Court filing
Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 009 Att 12
Filed November 4, 2021 in Federal Contractor Mandates; one of 57 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the Eighth Circuit |
|---|---|
| Filed | 2021-11-04 |
U.S. Court of Appeals for the Eighth Circuit · No. 4:21-cv-01300-DDN · Doc. 9-12 · 2021-11-04 · Docket on CourtListener
Full text
EXHIBIT L Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 1 of 21 PageID #: 366 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 2 of 21 PageID #: 367 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 3 of 21 PageID #: 368 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 4 of 21 PageID #: 369 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 5 of 21 PageID #: 370 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 6 of 21 PageID #: 371 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 7 of 21 PageID #: 372 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 8 of 21 PageID #: 373 EXHIBIT 1 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 9 of 21 PageID #: 374 1 From: Sent: Thursday, November 4, 2021 9:33 AM To: Subject: FW: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 - COVID FAR Clause From: Koerner, Martin E. (WFF‐210I) Sent: Tuesday, October 26, 2021 12:44 PM To: Tapiana Wray Cc: Feimster, Lashawn K. (GSFC‐210I) Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Taps, Thanks for the response and I can appreciate that this situation might arise. However, we have been instructed not to include or modify language in the mods. NASA is using the authority of the changes clause to incorporate the EO to preserve the rights of the contractors. Furthermore, release language has not been incorporated into the mod, nor any reference to the change being incorporated at no cost. We have been instructed by NASA HQs to incorporate the modification as is, due to the need to have a standard application across all NASA contracts. We acknowledge that you are reserving your right to seek an equitable adjustment at a later time if there is an impact that can be quantified, which the Changes Clause does allow. Please let me know if you have any other questions. Thank You Martin E. Koerner, II Contract Specialist, Code 210: I NASA, Goddard Space Flight Center Wallops Flight Facility, Code 210: W Wallops Island, VA 23337 Phone: From: Tapiana Wray Sent: Tuesday, October 26, 2021 2:22 PM To: Koerner, Martin E. (WFF‐210I) Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Martin, This is still with General Counsel. Is there a possibility to add language that limits this to those that work physically at the range or narrow it in some form? As you can imagine this is creating some concerns about breadth of impact and those implications. Many thanks, Taps Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 10 of 21 PageID #: 375 Exhibit 1 Page 1 of 6 2 ============================================== Tapiana Wray MBA, MEd, HRM, CPRA Acting Executive Director Principal Grant & Contract Management Officer Office of Grants & Contracts Administration University of Alaska Fairbanks PO Box 757880 | Fairbanks, AK 99775‐7880 Phone | Office: Website: http://www.uaf.edu/ogca/ The University of Alaska Fairbanks is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual. Learn more about UA's notice of nondiscrimination. =============================================== From: Koerner, Martin E. (WFF‐210I) Sent: Tuesday, October 26, 2021 10:58 AM To: Tapiana Wray Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton ; Melissa Campbell ; Wayne Mowery Jr Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Tapiana, I wanted to kindly follow up with the status of this request. Please provide an update by no later than COB tomorrow as this was required to be implemented by October 15, 2021. Thank You Martin E. Koerner, II Contract Specialist, Code 210: I NASA, Goddard Space Flight Center Wallops Flight Facility, Code 210: W Wallops Island, VA 23337 Phone: From: Tapiana Wray Sent: Thursday, October 21, 2021 1:02 PM To: Koerner, Martin E. (WFF‐210I) Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton ; Melissa Campbell ; Wayne Mowery Jr Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Martin, Sounds good. Thank you. Many thanks, Taps Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 11 of 21 PageID #: 376 Exhibit 1 Page 2 of 6 3 ============================================== Tapiana Wray MBA, MEd, HRM, CPRA Acting Executive Director Principal Grant & Contract Management Officer Office of Grants & Contracts Administration University of Alaska Fairbanks PO Box 757880 | Fairbanks, AK 99775‐7880 Phone | Office: | Website: http://www.uaf.edu/ogca/ The University of Alaska Fairbanks is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual. Learn more about UA's notice of nondiscrimination. =============================================== From: Koerner, Martin E. (WFF‐210I) Sent: Thursday, October 21, 2021 9:57 AM To: Tapiana Wray Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton ; Melissa Campbell ; Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Tapiana, Please advise the University legal counsel to submit questions in writing to the CO, LaShawn Feimster and copy myself. We will work with NASA legal counsel to address the questions. Thank You Martin E. Koerner, II Contract Specialist, Code 210: I NASA, Goddard Space Flight Center Wallops Flight Facility, Code 210: W Wallops Island, VA 23337 Phone: From: Tapiana Wray Sent: Tuesday, October 19, 2021 9:01 PM To: Koerner, Martin E. (WFF‐210I) Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton ; Melissa Campbell ; Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Hi Martin, Thank you for following up. The request for bilateral modification of existing Contract # 80GSFC20C0023 as authorized by agreement of the parties has been forwarded to University legal for review of the proposed additional terms. The University will follow up with NASA once it has completed its internal review of this request. Would you be able to provide contact information for NASA legal counsel handling such requests in case University legal counsel has additional questions or comments on the proposed bilateral modification. Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 12 of 21 PageID #: 377 Exhibit 1 Page 3 of 6 4 Many thanks, Taps ============================================== Tapiana Wray MBA, MEd, HRM, CPRA Acting Executive Director Principal Grant & Contract Management Officer Office of Grants & Contracts Administration University of Alaska Fairbanks PO Box 757880 | Fairbanks, AK 99775‐7880 Phone | Office: | Website: http://www.uaf.edu/ogca/ The University of Alaska Fairbanks is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual. Learn more about UA's notice of nondiscrimination. =============================================== From: Koerner, Martin E. (WFF‐210I) Sent: Monday, October 18, 2021 12:24 PM To: Rosemary Madnick ; Tapiana Wray ; Melissa Campbell Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton Subject: RE: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Good Afternoon, Please provide the status of the signed modification the Government is requesting. Thank You, Martin Martin E. Koerner, II Contract Specialist, Code 210: I NASA, Goddard Space Flight Center Wallops Flight Facility, Code 210: W Wallops Island, VA 23337 Phone: From: Rosemary Madnick Sent: Tuesday, October 12, 2021 3:50 PM To: Koerner, Martin E. (WFF‐210I) ; Tapiana Wray ; Melissa Campbell Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich ; Teri Langton Subject: [EXTERNAL] RESPONSE: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Thank you Martin, we have noted receipt of the email. Stay well, Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 13 of 21 PageID #: 378 Exhibit 1 Page 4 of 6 5 Rosie Rosemary Madnick Executive Director Office of Grants and Contracts Administration University of Alaska Fairbanks West Ridge Research Building (WRRB) 2145 North Tanana Loop, WRRB 008 P.O. Box 757880 Fairbanks, Alaska 99775-7880 Phone: www. http://uaf.edu/ogca/ President, National Council of University Research Administrators (NCURA) Washington, DC My last day with the University of Alaska Fairbanks is Friday, October 15, 2021. If there is anything you need prior to my departure, notify me immediately so I may address. This email will not be valid for any correspondence related to the Office of Grants and Contracts Administration (OGCA) after my departure. Please contact any of the following individuals for assistance on OGCA matters: OGCA Management Team: Acting Executive Director and Principal Grants and Contracts Management Officer (Pre-Award) Taps Wray - Principal Grants and Contracts Management Officer (Post-Award) Samantha Aleshire - OGCA General Information: It was a pleasure to work with everyone during my time at the University. OGCA values your opinion! Please take our short survey and tell us how we're doing! Client Satisfaction Survey The University of Alaska Fairbanks is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual. Learn more about UA's notice of nondiscrimination. From: Koerner, Martin E. (WFF‐210I) Sent: Thursday, October 7, 2021 1:00 PM To: Tapiana Wray ; Melissa Campbell ; Rosemary Madnick Cc: Feimster, Lashawn K. (GSFC‐210I) ; Marsh, Gordon D. (WFF‐8100) ; Kathe Rich Subject: PFRR Contract #80GSFC20C0023 Mod #11 ‐ COVID FAR Clause Importance: High Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 14 of 21 PageID #: 379 Exhibit 1 Page 5 of 6 6 Good Afternoon, Please find attached for your signature Modification #11 which implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021. I have been tasked with inserting this clause into the contract via bilateral modification by October 15, 2021. Please review and let me know immediately if you have any questions or require anything further in order to execute this modification. Your prompt attention in this matter is greatly appreciated. Thank You Martin E. Koerner, II Contract Specialist, Code 210: I NASA, Goddard Space Flight Center Wallops Flight Facility, Code 210: W Wallops Island, VA 23337 Phone: Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 15 of 21 PageID #: 380 Exhibit 1 Page 6 of 6 EXHIBIT 2 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 16 of 21 PageID #: 381 1 From: Boorstein, Douglas J CIV WHS AD (USA) Sent: Thursday, October 28, 2021 12:12 PM To: Cc: 'Tapiana Wray'; 'Keith Dunkle'; 'Matthew Mohler'; 'Matthew Cooper' Subject: RE: [Non-DoD Source] RE: HQ0034-18-D-0027 P00003 - Adding Covid-19 Deviation Good afternoon, Thanks for your note. My responses are interspersed below, in orange. As a side note, while I do not work for WHS‐AD as an attorney, I am a licensed attorney, and also attended Dickinson School of Law. ‐‐ Douglas J. Boorstein Contracting Officer and Team Lead Research, Logistics, and Analysis Branch (RLAB) Enterprise Acquisition and Sustainment Division (EASD) Washington Headquarters Services ‐ Acquisition Directorate 4800 Mark Center Drive, Suite 09F09 Alexandria, VA 22350 Phone: Government iPhone: ( Email: From: Sent: Tuesday, October 26, 2021 7:49 PM To: Boorstein, Douglas J CIV WHS AD (USA) Cc: 'Tapiana Wray' ; 'Keith Dunkle' ; 'Matthew Mohler' ; 'Matthew Cooper' Subject: FW: [Non‐DoD Source] RE: HQ0034‐18‐D‐0027 P00003 ‐ Adding Covid‐19 Deviation All active links contained in this email were disabled. Please verify the identity of the sender, and confirm the authenticity of all links contained within the message prior to copying and pasting the address to a Web browser. Mr. Boorstein: Your bilateral modification request has been forwarded to the Office of General Counsel at the University of Alaska for review. As we consider the impact of your proposed modifications to the performance obligations of UA under the contract in question, we have a couple questions which we would like clarified. If you could please provide feedback on the following questions, it would assist our office in reviewing the terms of the proposed modification and to consider the impacts from accepting these new terms. 1. Will DOD consider requests for edits to the proposed modification language and terms to clarify the extent of coverage and scope of terms such as “covered contractor employee” or “covered contractor workplaces” as currently outlined in the Safer Federal Workforce Task Force? If so, we would be happy to draft and circulate revised proposed terms to start negotiations on such proposed edits. Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 17 of 21 PageID #: 382 2 This guidance is issued outside of the Department of Defense, under the authority of the Director of the Office of Management and Budget. As such, I do not have authority to negotiate the extent of coverage nor changes to the definitions. If the language is changed by the Office of Management and Budget, we would incorporate those changes (or, if the changes were at the discretion of the agency concerned, be at least willing to negotiate those changes with the University of Alaska). 2. Will DOD consider edits to extend the implementation timelines set forth in the Safer Federal Workforce Task Force Guidance, given the extremely tight timelines provided? Again, this guidance is issued outside of the Department of Defense, by the Director of the Office of Management and Budget. As such, I do not have authority to negotiate changes to the timelines. 3. Will DOD be providing applicable equitable adjustments per Federal Acquisition Regulation guidance for out‐of‐ scope contract performance changes that result from this modification to the terms of the contract in question, including potential adjustments in both costs and performance schedules as appropriate? On a case by case basis, the Department of Defense will consider a request for equitable adjustment. The University of Alaska would need to justify its request. I appreciate your response and look forward to working with you through this bilateral modification process. I am willing to have a teleconference with you to discuss this, but, as discussed above, I have very limited authority to negotiate changes to the guidance. Sincerely, Wayne ======================================================================== This electronic transmission contains confidential information belonging to the University of Alaska Office of the General Counsel. If you are not the intended recipient or an authorized agent or employee of the intended recipient, please read no further and follow the instructions at the end of this message. ======================================================================== Wayne L. Mowery, Jr. Associate General Counsel Email: < > Phone: ======================================================================== This is an attorney‐client privileged communication. If this transmission has reached you in error, any review, examination, use, disclosure, reproduction or distribution of this transmission or the information contained herein is prohibited. Please immediately notify the sender by telephone at and delete this message. Thank you. Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 18 of 21 PageID #: 383 3 From: Boorstein, Douglas J CIV WHS AD (USA) > Sent: Thursday, October 21, 2021 10:39 AM To: Tapiana Wray Cc: LP Persia OLeary ; Keith Dunkle >; Maren Savage >; Matthew Mohler >; Subject: RE: [Non‐DoD Source] RE: HQ0034‐18‐D‐0027 P00003 ‐ Adding Covid‐19 Deviation Good afternoon, I’ve revised this in accordance with your request. Please advise if acceptable, and, if it is, sign and return this document. Thanks. ‐‐ Douglas J. Boorstein Contracting Officer and Team Lead Research, Logistics, and Analysis Branch (RLAB) Enterprise Acquisition and Sustainment Division (EASD) Washington Headquarters Services ‐ Acquisition Directorate 4800 Mark Center Drive, Suite 09F09 Alexandria, VA 22350 Government iPhone: Email: < Caution‐mailto > From: Tapiana Wray Sent: Tuesday, October 19, 2021 8:54 PM To: Boorstein, Douglas J CIV WHS AD (USA) Cc: LP Persia OLeary Keith Dunkle Maren Savage ; Matthew Mohler ; Subject: [Non‐DoD Source] RE: HQ0034‐18‐D‐0027 P00003 ‐ Adding Covid‐19 Deviation All active links contained in this email were disabled. Please verify the identity of the sender, and confirm the authenticity of all links contained within the message prior to copying and pasting the address to a Web browser. Good Afternoon Douglas, Thank you for the modification. As our General Counsel has reviewed this there is a question about the language that is used for this supplement. The question is the use of FAR 52.253‐2 Alt V falls under unilateral change requests within the scope of the contract. EO 14042 should be a bilateral modification by agreement of both parties. We request the change to Section 13 – check Box D and insert Bilateral Modification by agreement of the parties. Please let me know if this change is agreeable. Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 19 of 21 PageID #: 384 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 20 of 21 PageID #: 385 Case: 4:21-cv-01300-DDN Doc. #: 9-12 Filed: 11/04/21 Page: 21 of 21 PageID #: 386
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