369, at *22

[6] Id. at 21.

2021 Federal Acquisition Regs Year-in-Review

By: Alan Chvotkin

February 10, 2022

Alan Chvotkin, a partner at Nichols Liu, has published his most recent article as a part of Executive Mosaic’s GovCon Expert program. In his latest piece, Chvotkin provides a look into the acquisition regulations and rules and policy changes that the federal and GovCon industries have undergone in the last twelve months as the nation underwent a technical shift and a change of administration.

Read the full article HERE.

Nichols Liu Wins Back-to-Back COFC Protests, Which Includes “Reversing” a GAO Decision

By Robert Nichols, Andrew Victor, and Madison Plummer

February 8, 2022

In 2019, Nichols Liu LLP published its Briefing Paper Should We Protest.  While the lawyers of the firm have handled some significant cases for major contractors (including three multi-billion-dollar protests last year), last month we were involved in an unusual circumstance at the U.S. Court of Federal Claims (COFC): persuading the COFC to effectively “reverse” a GAO decision in one case, while preserving its client’s award with novel legal arguments in the second case.

Rare Reversal of GAO Decision

In CGS-SPP Security Joint Venture v. United States, the U.S. Department of State sought guard services for the U.S. Embassy in Australia, with award to be made on the low-price-technically-acceptable (LPTA) basis.  The solicitation included inconsistent provisions regarding the submission of proposals: one provision instructed offerors to deliver proposals to a post office box at the U.S. Department of State, while the other provision instructed offerors to email their proposals to the same office but lacked a designated recipient or an email address.

CGS-SPP Security Joint Venture (CGS-SPP) reasonably emailed its proposal to the Contracting Officer listed on the cover page of the solicitation.  That person, however, did not read CGS-SPP’s email because she had given internal direction to her Contract Specialist to collect all proposals for evaluation.  The Contract Specialist was unaware of the proposal, since CGS-SPP did not copy him on the email, so the agency unintentionally omitted the proposal from its evaluations.

When CGS-SPP learned of the award to a competitor—at a higher price than CGS-SPP had submitted—it asked Nichols Liu to challenge the decision at GAO.  GAO found that the solicitation was patently ambiguous and that CGS-SPP should have filed a pre-award bid protest of the ambiguity.  GAO therefore dismissed the post-award protest as untimely.

Parties that disagree with an outcome at GAO can file a second protest at the COFC.  These follow-on actions are not technically appeals in that the court does not affirm or vacate the GAO decision.  Rather, the COFC makes its own independent ruling, although it often agrees with GAO’s reasoning and outcome.

CGS-SPP followed this process.  At the Court, CGS-SPP acknowledged the solicitation’s inconsistency in the method of submitting proposals and the lack of designated recipient in the solicitation, but persuaded the Court that it had acted reasonably in submitting the proposal via email.  CGS-SPP also successfully claimed that it had acted reasonably in submitting its proposal to the correct government office and the designated contracting officer.  To the extent the agency intended for the Contract Specialist to receive proposals, the solicitation did not say so, and any ambiguity as to the proper recipient was not apparent on the face of the solicitation—thus contradicting GAO.  The Court enjoined the award and ordered the agency to recompete the contract or reevaluate proposals to include CSG-SPP’s proposal.

Hopefully this reevaluation will lead to the agency “flipping” the award to CGS-SPP, which should be the LPTA offeror.  As Dan Gordon, the former head of bid protests at GAO, said in his article Bid Protests: The Costs are Real, But the Benefits Outweigh Them, this is an exceedingly rare circumstance.

Case of First Impression at the COFC on SAM Registration

In the other case, G4S Secure Integration LLC v. United States, disappointed offeror, G4S Secure Integration, LLC (“G4S”), protested the award of a State Department contract for security services for the U.S. Embassy in Angola to CGS-ORSA Security, LLC (“CGS-ORSA”).  In a case of first impression at the COFC, the court opined that the requirements set forth in FAR 52.204-7 (July 2018) regarding System for Award Management (“SAM”) registration are mandatory.

The solicitation incorporated FAR 52.204-7, which requires offerors to register in SAM before submitting an offer.  Both G4S and CGS-ORSA submitted their respective proposals as joint ventures (“JVs”), a common business practice.  Although CGS-ORSA’s individual partners were registered in SAM, G4S argued that CGS-ORSA, the JV entity itself, was not registered.

In deciding the protest, the court held that the registration requirements in FAR 52.204-7 apply to JV entities, not just their members.  In making its ruling, the court distinguished GAO decisions addressing analogous circumstances because the procurements were FAR Part 14 procurements and the award being protested was a FAR Part 15 procurement.

Despite the lack of registration, the Court held G4S was not prejudiced.  To prevail in a protest, the protester must not only prove that the agency erred but also that, but for the error, the protester would have had a substantial chance of receiving the award.  CGS-ORSA noted a particular iteration of the prejudice rule—i.e., a protester is not prejudiced when it also benefits from an agency’s error.  While G4S was also a JV with its members registered with SAM, the JV entity itself was not.  Simply stated, G4S could not establish that it had a substantial chance of receiving the award and could not prevail.

The court’s decision leaves two takeaways for contractors:

Differences Can Arise Between GAO and COFC.  Under GAO’s analyses of the FAR clause, minor informalities related to SAM registration are waivable.  But the court held these same errors are not waivable in the FAR Part 15 context.  This holding seems to conflict with GAO’s repeated point that SAM registration is a matter concerning responsibility, and not a material obligation of the offeror.  Although the opportunity to cure minor errors is a rule under FAR Part 14 procurements, responsibility determinations and the SAM registration requirement under FAR 52.204-7 apply to all procurements.  Moreover, FAR Part 15 procurements allow offerors to correct mistakes and deficiencies before award, such as through discussions.  We believe that we haven’t seen the last of these kinds of cases and that there will be future decisions that focus on responsibility and FAR Part 15 procurements.

Proper SAM Registration is Paramount.  SAM registration is not as simple as it seems.  As with other entities, unincorporated JVs can register in SAM with (1) a unique Tax Identification Number (“TIN”) from the IRS; (2) a unique identity identifier (a DUNS Number); and (3) a bank account.  Contractors should start registration ASAP and resolve any issues that might arise in the process.  Having the JV entity registered prior to offer submission should mitigate the protest issues litigated in the G4S case.

Note to Contractors: Substantiate All Claims, “Rudimentary Recordkeeping and Approximated Claims” May Not Be Enough

By Andy Liu, Andrew Victor, and Haaleh Katouzian

February 3, 2022

A century after Justice Oliver Wendell Holmes Jr. wrote that one “must turn square corners when they deal with the Government,” the Court of Federal Claims issued a decision reminding contractors of this sage advice.  Calling the case a “cautionary tale to government contractors,” the Court of Federal Claims, in Lodge Construction, Inc. v. United States, No. 13-499; 13800 (Fed. Cl. Jan. 10, 2022), found that Lodge Construction, Inc. (“Lodge”) violated the False Claims Act when it submitted certified costs claims in connection with a fixed-price contract with the Army Corps of Engineers (“Corps”).

Lodge originally brought the suit against the Government after being terminated for default.  The Government then brought counterclaims against Lodge for its violations of the False Claims Act.

Government contractors are required to certify their claims to the Government.  Certification means “ensur[ing] a claim submitted for payment is accurate or truthful.”  Ultimately, the Court held that Lodge 1) overvalued its dump-trucks, affecting its claims submitted to the Corps; 2) manipulated its “inefficiency ratio” (and even inputted days outside of the claim period in the inefficiency ratio), resulting in inflated damages; 3) fraudulently inflated its operating costs; and 4) double-billed for costs already received in fixed monthly payments.

The court noted that when contractors “seek to recoup sums of money” from the Federal Government, and thus burden taxpayers, rudimentary and approximated claims are likely insufficient.  “When job cost data and recordkeeping are inaccurate, the claim will inevitably contain errors and the line between negligence and reckless disregard for the truth becomes vanishingly thin. Cross it, and the government contractor’s claim becomes fraudulent as a matter of law, a designation that carries financial, practical, and stigmatic consequences.”

Notably, Lodge originally admitted that the submitted claims contained errors, but then ultimately “doubled down” on its claims and argued that the information in its claims were intentional, not mistakes – seemingly making it easier for the court to find that Lodge acted with the requisite degree of scienter under the FCA.

The Consequence of Failing to Re-certify as a Small Business After Merger in Multiple Award Contracts: Apparently No Consequence

By Sam Van Kopp and Andrew Victor

January 25, 2022

In Odyssey Systems Consulting Grp., Ltd., the Office of Hearings and Appeals (“OHA”) of the Small Business Administration (“SBA”) decided its first size appeal interpreting SBA’s October 2020 final rule as it relates to small business mergers and size re-certifications in task order competitions under Multiple Award Contracts (“MACs”).  While OHA ultimately decided the appeal on timeliness grounds, OHA provided commentary that suggests that it will permit the target of mergers to remain eligible for task orders despite becoming other than small.

Generally, a business must certify as “small” when submitting an offer for a set-aside contract.  As SBA clarified in its October 2020 final rule, re-certification requirements for contractors bidding on task orders under an unrestricted or small business set-aside MAC are slightly different.  When a small business bids on a task order issued pursuant to a set-aside MAC, it is not obligated to re-certify as a small business.  Since MACs may last for many years, this raises a question of fairness when the small business has grown to become other than small, as may occur if the business is the target of a merger.  As a result, SBA’s final rule amended 13 CFR § 121.404(g) so that, if a merger occurs “within 180 days of an offer and the offeror is unable to recertify as small, it will not be eligible as a small business to receive the award of the contract.”  SBA added that in set-aside MACs, “the agency cannot count any new or pending orders issued pursuant to the contract [after the merger] towards its small business goals.”  The additional language seemed unnecessary— why specify that a contract can’t count towards a small business goal if the awardee is ineligible in the first place?

Odyssey Systems involved just such a question.  Appellant Odyssey Systems protested the award of a set-aside MAC task order to Millennium Engineering and Integration LLC (“MEI”), which had merged within 180 days of its offer.  The merger rendered MEI other than small, but MEI did not re-certify its size and the CO did not request re-certification.  Odyssey Systems argued that SBA’s revised rules required MEI to re-certify it size status, which would make it ineligible for award.

OHA denied the appeal on timeliness grounds, but also commented on the SBA’s new language in § 121.404(g).  OHA concluded that “the consequence of a merger or acquisition involving a prime contractor is not that the prime contractor becomes ineligible for award of pending or future task orders, but rather that the procuring agency cannot claim goaling credit for those orders.”  Otherwise, “there would be no need to clarify that a procuring agency could not claim goaling credit for new orders issued to a prime contractor following a merger or acquisition, if the prime contractor were not eligible for such orders in the first instance.”

The upshot is that OHA’s interpretation represents a practical approach to the realities of small businesses.  As SBA reiterated in its final rule, the agency encourages growth and does not want to either disrupt the procurement process or discourage firms from doing business with the government.

Supreme Court’s Vaccine Mandate Decision Could Affect Federal Contractors’ COVID Requirement

January 11, 2022

By Alan Chvotkin

Supreme Court’s Vaccine Mandate Decision Could Have Implications

On January 7, 2022, the U.S. Supreme Court held an unusual oral argument on two petitions for emergency stays of COVID 19 vaccine mandates issued by the Occupational Safety and Health Administration (OSHA), applicable to private sector employers with 100 or more employees, and by the Centers for Medicare and Medicaid Services (CMS), applicable to certain nursing and skilled care facilities. Although not the primary subject of these cases, the line of questioning and the Court’s ruling could have implications for President Biden’s September 2021 Executive Order and the federal procurement rules that mandate vaccinations for certain federal contractors.

Also on January 7, I was interviewed by Federal Computer Week (FCW)/Government Executive about the relationship between the two cases at issue before the Supreme Court and the federal contractor rule. As mentioned in the article:

Alan Chvotkin, a partner at the law firm of Nichols Liu and a longtime specialist in government contracting law, told FCW that if the High Court agrees to block the implementation of OSHA and CMS requirements, “that would be a pretty good signal that that’s how they would evaluate the [the Federal Property and Administrative Services Act] scope of authority for contractors.”

Either way, he stressed, what contracting companies ultimately want is clarity.

Just tell us what the rules are. Make a decision,” Chvotkin said. “The ambiguity and the uncertainty is worse.

The full text of the article is available at Supreme Court hearing turns to the contractor mandate – FCW.

A Supreme Court’s vaccine mandate decision is expected very soon on the two pending emergency requests that generated this rare court oral argument.

We will continue to closely monitor developments and provide our clients with the most up-to-date information available about these and related cases and federal actions. If you have any questions or need any additional information, please do not hesitate to contact the undersigned.

Alan Chvotkin
Partner
Nichols Liu LLP
700 Sixth St. NW, Ste. 430
Washington, DC 20001
O 202-846-9806 | M 202-255-3786
achvotkin[at]nicholsliu.com  | www.nicholsliu.com

Federal COVID vaccine mandate for federal contractors halted, with appeals likely.

December 8, 2021

By Alan Chvotkin

On December 7, 2021, in Georgia’s Southern District, U.S. District Court Judge R. Stan Baker issued a nationwide injunction blocking the enforcement of the Federal COVID vaccine “mandate” for federal contractors and subcontractors in all covered contracts. The Georgia decision is the second to overturn the federal contractor vaccine mandate; on November 30, a federal judge in Kentucky imposed a similar ban on enforcement but limited the scope of his prohibition to contracts and subcontracts in only the three states that were the plaintiffs in that suit – Kentucky, Ohio and Tennessee. However, other federal district courts that have considered the same issue refused to issue any halt to its implementation.

Again on December 7, the Biden Administration reaffirmed its support for the Federal COVID vaccine mandate for contracts and subcontractors. It will almost certainly appeal to overturn the Georgia court’s immediate nationwide injunction as well as its view of the scope of the President’s authority to impose the vaccine mandate on federal contractors and subcontractors doing business with the Federal Government. The U.S. Justice Department has already appealed the Kentucky 3-state injunction and the underlying rationale for the Kentucky court’s decision.

While the president has broad authority to manage the Federal Government’s procurements and its processes, it has long been recognized that this authority is not unlimited. Federal judges have previously reviewed executive actions by former presidents, and now by President Biden, as exceeding the authority provided under the Federal Property and Administrative Services Act. However, not every federal district court judge, appeals court, or even the Supreme Court, has been consistent in deciding the scope of that statutory and presidential authority.

With respect to the FAR COVID rule, the scope of the president’s authority will have to play out in multiple venues before there is a clear resolution to the President’s mandate of contractor vaccinations for COVID. For contractors, one of the most valuable aspects of the FAR procurement rule is the assertion of “federal preemption” over inconsistent state or local law. Without that protection, federal contractors who have an interest in requiring vaccinations for their own workforces will now have to navigate through the patchwork of state and local authorities – some of which oppose the vaccine “mandate” and some of which require it.

We will continue to closely monitor developments and provide our clients with the most up-to-date information available about these and related cases and federal actions.

If you have any questions or need any additional information, please do not hesitate to contact the undersigned.

 

Alan Chvotkin
Partner
Nichols Liu LLP
700 Sixth St. NW, Ste. 430
Washington, DC 20001
O 202-846-9806 | M 202-255-3786
achvotkin[at]nicholsliu.com  | www.nicholsliu.com

Comparing the OSHA ETS and FAR Covid-19 rules – what government contractors should know.

November 22, 2021

By Alan Chvotkin

On November 5, the Department of Labor’s Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard ( OSHA ETS ) interim final rule, effective on December 6, 2021 except for the vaccination requirement that is effective January 4, 2022.[1] It is generally applicable to all employers who have at any time after the effective date more than 100 employees.

In addition, on September 30, 2021, the FAR Council issued a Class Deviation to require certain federal contractors to adopt policies and take action to vaccinate covered employees working on or in connection with a certain federal contracts or contract-like instruments. The “FAR COVID Procurement Rule” covers both the FAR class deviation as well as the Safer Federal Workforce Guidance documents and Frequently Asked Questions, as updated periodically. The last update to those FAQs was November 10, 2021.

On November 1, the White House issued a statement that the vaccination dates for both the mandate for vaccinations under the FAR COVID Procurement Rule will align with the January 4, 2022 vaccination date in the OSHA ETS rule. The Contractor FAQs were updated on November 11 to align the FAR rule with the OSHA ETS rule.

More than 30 suits have already been filed to challenge the OSHA ETS, with suits filed in every one of the Federal Circuits. However, on November 6, a panel of the 5th Circuit Court of Appeals issued a temporary nation-wide stay of implementation.[2] On November 11, that panel reaffirmed their stay of implementation.[3] On November 16, the Judicial Panel on Multi-District Litigation conducted a “bingo ball” selection to designate the 6th Circuit as the lead federal circuit for addressing this nation-wide litigation.

In addition, dozens of suits have been filed challenging the Biden Executive Orders requiring federal employee and military vaccinations and the FAR COVID procurement rule generally requiring federal contractor employee vaccinations. Most of the cases are still at the complaint stage, although the U.S. District Court for the District of Columbia on November 8[4] denied a TRO request, concluding that the plaintiffs failed to meet any of the circumstances that allow for the issuance of an injunction.

Starting Point for Determining Coverage

For purposes of determining an employer’s coverage, it is best to begin with the question of what and who is covered by the FAR COVID procurement rule. If there is coverage under the FAR rule, there is an exemption from coverage under the OSHA ETS. But not every contractor employee is covered by the FAR rule.

If there is no application of the FAR rule to covered contractors or their covered employees, is there an exemption under the OSHA ETS for any individual or group of employees? If there is an exemption, then the ETS does not apply to that subset of employees.

If there is no exemption for an employee or group of employees, an employer is required to comply with the OSHA ETS requirements.

It is likely that, despite the broad scope of applicability, many of an employer’s workplaces will not be the location for the performance of a government contract by “covered” contractor employees. Thus, for those locations, the OSHA ETS rule may apply.

What are significant differences between the OSHA ETS and the FAR COVID procurement rule?

Work from Home

The Safer Federal Workforce Task Force FAQ makes it clear that an employee working from home is still a “covered contractor employee” and subject to the requirements for vaccination (or exemption). Working from home is not an automatic exemption. By contrast, the OSHA ETS provides an exemption from both the vaccination and the alternative of weekly testing for an employee who works exclusively from home.

Masking Requirements

Under the Safer Federal Workforce Task Force Guidance, in areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions discussed in this Guidance. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.

Where an employee is not fully vaccinated, the OSHA ETS provides an alternative compliance approach of weekly COVID testing coupled with mask wearing and social distancing.

Flow down

The FAR rule requires a mandatory flow down of the FAR clause to covered first tier subcontractors except those that are providing “products” or that are otherwise exempt. The OSHA ETS has no such flow down requirement.

Preemption

Both the OSHA rule and the FAR COVID procurement rule provide for preemption of inconsistent state and local laws. In addition, the FAR procurement rule specifically approves of contractor implementation policies that provide greater coverage than the FAR procurement rule; the OSHA ETS is silent on “over and above” coverage.

But both preemption provisions only operate where there is a direct overlap of requirements between the federal rule and an inconsistent state or local law, rule or regulation. Preemption is already the subject of (or part of) the complaints in numerous lawsuits challenging both the FAR COVID procurement rule and the OSHA ETS.

Support for Employee Vaccination; Paid Leave; Paid Sick Leave

OSHA ETS requires employers to provide paid time off for employees to get a vaccination and to provide paid sick leave for employees to recover from any primary vaccination dose. The FAR COVID procurement rule has no similar mandate.

Testing

The OSHA rule provides for covered employees who are not vaccinated to be tested for COVID at least weekly. The FAR rule provides no testing alternative.

Work Outdoors

The Safer Federal Workforce Task Force Guidance provides that this Guidance applies to contractor or subcontractor workplace locations that are outdoors. The OSHA ETS fully exempts workers whose work is always outdoors.

“Campus Facilities”

The Safer Federal Workforce Task Force Guidance provides that unless a covered contractor can affirmatively determine that none of its employees on another floor or in separate areas of the building will encounter a covered contractor employee during the period of performance of a covered contract, the facility is a “covered contractor workplace.”

The OSHA ETS has similar but not as extensive coverage. OSHA ETS exempts workplaces covered by the FAR COVID rule, and exempts employees (1) who do not report to a workplace where other employees are present; (2) while working from home; or (3) who work exclusively outdoors.

Alternative to Vaccination

The Safer Federal Workforce Task Force Guidance has an exemption from mandatory vaccination where a contractor grants an employee’s request for an exemption for medical reasons or for sincerely held religious beliefs. The OSHA ETS acknowledges these exemptions but does not explicitly provide for such exemptions from its coverage; rather, it has an alternative compliance approach to vaccinations of weekly COVID testing coupled with mask wearing and social distancing.

Recordkeeping

The OSHA ETS requires extensive recordkeeping and reporting requirements by employers relating to employee vaccination status and employee test results. The FAR rule only requires covered contractors to maintain records of proof of employee vaccination or granted exemptions.

Conclusion

The outcome and timing of the OSHA ETS litigation will have a significant impact on all covered businesses, including federal contractors. Similarly, I’ll be watching as litigation around the FAR procurement requirements make their way through the courts.

If you have any questions or need any additional information, please do not hesitate to contact the undersigned.

Alan Chvotkin
Partner
Nichols Liu LLP
700 Sixth St. NW, Ste. 430
Washington, DC 20001
O 202-846-9806 | M 202-255-3786
achvotkin[at]nicholsliu.com  | www.nicholsliu.com

 

References

[1] The OSHA ETS is available at https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23643.pdf.

[2] The panel’s November 6, 2021 decision is available at https://s3.documentcloud.org/documents/21099470/5th-circuit-stay-on-vaccine-mandate.pdf.

[3] The panel’s November 11, 2021 decision is available at https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.

[4] Church v. Biden, (USDCDC, Nov 8, 2021), available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cv2815-17.