Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 022 Att 0

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Defendants' Notice to Clarify filed November 20, 2021 in State of Florida v. Bill Nelson, Administrator of NASA, et al., No. 8:21-cv-02524-SDM-TGW, in the U.S. District Court for the Middle District of Florida, as Document 22. U.S. Department of Justice counsel clarify their brief opposing Florida's motion for preliminary injunction over Executive Order 14042, which requires COVID-19 safety protocols in certain new and extended federal contracts. The notice states that agencies may have independent authority to modify existing contracts unilaterally, and that an earlier statement limiting this to mutual agreement was overly broad. It says NASA has not sought unilateral modification, while the Department of Energy directed contracting officers to use existing authority. Defendants state the clarification does not alter their standing and irreparable harm arguments.

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Case 8:21-cv-02524-SDM-TGW Document 22 Filed 11/20/21 Page 1 of 5 PageID 289




                    IN THE UNITED STATES DISTRICT COURT
                    FOR THE MIDDLE DISTRICT OF FLORIDA

 STATE OF FLORIDA,
                      Plaintiff,
               v.
                                                   No. 8:21-cv-2524-SDM-TGW
 BILL NELSON, in his official capacity
 as Administrator of NASA et al.,
                      Defendants.

                      DEFENDANTS’ NOTICE TO CLARIFY

      Defendants respectfully submit this Notice to clarify an aspect of their br ief in

opposition to Florida’s motion for preliminary injunction, based on additional infor-

mation that counsel for defendants have come to understand since that brief was filed.

      As Defendants correctly noted in their opposition brief, for the categories of

contracts to which it applies, Executive Order 14042 requires agencies to include a

clause requiring certain COVID-19 safety protocols—including vaccination require-

ments—in “any new contract,” “new solicitation for a contract,” “extension or re-

newal of an existing contract,” and “exercise of an option on an existing contract.”

ECF No. 21 at 1 (quoting Executive Order 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021)

[hereinafter EO]). The EO does not require that those safety protocols be added to

existing contracts or contracts that are not included in the identified categories. At the

same time, the EO “strongly encourage[s]” agencies, “to the extent permitted by law,”

to ensure that all existing contracts and contract-like instruments also include such
Case 8:21-cv-02524-SDM-TGW Document 22 Filed 11/20/21 Page 2 of 5 PageID 290




protocols. Id. at 5 (quoting EO § 6(c)). As our opposition brief discussed, modifica-

tions to existing contracts can be made by mutual agreement of the contracting parties.

See, e.g., id. at 32 (noting that modification of existing contracts could occur thro ugh

“bilateral modification”).

       Defendants would like to clarify that agencies may also have independent con-

tractual authority to unilaterally modify existing contracts. Such authority could in-

clude the ability to incorporate COVID safety protocols into existing contracts and

contracts outside of the categories identified in the EO (including contracts below the

Simplified Acquisition Threshold). Thus, Defendants’ prior statement that “the Task

Force Guidance can only be implemented in preexisting contracts through mutual

agreement” was overly broad. Id. at 10. The NASA contract on which Florida relies,

for example, allows the United States to adopt certain types of modifications unilater-

ally. Therefore, while NASA has not sought to unilaterally add the COVID safety

protocols to its contracts and has said it does not plan to do so, see Declaration of Karla

Smith Jackson ¶ 6 (attached to Defendants’ PI Opposition as Ex. 2)1, it may nonethe-

less possess the authority to unilaterally include the COVID safety protocols in its con-

tracts. The Department of Energy, by contrast, has exercised its discretion to pursue




       1
         As described in the Jackson declaration, NASA has identified nine existing
contracts it has with governmental entities in the State of Florida. Jackson Decl. ¶ 5.
For all of those contracts, NASA has requested a bilateral modification to incorporate
the COVID safety protocols. Id. ¶ 7. The other party agreed to the bilateral
modification for two of those contracts, but so far has declined for the others. Id.

                                            2
Case 8:21-cv-02524-SDM-TGW Document 22 Filed 11/20/21 Page 3 of 5 PageID 291




amendments to include the COVID-19 safety clause requirements in its existing con-

tracts pursuant to pre-existing, mutually agreed-upon contract terms that allow DOE

to unilaterally modify certain requirements. To that end, DOE issued an agency-wide

order instructing Contracting Officers to use their authority to m odify contracts where

they already have the authority to do so. See DOE Order, available at

https://perma.cc/3LWH-CTTW. Florida, however, has not alleged any injury relat-

ing to contracts with DOE.

        This clarification does not alter Defendants’ standing and irreparable harm ar-

guments. Precisely because different contracts, issued by different agencies, contain

different terms regarding when those contracts may be modified—and because differ-

ent agencies may exercise their authorities under these agreed-upon contractual provi-

sions differently—it is crucial that Plaintiffs identify the specific agency action and

contracts allegedly injuring them and define precisely what they ask this Court to en-

join.


DATED: November 20, 2021                Respectfully submitted,

                                        BRIAN M. BOYNTON
                                        Acting Assistant Attorney General

                                        BRAD P. ROSENBERG
                                        Assistant Director

                                        /s/ Kevin Wynosky
                                        ZACHARY A. AVALLONE
                                        LEE REEVES
                                        KEVIN WYNOSKY (PA Bar No. 326087)
                                        Trial Attorneys
                                        U.S. Department of Justice

                                           3
Case 8:21-cv-02524-SDM-TGW Document 22 Filed 11/20/21 Page 4 of 5 PageID 292




                                   Civil Division, Federal Programs Branch
                                   1100 L Street NW, Room 12400
                                   Washington, D.C. 20005
                                   (202) 616-8267
                                   Kevin.J.Wynosky@usdoj.gov

                                   Counsel for Defendants




                                     4
Case 8:21-cv-02524-SDM-TGW Document 22 Filed 11/20/21 Page 5 of 5 PageID 293




                            CERTIFICATE OF SERVICE

       On November 20, 2021, I electronically submitted the foregoing document with

the clerk of court for the U.S. District Court, Middle District of Florida, using the

electronic case filing system of the Court. I hereby certify that I have served all parties

electronically or by another manner authorized by Federal Rule of Civil Procedure

5(b)(2).

                                          /s/ Kevin Wynosky
                                          KEVIN WYNOSKY
                                          Trial Attorney
                                          U.S. Department of Justice


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