Effective government procurement relies on economically savvy and efficient methods. Presidential Executive Orders are a means by which the President can exercise their authority over government procurement and maintain such efficiency. However, broad regulations that force specific health rules upon government contractors are a slippery slope. This was particularly an issue in the wake of the Coronavirus pandemic (COVID-19), a global pandemic that reached the United States in January 2020. By March 2020, President Donald J. Trump declared a national emergency and issued emergency travel bans, marking the beginning of a national shutdown. When President Joseph R. Biden assumed office in January of 2021, his administration issued subsequent COVID-19 emergency measures, one of which mandated government contractors to receive a COVID-19 vaccine. He issued this mandate under the authority embedded in the Federal Property and Administrative Services Act of 1949 (FPASA or “the Act”). This COVID-19 vaccine mandate for government contractors was an overstep of President Biden’s authority given to him under the FPASA. Health mandates like this surpass the realm of ensuring economic and efficient government procurement. In the future, the FPASA should be narrowly construed and applied to government contracting.
At the height of the Coronavirus pandemic (COVID-19), President Joseph R. Biden issued numerous executive orders, many of which responded to curtailing the rapid spread of the virus. One such measure directly impacted government procurement and contracting officers alike: a COVID-19 vaccine mandate. On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. President Biden relied on the Federal Property and Administrative Services Act (FPASA or “the Act”) to order all government contractors to provide “adequate COVID-19 safeguards to their workers.” Vaccine mandates quickly became politically polarizing. A circuit split in the American federal judiciary emerged over this executive order.
FPASA, 40 U.S.C. § 101, provides the federal government with an “economical and efficient system” for “[p]rocuring and supplying . . . services, and performing related functions including contracting.” As will be discussed in Section III, the Fifth and Sixth Circuits ruled that the Biden administration “overstepped its authority” under the FPASA. Per the Fifth and Sixth Circuits’ holdings, the FPASA does not allow the President to set a precedent in the realm of public health; it merely controls the President’s authority over the contractor workplace. In contrast, Judge Mark J. Bennett of the Ninth Circuit cited the FPASA’s purpose, which aligns with President Biden’s vaccine mandate. Before remanding the case, the Ninth Circuit held that those who work in connection with government projects should be vaccinated to further FPASA’s purpose of promoting economy and efficiency.
Imposing this harsh protocol on government contractors was a tremendous problem, particularly for those in the defense business. As a result of President Biden’s mandate, the U.S. Department of Defense (DoD) contractor employees needed to receive the vaccination by December 8, 2021, or “risk being fired” by their employer, as provided in the mandate. Thus, defense firms became concerned with worker loss. If employees failed to demonstrate proof of vaccination by a certain date, they would typically face termination per company policies. This concern subsequently translated into one of economics, as government contractors began proactively hiring more individuals to compensate for those who would quit because of the mandate.
Members of the U.S. House Committee on Armed Services (HASC) also expressed concern over the mandate’s effects, including compromised supply chains, “the livelihood of civilian contractors,” and a loss of “critical experience in skilled labor.” For small contractors, especially those who faced “the loss of contracts from the Pentagon” and “lack large [human resources] departments,” the mandate was especially onerous. Due to the large breadth of individuals the DoD contracts with, the mandate put the “important and critical performance of our [defense] industry in jeopardy.”
In response to the COVID-19 pandemic, the 116th Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). One provision of the CARES Act mandated the Government Accountability Office (GAO) to comprehensively review and “conduct an independent evaluation” of COVID-19 federal contracting. The GAO concluded that, as of June 11, 2020, “government-wide contract obligations [for critical goods and services] in response to the COVID-19 pandemic totaled $17.8 billion.” The COVID-19 pandemic primarily presented issues for supply chains nationwide, including manufacturing, raw materials, and finished goods. Moreover, compliance with vaccine mandates across the nation put approximately “44,966,434 American jobs at risk” and cost U.S. businesses an estimated $1.29 billion. The upsides of COVID-19 on government procurement were newfound contracting opportunities with pharmaceutical and medical-device companies.
Under the FPASA, the necessary power is not vested in the President to mandate specific health requirements for the employees of government contractors. Section II will address the FPASA’s background, its purpose, and the scope of control given to the President in other contexts. It will then discuss the FPASA’s role in the context of executive orders issued by President Biden. More importantly, Section II demonstrates that the scope of the COVID-19 vaccine mandate for government contractors falls outside the scope of the power granted to President Biden under the FPASA. Section III analyzes the circuit court of appeals’ split on this issue and the legal implications of such a split. The final section of this Note will provide suggestions and predictions regarding the trajectory of the FPASA’s application in the future. Congress should provide clarity on the interpretation of the FPASA’s language and application. The Fifth and Sixth Circuits provide a cogent framework for applying the FPASA in future contracting matters, but their analysis is insufficient to draw a bright-line rule as to the FPASA’s scope.
Promoting economy and efficiency in government procurement is essential to bolster workers’ productivity, “reduce labor costs,” and “decrease worker absence.” However, the FPASA provides only a limited grant of authority to promote such economy and efficiency. The Fifth and Sixth Circuits are concerned that upholding such an unprecedented mandate will enable the executive branch to require federal contractors to comply with health orders that transcend vaccinations. These two courts also held that the scope of this mandate is striking, as the FPASA’s history and purpose, as well as its delegation of authority, limit the President to a supervisory role implementing policy rather than authorizing a unilateral, broad policy-making power to implement a vaccine mandate.
Section 205(a) of the FPASA states that the President “may prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act.” However, this Note asserts that the policies prescribed must be consistent with the goals of the FPASA. The FPASA’s grant of presidential authority is “broad, but it is not unqualified.” Hence, there must be a “sufficiently close nexus” between the President’s enacted policies and the goal of promoting “economy” and “efficiency” in government contracting. There is no bright line standard for determining when the President’s actions are within the scope of the FPASA’s authority or when the President’s actions have surpassed it.
Section 205(a) was added by Congress in 1949 to guarantee that “[p]residential policies and directives shall govern—not merely guide.” At that time, the FPASA also created the General Services Administration (GSA). It is evident that Congress, in promulgating the FPASA, intended for the President to supervise government procurement directly and actively. Consistent with the requirement of full and open competition, § 201 of the FPASA maintains that government procurement should proceed in a manner “advantageous to the Government in terms of economy, efficiency, or service.” Similar verbiage is found in the regulation governing sealed bidding, which also mandates the award of bids to those “most advantageous to the Government.”
The FPASA was amended in 1965, becoming the “organic authority for most of the regulations controlling procurement decisions.” These amendments effectively “extended the reach of the FPASA to most federal agencies,” since previously the FPASA’s “scheme of procurement” was only applicable to the GSA. Since those amendments, the FPASA has been invoked by the President when issuing broad-sweeping executive orders. For instance, in 1981, the U.S. District of Columbia Circuit Court of Appeals held that other co-existing legislation does not “truncate or displace pre-existing FPASA authority.”
As reflected by legislative history, the provisions of the FPASA should be read together as “cabining the President’s authority.” The original FPASA 1949 version read that “[t]he President may prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of this Act, which policies and directives shall govern the Administrator and executive agencies in carrying out their respective functions hereunder.” The 2002 recodification of the FPASA made “no substantive change” to its language. In 1979, the Supreme Court recommended that the President’s authority should be drawn only from a “specific reference” within the FPASA.
By way of a more recent example, on September 22, 2020, President Donald J. Trump invoked statutory authority vested in him by the FPASA to “promote unity in the Federal workforce, and to combat offensive and Anti-American race and sex stereotyping and scapegoating.” President Trump justified the power granted to him under the FPASA claiming that contractors’ “race or sex stereotyping” training undermined “efficiency in [f]ederal contracting.” The U.S. Department of Labor (DoL) subsequently suspended enforcement of this mandate following the grant of a nationwide preliminary injunction.
The terms “economy” and “efficiency” are ambiguous in limiting presidential power under the FPASA. Some jurisdictions interpret these terms broadly and define them as encompassing “price, quality, suitability, and availability of goods or services that are involved in all acquisition decisions.” Other jurisdictions apply a narrower interpretation of these terms, limiting “economy” and “efficiency” to the context of specific government-contracting systems rather than controlling contractors themselves. Consistent with the position of this Note, the President’s authority under the FPASA should be limited to “instruct other actors to exercise their own statutory authority.” To maintain an economically sound and efficient government procurement system, as suggested by the Sixth Circuit, the President should utilize the FPASA’s limited grant of authority to simply make “the government’s entry into contracts less duplicative and inefficient.” For instance, the President restraining contracting costs falls within the scope of the Act’s terms “economy” and “efficiency.”
A particularly good example of encouraging “economy” and “efficiency” in government procurement was President Biden’s Executive Order on government contracting project labor. Relying on the FPASA’s authority, President Biden issued Executive Order 14063, Executive Order on Use of Project Labor Agreements For Federal Construction Projects, on February 4, 2022. This Executive Order specified that labor agreements aid in competition, contain “guarantees against strikes, lockouts, and similar job disruptions,” provide “effective” and “prompt” procedures for “resolving labor disputes,” and propel “labor-management cooperation.” It need not apply if such an agreement “would not advance the Federal Government’s interest in achieving economy and efficiency in Federal procurement.” Here, there is a sensible connection between large-scale projects and the need for practical labor agreements, which logically increase the efficiency of government contractor employees.
President Biden issued Executive Order 14026, Executive Order on Increasing the Minimum Wage for Federal Contractors, on April 21, 2021. Once again, relying on the power vested under the FPASA, President Biden mandated that federal contractors increase their respective employees’ minimum wage from $10.10 to $15.00 per hour. This mandate was intended to strengthen “worker productivity and generate higher-quality work.” On November 24, 2021, the DoL subsequently issued its Final Rule, Increasing the Minimum Wage for Federal Contractors. This Final Rule effectively implemented Executive Order 14026.
To challenge the mandate’s legality, Texas, Louisiana, and Mississippi sued President Biden, the DoL, and other government officials. Judge Drew B. Tipton of the United States District Court for the Southern District of Texas was the first federal judge to deem Executive Order 14026 an overreach of President Biden’s authority under the FPASA in Texas v. Biden. Judge Tipton ultimately blocked the enforcement of the wage mandate in those three states, finding the President’s power under the FPASA to be “unambiguously” limited to the “supervisory role of buying and selling goods.” This reasoning aligns with the best interest of the contractors. Economic analyses demonstrate that an increased minimum wage for government contractors presents a problem of wage compression, which “creates labor market problems” for government contractors. While boosting the minimum wage has benefits, such as fostering the talent and skill of employees, the “quality of the critical public services provided” by government contractors could be reduced. This result no longer falls within the desired “economy” and “efficiency” goals of the FPASA.
Per a notice released by the Wage and Hour Division of the DoL on September 28, 2023, the hourly minimum wage for certain government contractor employees once again increased to $17.20 on January 1, 2024. Due to the federal injunction issued by Judge Tipton in Texas v. Biden, this final rule implementing President Biden’s Executive Order was not be enforced with respect to contracts or subcontracts “to which the states of Texas, Louisiana, or Mississippi (including their agencies) are a party.”
The backlash from this Executive Order illustrates how courts narrowly interpret “economy” and “efficiency” under the FPASA. Even three years later, as of February 2024, oral arguments were still being heard in lawsuits challenging this mandate.
Especially for small businesses, such mandates do the opposite of promoting economy and efficiency. As a result of Biden’s mandate, on June 27, 2023, the National Federation of Independent Business (NFIB) filed an amicus brief with the Ninth Circuit. The brief asserts that small government contractors, subcontractors, and “small entities seeking to gain government contracts” would struggle because of the mandate. More critical to the point at hand, the NFIB argued that “Congress did not, through vague words and imprecise drafting, grant the President unfettered discretion to remake a significant portion of the American economy and saddle hundreds of thousands of private businesses with job-killing minimum wage requirements.”
The wage and vaccine mandate alike have seemingly beneficial effects, such as prioritizing the health, wealth, and well-being of American workers. However, the ripple effects of the President issuing broad-sweeping mandates disregarding long-term effects are dangerous for companies that are not large conglomerates. In the future, executive orders issued under the guise of the FPASA authority should use limiting language to apply solely to companies that can bear the risks associated with the mandates.
Four circuits have addressed the issue of the COVID-19 vaccine mandate for government contractor employees, resulting in a prominent circuit split between circuits that agree with President Biden’s mandate and those that do not: the Ninth Circuit versus the Fifth, Sixth, and Eleventh Circuits, respectively. At the dawn of a post-COVID-19 era, it is “highly unlikely” that the Supreme Court will settle this split by making an affirmative ruling. Since the national emergency has passed and the Supreme Court “decides fewer than 100 argued cases annually,” it seems as though the circuit courts’ differing rulings on the vaccine mandate will remain unsettled. Generally, circuit splits are considered dangerous because they “undermine the uniformity, consistency, and predictability of federal law.” In the federal procurement context, uniformity is prioritized, as indicated by the goals of the FPASA. This circuit split presents dangers for the future of executive orders issued under the FPASA. The “Supreme Court has had little occasion to review presidential authority” under the FPASA.
A circuit split leads to “forum shopping,” when parties can receive a favorable outcome in certain circuits, motivating them to choose a different jurisdiction. Logically, government contractors who either disagree with the COVID-19 vaccine mandate or cannot afford it (such as small contractors, as aforementioned) will “gravitate toward their respective safe harbors.” While some believe forum shopping is an “abusive tactic,” it allows plaintiffs to litigate their cases strategically, the Supreme Court to resolve disputes, and courts of appeals to take starkly differing positions on interpretations of law. However, since the negative implications outweigh the positive, the circuit split’s implications on forum shopping should provide even more incentive for Congress to issue cohesive guidance.
Decisions from the Fifth, Sixth, and Eleventh Circuits align most closely with the FPASA’s goals, as well as the limited delegation of power to the President under the FPASA. The NFIB phrased it perfectly: the FPASA is solely a “limited congressional delegation of legislative authority.” Similarly, their reasoning aligns with the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
By way of background, federal contractors make up “approximately one-fifth of the U.S. labor force” and are, therefore, essential to the function of the U.S. government. On September 24, 1965, President Lyndon B. Johnson signed Executive Order 11246, establishing “requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors.” To date, this executive order remains illustrative of the importance of federal contractors and their analogous treatment to other federal employees. Securing federal contracts can be considered “lucrative,” as the contracts range from “manufacturing missile defense systems [to] serving hot meals.” Regardless of the type of contract, the procurement process and result must be efficient and effective, as mandated by the FPASA. To name a few, the means by which efficiency and effectiveness can be achieved are through competitive procedures, full and open competition, and small business allocations.
In Louisiana v. Biden, a panel for the U.S. Court of Appeals for the Fifth Circuit held that the COVID-19 vaccine mandate would cause “enormous, [and] transformative . . . expansion of the powers of the [P]resident without clear authorization from Congress.” The majority states quite succinctly that “[t]he President’s use of procurement regulations to reach through an employing contractor to force obligations on individual employees is truly unprecedented.” The Fifth Circuit accurately draws upon previous executive orders which have utilized the President’s power under the FPASA. For instance, Executive Order 13465 was issued by President George W. Bush and “mandated that all federal contractors agree to use an electronic employment eligibility verification system.” When the U.S. Chamber of Commerce sued in response to this order, the U.S. District Court for the District of Maryland found that contractors’ use of an electronic verification system was “consistent with the [FPASA]” and justifiably “promot[ed] efficiency and economy in procurement.”
In Kentucky v. Biden, the Sixth Circuit unanimously declined “the government’s invitation to construe [the FPASA] as authorizing the President to ignore the limits inherent in the [FPASA’s] operative provisions in favor of an ‘anything goes’ pursuit of a broad statutory purpose.” Put quite succinctly, “[t]he government’s statutory arithmetic starts with a fundamental error: It searches for power in a powerless provision.” Quite cleverly, this circuit flips the analysis of the FPASA on its head. It looked to other courts’ interpretations of “legal texts” in the past, specifically citing the Supreme Court’s decision in Sturgeon v. Frost. In Sturgeon, the Alaska National Interest Lands Conservation Act (ANILCA) was at issue. ANILCA simultaneously governed “federally owned land in Alaska for preservation purposes” while aiming to satisfy the “economic and social needs” of Alaskan citizens. The Supreme Court rejected the assertion that ANILCA’s “general statement of purpose” could give it power that its “operative provisions did not confer.” This reasoning is applied equally to the analysis of the FPASA and its lack of power within the substantive provisions.
The decision of the Eleventh Circuit in Georgia v. President of the United States “poses substantial questions about the ability of the executive branch to regulate federal contractors.” The Eleventh Circuit’s injunction is distinct from the Fifth’s and the Sixth’s in that its narrow scope covers only “any plaintiff State or member of Associated Builders and Contractors.” Nonetheless, it “upheld the core finding that plaintiffs will likely succeed on their argument that the vaccine mandate is unlawful.” The bulk of the Eleventh Circuit’s analysis is centered around the proper interpretation of the FPASA and its legislative history. The analysis clearly indicates that the FPASA “gives the President the authority to direct subordinate executive actors as they carry out its specific provisions.” In other words, “[a] presidential directive can stand only if those subordinate officials have the statutory authority that they are told to exercise.” Therein lies the problem: “no statutory provision contemplates the power to implement an across-the-board vaccination mandate.”
As aforementioned, President Biden’s Executive Order conflicts with the Tenth Amendment. This constitutional provision was violated since the Executive Order was motivated by public health policies. The majority from the Fifth Circuit expressed that although the Executive Order was “supported upon a nexus of economy and efficiency,” the “safety and the health of the people” are entrusted to the “politically accountable officials of the states.” Hence, President Biden’s mandate infringes upon the Tenth Amendments’ allocation of such power to each individual state. Although the majority identified this constitutional limitation on the President’s Executive Order, the FPASA remained the driving factor of their decision.
In Mayes v. Biden, the Ninth Circuit interprets the FPASA to grant the President “the necessary flexibility and broad-ranging authority to ensure economy and efficiency in federal procurement and contracting.” Thus, a question arises: what is the necessary degree of connection between the mandate and “economy” and “efficiency” for the President’s act to fall within the allotted FPASA powers? The Ninth Circuit stresses that the statutory terms “economy” and “efficiency” should be interpreted broadly. They also declare that “[i]t is axiomatic that federal contracts will be performed more economically and efficiently with fewer absences.” This approach fails to recognize that the primary goal of the FPASA is to “implement systems making the government’s entry into contracts less duplicative and inefficient.”
According to Judge Mark J. Bennett of the Ninth Circuit, “President Biden was justified in concluding that requiring federal contractors who worked on or in connection with federal government projects to be vaccinated against COVID-19 would promote economy and efficiency in federal contracting.” However, case law from other circuits demonstrates that the President, even under the FPASA, does not have unlimited authority to make decisions that he believes will likely result in savings, or “efficiency,” to the government.
The Ninth Circuit disagrees with the Fifth, Sixth, and Eleventh Circuits, implying in the decision’s dicta that those other circuits are adjudicating based on “slippery-slope hypotheticals.” However, the Ninth Circuit’s view has some support, as demonstrated by previous executive orders. For example, President Obama issued Executive Order 13706, seeking to “increase efficiency and cost savings in the work performed by parties that contract with the Federal Government by ensuring that employees on those contracts can earn up to 7 days or more of paid sick leave annually.” The argument that the vaccine mandate is synonymous with health, wellness, and efficiency certainly exists. That is true, but it is not the debate at hand since the Ninth Circuit fails to consider the fact-specific limiting principles in the FPASA.
The COVID-19 vaccine mandate aside, government contractors and their contracts are already treated differently than private contracting parties and contracts. First, “statutes, regulations, and policies . . . encourage competition to the maximum extent practicable, ensure proper spending of taxpayer money, and advance socioeconomic goals.” Second, “mandatory clauses” within government contracts “afford the [g]overnment special contractual rights,” giving the government the “right to unilaterally change contract terms and conditions or terminate the contract.” Third, the government is a sovereign entity. Because of this, any claims and litigation must follow the procedures of the Contract Disputes Act (CDA), codified at 41 U.S.C. § 7102. The CDA is a “comprehensive system for resolving disputes between a contractor and a procuring agency,” applying to “nearly all contracts . . . with the government, express or implied, executed on or after March 1, 1979.” The aim of a distinct litigation process for the federal government is to create “uniform procedures for negotiating and litigating, . . . ensuring fairness and predictability.”
A myriad of regulations protect government contractors and are reasonable in their scope and logically protect the well-being of government contractors. For instance, the Walsh-Healey Public Contracts Act establishes a minimum wage and maximum hours, safety, and health standards for government contracts more than $10,000. Similarly, per the Davis-Bacon Act, for any government contracts over $2,000 that are for “the construction, alteration, or repair of public buildings or public works,” employees must be paid “the locally prevailing wages and fringe benefits.” These broad-sweeping mandates have consequences for contractors who cannot or will not comply. Such was the case after another Executive Order issued by President Trump in 2020, which sought to “promote economy and efficiency in [f]ederal contracting, to promote unity . . . and to combat offensive and anti-American race and sex stereotyping and scapegoating.” If contractors were not compliant, they could be “canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further government contracts.”
Other regulations are more established. For instance, to ensure a competitive economic system for government contracting, the Sherman Antitrust Act does not allow contracting competitors to fix prices or wages, rig bids, or allocate customers. Likewise, there are special protections for small businesses in the government contracting arena. The Small Business Association (SBA) within the Office of Government Contracting incentivizes “maximum participation by small, disadvantaged, and woman-owned businesses in federal government contract awards.” In particular, the SBA mandates are in place to create a “level playing field.” These mandates aim to protect the government and competing government contractors. More importantly, they aid in an efficient government procurement system. Such examples of federal procurement regulations are starkly different than the aims of the COVID-19 vaccine mandate, the latter of which did not seek to place government contract employees on the same playing field as federal employees or private parties.
Moreover, regulations such as the Foreign Corrupt Practices Act (FCPA) and U.S. export controls govern and regulate procurement with foreign actors. In furtherance of this oversight, regulations exist as to the narrow instances when government property may be used for work for other foreign governments. The FCPA “creates a substantial risk for U.S. [g]overnment contractors that want to maintain or grow their business with certain foreign governments.” From a national-security perspective, the United States government typically remains leery of entering into contracts with companies “that pose a threat.” This is illustrative of one of many regulations government contractors, as opposed to normal contracting parties, must comply with.
The COVID-19 vaccine mandate could prevent otherwise qualified contractors from participating in procurement, as illustrated by case law and regulations. Companies may face barriers to entry when trying to win contracts. Prequalification comes in different forms but can only be used “when necessary to ensure timely and efficient performance of critical construction projects.” Prequalification and barriers to entry alike prevent full and open competition since they limit offerors to those “determined to be qualified.” One mechanism for prequalification—“master agreements”—has been deemed a “derogation of principal tenet of competitive system that bids or proposals are to be solicited to permit the maximum amount of competition.”
The vaccine mandate, when considered in conjunction with other necessary components of a competitive bidding process, could potentially be fatal to the business’s award of the contract. When a bidding business must first comply with a vaccine mandate and potentially submit proof of compliance, it could create bias and tarnish the government’s process of fairly awarding the bid. The vaccine has become a political divide, effectively crystallizing stereotypes about those who resist versus those who comply. As such, there may be biases during the procurement process against contractors who have resisted the mandate. Going beyond the effect on the business itself, consideration of a vaccine mandate, in addition to other essential price and non-price related factors, might deviate from the full and open competition process.
Currently, guidance for the FPASA’s application in the future is unclear. Therefore, Congress should take an assertive stand on the FPASA and its appropriate role in the future. For instance, the U.S. Senate plays a pivotal role in the National Defense Authorization Act (NDAA) and its implications for government contracting. In Fiscal Year 2023, § 821 dramatically changed government contracting practices by mandating that the “insertion of any clause implementing the requirements of an executive order into a DoD contract ‘shall be treated as a change.’” This congressional mandate effectively allowed contractors to “recover the costs of implementing the new requirements.” If Congress similarly took a stance on executive orders under the FPASA and their implications for government contractors, less uncertainty would exist, providing a clear line application of its grant of authority.
Due to the breadth of backlash in response to the COVID-19 vaccine mandate, contractors and trade associations will likely be encouraged to “challenge new requirements imposed as a result of new executive orders in the future.” It is logical to predict that “federal courts will more closely scrutinize Presidents’ use of executive orders to impose new requirements on federal contractors.”
Even outside the realm of federal contractors, the continual issuance of executive orders raises a separation of powers issue. When a President can set their agenda via “unilateral action,” Congress and its constitutional powers are bypassed. As such, sweeping changes to federal contracting should not be implemented via executive orders but rather via congressional authorization. The President should not be able to conform an existing statute, like the FPASA, to their political agenda through an executive order. Often, presidents justify their executive orders with “very general” statutes that “implicate relatively ambiguous legislative provisions.” This Note argues that, concerningly, such manipulation of statutes through an executive order potentially leads to the president legislating.
If the FPASA’s application is not clarified, the President should rely on a different statutory delegation of power, such as the Defense Production Act (DPA). The DPA authorizes the President to prioritize contracts “relating to national defense” and to allocate “materials and facilities . . . [for] national defense purposes” if necessary. Mandates in the future, particularly during a time of defense turmoil, may require a certain level of expertise for contractors producing a complex weapon. If such a mandate is deemed essential for government contracting, the DPA might be better suited to serve as the source of authority.
It is likely that another pandemic will arise in the future, making the FPASA’s interpretation an even more timely and appropriate concern. Alarmingly, a myriad of new viruses have recently begun to surface around the globe—even some from global warming. If these viruses eventually reach the United States and are deemed a pandemic, it is imperative that the President’s authority, specifically under the FPASA, is solidified and clear.
The government has suggested that there must be a “sufficiently close nexus” between the executive order and the “economy” and “efficiency” of government contracting. Under the “close nexus” test suggested by the government, future health mandates could spiral into mandating federal contractors to certify their employees comply with “daily vitamin” requirements, “exercise three times a week,” or “live in smoke-free homes.” While that reasoning is slightly outlandish, it nonetheless gets to the point that the FPASA should be applied narrowly to not force government contractors into monitoring their employees’ health actions to such a strict degree.
On March 13, 2020, President Trump declared a national emergency concerning the COVID-19 pandemic via Proclamation 9,994. President Biden continued the national emergency in accordance with the NEA, codified at 50 U.S.C. § 1622(d), which relies on emergency authorities provided in other statutes. The NEA is invoked in a wide variety of contexts via presidential executive orders, including those titled: Movement of Russian-Affiliated Vessels to United States Ports, Bolstering Efforts to Bring Hostages and Wrongfully Detained United States Nationals Home, and Imposing Sanctions on Foreign Persons Involved in the Global Illicit Drug Trade.
The NEA authority is different from that of the FPASA, since it is not limited only to efficiency in government contracting. Under the NEA, once the President declares a national emergency, then the President must specify which emergency provisions are being activated and notify Congress immediately. In the COVID-19 pandemic context, once the national emergency was declared pursuant to the NEA, President Trump “invoked several NEA standby authorities.” To name a few, these authorities included those that allowed the following:
As indicated by these four powers invoked under the NEA, which grants the Secretaries of HHS, DHS, DoD, and Treasury the power to take otherwise reserved actions, the NEA within itself is not a vehicle for presidential action. Instead, Congress authorizes the powers of other agencies. This possibility starkly contrasts the FPASA, which gives the President the authority to act in the best interest of government contracting. Since this Note scrutinizes the power granted to the President under the FPASA, it is suggested that Congress adopt the verbiage of the NEA. The mere declaration of a national emergency alone does not constitute authority under the FPASA to issue broad-sweeping, unrelated mandates. The FPASA should be more like the NEA in nature, thereby giving the President limited authority and instead conferring action upon other agencies once Congress has given its stamp of approval.
President Biden’s mandate required COVID-19 vaccinations of staff within “all Medicare and Medicaid-certified facilities,” which receive federal funding. However, workplaces that receive federal funding differ from government contractors since the latter deliberately elects to be part of the government procurement world. Government contract employees do not receive the same benefits as federal employees—such as health insurance, paid time-off, and retirement packages. Government contract employees are separate entities from the government. Absent these benefits and cohesiveness, they should not have to comply with the same mandates as federal employees or employees of workplaces that receive federal funding.
Lawsuits and pushback have also emerged on a state-to-state basis in response to the mandates for workplaces receiving federal funding. For example, in 2022, New Jersey Governor Phil Murphy issued a COVID-19 vaccine mandate for federally funded healthcare facilities. Plaintiff nurses filed suit, arguing that the Executive Orders were not rationally related to the State’s interest. On November 13, 2023, the Supreme Court “declined without comment” to hear this case’s appeal.
For small government contractors, the COVID-19 vaccine mandate does the opposite of promoting “economy” and “efficiency.” A multitude of increased costs and burdens are associated with complying with unduly harsh executive orders, regardless of their subject matter. For example, the DoD, GSA, and NASA proposed a 2022 rule to require “government contractors to publicly disclose greenhouse gas (GHG) emissions and climate-related financial risk and set science-based reduction targets.” Contractors who do not comply “could be presumed non-responsible and thus ineligible to receive federal awards.”
When future health mandates are issued, it is important to consider the effects on government contractors, particularly those with international employees. For instance, the total funding obligated for the Boeing Company (Boeing) in 2024 is $3,935,770,724.68. Boeing has approximately “145,000 employees across the United States and in more than 65 countries.” Massive conglomerates with whom the government contracts, like Boeing, face significant internal regulatory turmoil to ensure all their employees across the globe comply with such mandates issued by the President of the United States. If similar health mandates are issued in the future, they should be narrower in scope and specify the range of applicability. This Note proposes that they should only apply to contractor employees who must report directly to a work site.
The President’s power under the FPASA does not allow broad-sweeping executive orders that instruct government contractor employees, who are wholly distinct from government employees, to be vaccinated. Looking forward, Congress should pass legislation or adequately amend the FPASA to provide clear guidance on the FPASA’s grant of authority. If Congress fails to act, the President should look to a different source of authority for executive orders in times of crisis, such as the DPA.
