Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 101 Att 0

Record facts

United States District Court, For The Southern District Of Georgia, Augusta Division · No. 1:21-cv-00163-RSB-BKE · Doc. 101 · 2021-12-14 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA 
AUGUSTA DIVISION 
 
THE STATE OF GEORGIA, et al., 
 
) 
 
 
 
 
 
 
 
) 
 
 
Plaintiffs, 
 
 
 
) 
 
 
 
 
 
 
 
) 
and   
 
 
 
 
 
) 
 
 
 
 
 
 
 
)  
ASSOCIATED BUILDERS AND 
 
) 
CONTRACTORS, INC.,  
 
 
) 
 
 
 
 
 
 
 
)  
Case 1:21-cv-00163-RSB-BKE 
 
 
Plaintiff-Intervenor, 
 
) 
 
 
 
 
 
 
 
) 
v.  
 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
JOSEPH R. BIDEN in his official capacity  ) 
as President of the United States;  
 
) 
et al., 
 
 
 
 
 
) 
 
 
 
 
 
 
 
) 
 
 
Defendants.  
 
 
) 
 
 
 
 
 
 
 
) 
 
 
PLAINTIFF-INTERVENOR’S  
COMPLAINT FOR DECLARATORY AND 
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF 
 
1. 
“The Occupational Safety and Health Administration (OSHA) 
“reasonably determined” in June 2020 that an emergency temporary standard (ETS) 
was “not necessary” to “protect working people from occupational exposure to 
infectious disease, including COVID-19.” In re AFL-CIO, 2020 U.S. App. LEXIS 
18562, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020).” BST Holdings, L.L.C. v. 
OSHA, 2021 U.S. App. LEXIS 33698, *4-5. 
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2. 
“After the President voiced his displeasure with the country’s 
vaccination rate in September, the Administration pored over the U.S. Code in search 
of authority, or a “work-around,” for imposing a national vaccine mandate.” Id at * 12 
-13 (cleaned up). 
3. 
One of the “work-arounds” is an executive order that required federal 
departments and agencies to mandate all of their federal contractors to fully 
vaccinate their workforce. Without any direct legislation from Congress to impose a 
mandatory COVID 19 vaccine, the President turned to the Federal Property and 
Administrative Services Act (the “Procurement Act”) as a basis to impose a 
mandatory vaccine on as many individuals by issuance of the Executive Order 14042. 
4. 
For construction companies that work on federal contracts, this 
situation is untenable. This mandate puts billions of contracting dollars in peril. 
During the period of fiscal years 2009 – 2020, direct federal U.S. construction 
contracts exceeding $25 million totaled approximately $118 billion. (Declaration of 
Bill Anderson Para. 8; Doc. 49-01.) The number and amount of such contracts is 
continuing in nature and is expected to expand in the coming fiscal year due to recent 
enactment of the Infrastructure Bill. (Id. at Para. 9.) Absent judicial relief, all of the 
new contracts, and many existing contracts, will imminently be required to include 
FAR Clauses implementing the vaccination mandate for federal contractors and their 
subcontractors at every tier.  
5. 
At its core, the mandate forces federal contractors to make an impossible 
choice: either (1) take enforcement action that may include termination or resignation 
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of a substantial percentage of unvaccinated employees, and extremely burdensome 
compliance costs; or (2) collectively face losing billions of dollars in federal contracting 
opportunities, or else risk being found to be in breach or default of contractual 
obligations.  
6. 
Plaintiff-Intervenor, Associated Builders and Contractors, Inc. (“ABC”) 
has intervened in this action to stop this unprecedented and unconstitutional use of 
power by the federal government, and to end the nationwide confusion and disruption 
that the mandate will cause if it is allowed to take effect. 
PARTIES 
7. 
Plaintiff State of Georgia is a sovereign state with many agencies that 
are federal contractors. 
8. 
Plaintiff State of Alabama is a sovereign state with many agencies that 
are federal contractors. 
9. 
Plaintiff State of Idaho is a sovereign state with many agencies that are 
federal contractors. 
10. 
Plaintiff State of Kansas is a sovereign state with many agencies that 
are federal contractors. 
11. 
Plaintiff State of South Carolina is a sovereign state with many agencies 
that are federal contractors. 
12. 
Plaintiff State of Utah is a sovereign state with many agencies that are 
federal contractors. 
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13. 
Plaintiff State of West Virginia is a sovereign state with many agencies 
that are federal contractors. 
14. 
Plaintiff Brian P. Kemp is named in his official capacity as Governor of 
the State of Georgia and appears on behalf of the State of Georgia. 
15. 
Plaintiff Kay Ivey is named in her official capacity as Governor of the 
State of Alabama and appears on behalf of the State of Alabama. 
16. 
Plaintiff Brad Little, in his official capacity as Governor of the State of 
Idaho, has an interest in preventing the loss of federal funding that will result as a 
direct consequence of the Contractor Mandate. Additionally, the Governor has an 
interest in ensuring that all State laws, including the Idaho Constitution and Idaho 
Statutes, are executed, rather than subverted through federal overreach. 
17. 
Plaintiff Henry McMaster is named in his official capacity as Governor 
of the State of South Carolina and appears on behalf of the State of South Carolina. 
18. 
Plaintiff Board of Regents of the University System of Georgia was 
established in 1931 as a part of a reorganization of Georgia’s state government. The 
Georgia Constitution grants to the Board of Regents the exclusive right to govern, 
control, and manage the University System of Georgia, an educational system 
comprised of twenty-six institutions of higher learning including universities with 
extensive research institutions such as Augusta University, the Georgia Institute of 
Technology, Georgia State University, and the University of Georgia. 
19. 
Plaintiff Gary W. Black is named in his official capacity as 
Commissioner of the Georgia Department of Agriculture. 
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20. 
Plaintiff Alabama Department of Agriculture and Industries is a state 
agency responsible for serving farmers and consumers of agricultural projects. 
21. 
Plaintiff Alabama Department of Rehabilitation Services is the state 
agency primarily responsible for serving Alabamians with disabilities. 
22. 
Plaintiff Alabama Department of Public Health is the state agency 
primarily responsible for serving Alabamians’ public health needs. 
23. 
Plaintiff Idaho State Board of Education appears in its capacity as 
Regents of the University of Idaho, Board of Trustees of Boise State University, Board 
of Trustees of Idaho State University, and Board of Trustees of Lewis-Clark State 
College. 
24. 
Plaintiff-Intervenor Associated Builders and Contractors, Inc. (“ABC”), 
is a nationwide construction industry trade association representing more than 
21,000 members performing work throughout the United States, many of whom 
regularly perform federal contracts covered by the new mandate. ABC’s membership 
represents most specialties within the construction industry and is comprised 
primarily of firms that perform work in the industrial and commercial sectors. ABC 
as a whole represents many private businesses that regularly bid on and are awarded 
federal government contracts of the type covered by the unprecedented vaccination 
mandates imposed by Executive Order 14042, as implemented by the Safer Federal 
Workforce Task Force Guidance, the Office of Management and Budget, and the 
Federal Acquisition Regulatory Council, all of which are being challenged in the 
above-captioned litigation. (Dec. Anderson Paras. 2 – 4; Doc. 49-01.) 
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25. 
ABC has standing to pursue this action on behalf of its federal contractor 
members under the three-part test of Hunt v. Washington State Apple Advertising 
Commission, 432 U.S. 333, 343 (1977), because (1) ABC’s federal contractor members 
would otherwise have standing to sue in their own right as they are directly and 
irreparably injured in their ability to be awarded and perform federal contracts by 
the challenged mandate Anderson Dec. Doc. 49-01; see also Graugnard Dec. Doc. 78-
1 and McKelvey Dec. Doc. 78-2, representative of the direct and irreparable harms 
which many more ABC members throughout the country will suffer if the Federal 
Contractor Mandate is allowed to take effect; (2) the interests at stake in this case 
are germane to ABC’s organizational purposes which include the support of fair and 
open competition in the construction industry, which is plainly injured by the 
challenged mandate; and (3) neither the claims asserted nor the relief requested 
requires the participation of ABC’s federal contractor members.  
26. 
ABC members won 57% of the $118 billion in direct federal U.S. 
construction contracts exceeding $25 million awarded during fiscal years 2009 – 2020. 
It is undisputed that innumerable government construction contracts of the same or 
similar nature have been or are imminently about to be solicited and awarded with 
the new Mandate imposed via the FAR clauses at issue in this case. If ABC’s member 
contractors are forced to comply with the challenged mandate in order to be awarded 
such covered federal contracts, many of them will be unable to perform the awarded 
contracts because a significant percentage of their vaccine-resistant workers will quit 
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or have to be terminated or placed on extended leaves of absence rather than be 
vaccinated.  
27. 
According to published reports, there is already a shortage of 430,000 
construction workers needed to fulfill existing demands for construction in the U.S. 
The shortage is expected to grow larger as a result of the recently passed 
Infrastructure Bill. If even a small percentage of the existing construction workforce 
ceases employment due to the vaccine mandate, exacerbating the existing shortage, 
then the much-needed construction projects of the federal government will be greatly 
impaired in their performance due to the greatly reduced number of fully staffed 
contractors and subcontractors able to compete for and perform such projects.  
28. 
It is also well known that construction industry workforces are uniquely 
transitory and temporary, compared to other industries. Anderson Dec. No. 49-1. Any 
vaccine-resistant worker who wants to avoid vaccination as a condition of 
employment by a government contractor, can readily obtain employment with a 
contractor who does not perform government contracts, and/or is not covered by the 
OSHA ETS mandate or test policy, particularly during the current labor shortage.  
29. 
OMB speculates that the number of workers who will quit rather than 
become vaccinated will be less than predicted, based on isolated experiences of 
businesses in industries other than construction, and ignoring public reports of large 
numbers of employees who have already resigned or been terminated from 
employment in both the private and public sector. But ABC’s members have no need 
to speculate. Many of them have been informed by significant percentages of their 
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employees in no uncertain terms that the employees will resign or be terminated 
rather than be vaccinated. Graugnard Dec. at 6, Doc. 78-1; McKelvey Dec. at 5, Doc. 
78-2; See also Anderson Dec. 49-1. The Mandate will also impose unrecoverable 
compliance costs ABC member contractors relating to recordkeeping, tracking, 
testing, and accommodation requirements. 
30. 
For each of these reasons, the challenged federal contractor mandate 
will cause irreparable harm to ABC’s members and will increase costs and undermine 
economy and efficiency in federal contracting. An August 2021 ABC survey of its 
federal contractor members found that 77 of survey respondents said vaccine 
mandates will increase costs on federal construction projects. Just 1.2% of 
respondents said vaccine mandates will decrease costs. In addition, the survey results 
indicated that a vaccine mandate on federal contractor employees would decrease 
competition for government contracts, with 49% of survey participants saying they 
would be less likely to bid on federal contracts subjected to vaccine requirements.  
31. 
Defendant Joseph R. Biden is the 46th President of the United States 
who, on September 9, 2021, signed Executive Order 14042, titled Executive Order on 
Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO 14042”). 
32. 
Defendant Safer Federal Workforce Task Force (the “Task Force”) was 
established pursuant to President Biden’s Executive Order 13991 (86 Fed. Reg. 7045 
(Jan. 25, 2021)). 
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33. 
Director of the Office of Personnel Management (“OPM”); (2) the 
Administrator of the General Services Administration (“GSA”); and (3) the COVID–
19 Response Coordinator. The Director of OPM is also a member of the Task Force. 
34. 
Defendant Office of Personnel Management Director, Kiran Ahuja 
(“Director Ahuja”), is a co-chair and member of the Task Force and represents the 
federal agency responsible for managing human resources for civil service of the 
federal government. 
35. 
Defendant Administrator of General Services, Robin Carnahan (the 
“GSA Administrator”), is a co-chair and member of the Task Force and represents the 
federal agency responsible for managing and supporting the basic functioning of 
federal agencies. 
36. 
Defendant COVID–19 Response Coordinator, Jeffrey Zients (the 
“COVID-19 Response Coordinator”), is a co-chair and member of the Task Force. 
37. 
Defendant Office of Management and Budget Director, Shalanda Young 
(the “OMB Director”), is a member of the Task Force and represents the federal 
agency with delegated authority, by President Biden, to publish determinations 
relevant to EO 14042 and the Task Force Guidance to the Federal Register. 
38. 
Defendant Director of the Federal Protective Service, L. Eric Patterson 
(the “FPS Director”), is a member of the Task Force. 
39. 
Defendant Director of the United States Secret Service, James M. 
Murray (the “Secret Service Director”), is a member of the Task Force. 
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40. 
Defendant Director of the Federal Emergency Management Agency, 
Deanne Criswell (the “FEMA Director”), is a member of the Task Force. 
41. 
Defendant Director of the Center for Disease Control, Rochelle 
Walensky (the “CDC Director”), is a member of the Task Force. 
42. 
Defendant Office of Management and Budget (“OMB”) is an agency of 
the United States government. 
43. 
Defendant Office of Personnel Management (“OPM”) is an agency of the 
United States government. 
44. 
Defendant United States Department of Health and Human Services 
(“DHHS”) is an agency of the United States government. 
45. 
Defendant General Services Administration (“GSA”) is an agency of the 
United States government, located within DHHS. 
46. 
Defendant United States Department of Defense (“DOD”) is an agency 
of the United States government. 
47. 
Defendant United States Secretary of Defense, Lloyd Austin, is named 
in his official capacity as the United States Secretary of Defense. 
48. 
Defendant United States Department of Health and Human Services 
(“DHHS”) is an agency of the United States government. 
49. 
Defendant United States Secretary of Health and Human Services, 
Xavier Becerra, is named in his official capacity as the United States Secretary of 
Health and Human Services. 
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50. 
Defendant National Institutes of Health (“NIH”) is an agency of the 
United States government, located within DHHS. 
51. 
Defendant NIH Director, Francis S. Collins, is named in his official 
capacity as the Director of the NIH. 
52. 
Defendant United States Department of Veterans Affairs (“DVA”) is an 
agency of the United States government. 
53. 
Defendant United States Secretary of Veterans Affairs, Denis 
McDonough, is named in his official capacity as the United States Secretary of 
Veterans Affairs. 
54. 
Defendant National Science Foundation (“NSF”) is an agency of the 
United States government. 
55. 
Defendant Director of the NSF, Sethuraman Panchanathan, is named 
in his official capacity as the Director of the NSF. 
56. 
Defendant United States Department of Commerce (“DOC”) is an 
agency of the United States government. 
57. 
Defendant United States Secretary of Commerce, Gina Raimondo, is 
named in her official capacity as the United States Secretary of Commerce. 
58. 
Defendant National Aeronautics and Space Administration (“NASA”) is 
an agency of the United States government. 
59. 
Defendant Administrator of the NASA, Bill Nelson, is named in his 
official capacity as the Director of the NASA. 
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60. 
Defendant United States Department of Transportation (“DOT”) is an 
agency of the United States government. 
61. 
Defendant Director of the DOT, Richard Chávez, is named in his official 
capacity as the Director of the DOT. 
62. 
Defendant United States Department of Energy (“DOE”) is an agency of 
the United States government. 
63. 
Defendant United States Secretary of Energy, Jennifer Granholm, is 
named in her official capacity as the United States Secretary of Energy. 
STATEMENT OF JURISDICTION AND VENUE 
64. 
This Court has exclusive jurisdiction over this case under 28 U.S.C. 
§§ 1331 
and 
1346 
because 
Plaintiff-Intervenor’s 
claims 
arise 
under 
the 
Administrative Procedure Act, 5 U.S.C. §§ 702–703, and the UNITED STATES 
CONSTITUTION, U.S. CONST. Art. III, § 2. 
65. 
This Court is authorized to grant the requested declaratory and 
injunctive relief under 5 U.S.C. §§ 702 and 706, and 28 U.S.C. §§ 2201–02. 
66. 
Venue is proper within this District pursuant to 28 U.S.C. § 1391(e)(1) 
because (1) Defendants are Officers, Employees and Agencies of the United States, 
see California v. Azar, 911 F.3d 558, 570 (9th Cir. 2018), and (2) “a substantial part 
of the events or omissions giving rise to the claim occurred” in this District. 
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FACTUAL ALLEGATIONS 
Executive Order 14042 and the  
Safer Federal Workforce Task Force Guidelines 
67. 
On September 9, 2021, President Biden signed Executive Order 14042, 
titled Executive Order on Ensuring Adequate COVID Safety Protocols for Federal 
Contractors (“EO 14042”), a true and accurate copy is found at Doc. 1-1, (Exhibit A). 
68. 
EO 14042 purports to “promote economy and efficiency in Federal 
procurement by ensuring that the parties that contract with the Federal Government 
provides adequate COVID-19 safeguards to their workers performing on or in 
connection with a Federal Government contract or contract-like instrument.” Doc. 1-
1 at 1. 
69. 
EO 14042 claims that “ensuring that Federal contractors and 
subcontractors are adequately protected from COVID-19 will bolster economy and 
efficiency in Federal procurement.” Doc. 1-1 at 1. 
70. 
EO 14042 directs executive agencies subject to the Federal Property and 
Administrative Services Act (the “Procurement Act”) to include in all federal 
contracts and “contract-like instruments” a clause that contractors and 
subcontractors will comply with all future guidance issued by the Task Force. 
71. 
EO 14042 requires that the Task Force issue specific COVID safety 
protocols by September 24, 2021. 
72. 
On September 24, 2021, the Task Force released its COVID-19 
Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Task 
Force Guidance”) to federal agencies, imposing a vaccine mandate on federal 
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contractors and subcontractors, a true and accurate copy is found at Doc. 1-2, 
(Exhibit B). 
73. 
The September 24, 2021 Task Force Guidance, was amended on 
November 10, 2021 (Nov. Task Force Guidance). Doc. 54-3 (Exhibit C). 
74. 
EO 14042 further required that the Director of OMB publish a 
determination in the Federal Register as to “whether such Guidance will promote 
economy and efficiency in Federal contracting if adhered to by Government 
contractors and subcontractors.” Doc. 1-1 at 2. 
75. 
On September 28, 2021, Director Young published the OMB’s 
Determination of the Promotion of Economy and Efficiency in Federal Contracting 
Pursuant to Executive Order No. 14042 (the “September OMB Determination”) 
stating in conclusory fashion “I have determined that compliance by Federal 
contractors and subcontractors with the COVID-19-workplace safety protocols 
detailed in that guidance will improve economy and efficiency by reducing 
absenteeism and decreasing labor costs for contractors and subcontractors working 
on or in connection with a Federal Government contract.” 86 Fed. Reg. 53,691 (Sept. 
28, 2021), a true and correct copy is found at Doc. 1-3, (Exhibit C). 
76. 
The September OMB Determination contained no research or data in 
support of its claims. Moreover, the September OMB Determination underwent no 
notice-and-comment period. 
77. 
A second OMB Determination was issued on November 16, 2021, 86 Fed. 
Reg. 63,418 (Nov. 16, 2021) (Nov. OMB Determination) (Doc. 54-5, Exhibit E). The 
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Nov. OMB Determination purports to be effective immediately and provides a thirty-
day notice and comment period. The OMB Director purported to make the Nov. OMB 
Determination effective immediately based on a waiver of the ordinary sixty-day 
notice and comment period. 
78. 
Through EO 14042 and without legislative intervention, the President 
purported to give the Task Force, the OMB Director, and various federal agencies 
broad authority to impose vaccine mandates on federal contractors. 
79. 
While EO 14042 did not specifically call for a vaccine mandate, it did 
purport to delegate rulemaking authority to the Task Force, OMB, and the Federal 
Acquisition and Regulatory Council (the “FAR Council”). 
80. 
On September 30, 2021, the FAR Council issued Class Deviation Clause 
252.223-7999 (the “FAR Deviation Clause”) with accompanying guidance, a true and 
correct copy is found at Doc. 1-4, (Exhibit D). 
81. 
The FAR Deviation Clause requires federal contractors to follow the 
Task Force Guidance and any future amendments to the Guidance.  
82. 
EO 14042, the Task Force Guidances, the FAR Deviation Clause, and 
the OMB Determinations are hereinafter collectively referred to as the “Contractor 
Mandate.” 
83. 
Ultimately, prior to implementing the FAD Deviation Clause, the Task 
Force Guidance was never published to the Federal Register for the purpose of 
receiving public comment. 
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84. 
Pursuant to the Task Force Guidance, “[p]eople are considered fully 
vaccinated for COVID-19 two weeks after they have received the second dose in a 
two-dose series, or two weeks after they have received a single-dose vaccine.” Doc. 1-
2 at 4.  
85. 
The Guidance further establishes that “covered contractor employees” 
are to be “fully vaccinated” by December 8, 2021—meaning said employees must 
obtain the final dose of their vaccine of choice no later than November 24, 2021. The 
Nov. Task Force Guidance changed that deadline to January 18, 2022, which moved 
the last date to obtain the final dose to December 2, 2021. 
86. 
Accordingly, any covered contractor employee inclined to take the 
Moderna vaccine would have had to receive their first dose by December 7, 2021, in 
order to comply with the January 18, 2022, deadline.1 Defendants notified the Court 
that it was extending the deadline to January 18, 2022. Doc. 39 at 3.  
87. 
Covered contractor employees must obtain a Pfizer vaccine by December 
14, 20212 or a Johnson and Johnson vaccine by January 4, 2022.3 With the new 
deadline, the last date that an employee can take Pfizer or Moderna is January 4, 
2022. 
88. 
Pursuant to the Task Force Guidances, “covered contractor employees” 
refer to “any full-time or part-time employee of a covered contractor working on or in 
 
1 Center for Disease Control, Different COVID-19 Vaccines, (Oct. 20, 2020), 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines.html. 
2 Id. 
3 Id.  
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connection with a covered contract or working at a covered contractor workplace. This 
includes employees of covered contractors who are not themselves working on or in 
connection with a covered contract.” Doc. 1-1 at 3–4. 
89. 
For the same reason, the Guidances also specify that subcontractors 
working in a covered workplace must also be fully vaccinated. Doc. 1-2 at 1. 
90. 
Pursuant to the Task Force Guidances, a contractor or subcontractor 
workplace location “means a location where covered contract employees work, 
including a covered contractor workplace or Federal workplace.” Doc. 1-2 at 3. 
91. 
Pursuant to the Task Force Guidances, “unless a covered contractor can 
affirmatively determine that none of its employees on another floor or in separate 
areas of the building will come into contact with a covered contractor employee during 
the period of performance,” employees in other areas of the building site or facility 
are also a part of the covered contractor workplace. 
92. 
Accordingly, the Contractor Mandate mandates vaccination for those 
who work both directly and indirectly with federal contracts. 
93. 
For example, pursuant to the Task Force Guidances, if a covered 
contractor employee is working on a contract for the Department of Defense in a 
remote office facility and that person merely shares a parking garage with non- 
contracted employees once a week, those non-contracted employees are subject to the 
Contractor Mandate. 
94. 
In another example, pursuant to the Task Force Guidances, if a covered 
contractor employee is working on a contract for NASA in a remote office facility and 
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that person merely shares an elevator with non-contracted employees every other 
Friday, those non-contracted employees are subject to the Contractor Mandate. 
95. 
The Task Force Guidance imposed a deadline of October 15, 2021, for 
federal agencies to include a vaccination mandate clause in new contracts. 
96. 
EO 14042, in general terms, and the Task Force Guidances, in specific 
terms, further required that the Federal Acquisition Regulatory Council (“FAR 
Council”) “conduct a rulemaking to amend the [Federal Acquisition Regulation 
(“FAR”)] to include the [Contractor Mandate].” Doc. 1-2 at 12. 
97. 
Pursuant to the Task Force Guidance, by October 8, 2021, and prior to 
any rulemaking, the FAR Council was required to develop a recommended contract 
clause to impose the Contractor Mandate for federal agencies to include in their 
subsequent contracts. Doc. 1-2 at 12. 
98. 
The Task Force Guidance instructed the FAR Council to “recommend 
that agencies exercise their authority to deviate from the FAR” by using a vaccination 
mandate clause in contracts prior to the FAR Council actually amending the FAR. 
Doc. 1-2 at 12. 
Development and Implementation of the FAR Deviation Clause 
99. 
Before the FAR Deviation Clause was even published on September 30, 
2021, the Defense Acquisition Regulations System and the Department of Defense 
published their intent to comply with EO 14042 via a Notice to the Federal Register 
on September 17, 2021 (the “DOD Notice”). A true and correct copy of the DOD Notice 
is found at Doc. 1-5, (Exhibit E). 
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100. 
In response, there were seventeen letter comments from members of the 
public, raising hundreds of key concerns that have yet to be addressed by OMB or the 
Task Force. 
101. 
A few of the DOD Notice comments included concerns such as: 
a. 
“Are contractors or the government [sic] be liable for employee 
disability or damage claims (side effects, etc.)?”4 
b. 
“How will DOD monitor and measure any productivity 
disruptions?”5 
c. 
“Are contractors expected to violate or undermine collective 
bargaining agreements as they comply with these requirements?”6 
d. 
“Implementing a flow down vaccine mandate and/or testing will 
likely cause our subcontractors to experience significant employee attrition and 
financial hardship, potentially leaving them unable to fulfill their role in the 
distribution network.”7 
 
4 Aerospace Industries Association (AIA), Comment Letter on DOD Implementation 
Planning for Executive Order 14042 (Sept. 23, 2021), 
https://www.acq.osd.mil/dpap/dars/docs/early_engagement_opportunity/executive_or
der_14042/ AIA%20Comments%20-%20EO%2040142%20DARS%20EEO.9-23-
21.pdf. 
5 Id. 
6 Id. 
7 AmerisourceBergen, Comment Letter on DOD Implementation Planning for 
Executive Order 14042 (Sept. 23, 2021), 
https://www.acq.osd.mil/dpap/dars/docs/early_engagement_opportunity/executive_or
der_14042/Amerisource%20Bergen%20Comments%20to%20DOD%20Early%20Eng
agement%20Opportu nity%20Ensuring%20Adequate%20COVID%20Safety% 
20Protocols%20for%20Federal%20Con tractors%20EO%2014042%20final.pdf. 
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102. 
The DOD Notice comments were never considered prior to issuing the 
Task Force Guidance. Indeed, the DOD ultimately published the DOD FAR Deviation 
Memo just one day after the FAR Deviation Clause, with no alterations. 
103. 
Upon information and belief, even some federal agencies were unable to 
implement the Task Force Guidance due to the quick turnaround time of just 21 days 
from the date the Guidance was issued to the October 15, 2021, deadline. 
Many Employees Are Likely to Quit Rather Than  
Submit to Mandatory Vaccination 
104. 
In addition to the declarations already cited above by Messrs. Anderson, 
Graugnard, and McKelvey, a considerable body of published data supports the 
likelihood of imminent disruption of many federal contractor workforces if the 
Mandate is allowed to take effect. For this reason, 9 in 10 employers fear significant 
reductions in their workforce if they had to implement vaccine mandates.8 
105. 
In a recent survey, approximately 70% of unvaccinated workers said 
they would leave their job before complying with an employer-issued vaccine 
mandate.9 
106. 
“Just under one in five U.S. adults, 18%, can be described as vaccine- 
resistant. These Americans say they would not agree to be vaccinated if a COVID- 19 
 
8 Karl Evers-Hillstrom, 9 in 10 Employers Say They Fear They’ll Lose Unvaccinated 
Workers Over Mandate: Survey, The Hill (Oct. 18, 2021), 
https://thehill.com/business-a-lobbying/business-a-lobbying/577201-9-in-10- 
employers-say-they-will-lose-unvaccinated; Declaration of Milton Graugnard, Doc. 
78-01; Declaration of James Lynn McKelvey, Doc. 78-02. 
9 Liz Hamel et al., Kaiser Family Found., KFF COVID-19 Vaccine Monitor: October 
2021(Oct. 28, 2021), https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid- 
19-vaccine-monitor-october-2021/. 
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vaccine were available to them right now at no cost and that they are unlikely to 
change their mind about it. The percentage holding these views has been stable in 
recent months.”10  
107. 
Moreover, “covered contractor employees,” specifically include other 
employees that come into minimal contact directly with contractor employees “unless 
a covered contractor can affirmatively determine that none of its employees on 
another floor or in separate areas of the building will come into contact with a covered 
contractor employee during the period of performance of a covered contract.” Doc. 1-
2 at 10. 
108. 
The “covered contractor workplace” broadly includes “a location 
controlled by a covered contractor at which any employee of a covered contractor 
working on or in connection with a covered contract is likely to be present during the 
period of performance for a covered contract.” Doc. 1-2 at 4. 
109. 
While a “covered contractor workplace” does not include a covered 
contractor employee’s residence, covered contractors working exclusively from their 
residence are required to be vaccinated. Doc. 1-2 at 11, Q11.  
110. 
Ultimately, the Contractor Mandate extends to all employees that share 
“common areas such as lobbies, security clearance areas, elevators, stairwells, 
meeting rooms, kitchens, dining areas, and parking garages.” Doc. 1-2 at 10. 
 
10 Jeffrey M. Jones, About One in Five Americans Remain Vaccine Resistant, Gallup 
(Aug. 6, 2021), https://news.gallup.com/poll/353081/one-five-americans-remain-
vaccine-resistant.aspx (last visited Oct. 26, 2021). 
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Impact of the Contractor Mandate on ABC and Its Members 
111. 
Associated Builders and Contractors, Inc. (“ABC”) is a national 
construction industry trade association, representing more than 21,000 member 
contractors and related firms all over the country.  
112. 
ABC as a whole represent many private businesses that regularly bid 
on and are awarded federal government contracts of the type covered by the 
unprecedented vaccination mandates imposed by Executive Order 14042, as 
implemented by the Safer Federal Workforce Task Force Guidance, the Office of 
Management and Budget, and the Federal Acquisition Regulatory Council.  
113. 
ABC as a whole strongly supports and encourages vaccination of 
construction workers, and many ABC member companies have made significant 
efforts through outreach and incentives to get as many workers as possible 
vaccinated.  
114. 
But a sizable percentage of construction workers, as with the population 
as a whole, resist compulsory vaccination and have indicated they will quit their 
employment rather than submit to mandatory vaccination. See Dec. Graugnard Para. 
6; Dec. McKelvey Para. 5. 
115. 
If contractors are forced to comply with the challenged mandate in order 
to be awarded covered federal contracts, many of them will be unable to perform the 
awarded contracts because a significant percentage of their vaccine-resistant workers 
will quit or have to be placed on extended leaves of absence rather than be vaccinated. 
See Dec. Graugnard Para. 7; Dec. McKelvey Para. 6. 
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116. 
As noted above, there is already a significant shortage of construction 
workers needed to fulfill existing demands for construction in the U.S, and the 
shortage is expected to grow larger as a result of the recently passed Infrastructure 
Bill.  
117. 
Because of the transitory and temporary nature of the construction 
industry workforce, any vaccine-resistant worker who wants to avoid vaccination as 
a condition of employment by a government contractor, can readily obtain 
employment by a contractor who does not perform government contracts, and/or is 
not covered by the OSHA ETS mandate or test policy, particularly during the current 
labor shortage. 
118. 
In addition, the administrative requirements of the Vaccine Mandate 
exceed the administrative capacities of many large and small employers. See Dec. 
Graugnard Para. 9; Dec. McKelvey Para. 7. 
119. 
 A review of the General Services Administration’s Website for federal 
contracts sam.gov demonstrates that numerous contracts are being solicited. ABC 
Exhibit 4 reflects a search of the website for federal construction solicitations and 
pre-solicitations for the period of November 14, 2021 through November 30, 2021 and 
reflects 85 solicitations and pre-solicitations for just that short period, all of which 
contain the unlawful FAR Clauses purporting to impose the Mandate. It is 
undisputed that the number of such contracts will inevitably proliferate in the coming 
months, absent judicial relief, directly injuring ABC’s member federal contractors 
and undermining the economy and efficiency of government contracting.  
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The Contractor Mandate 
Creates Confusion and Uncertainty 
120. 
In response to the Contractor Mandate, ABC member companies have 
scrambled to comply. 
121. 
In addition to their specific challenges, ABC member companies will 
have to overcome the following hurdles in order to comply: 
a. 
Track employee vaccination statuses; 
b. 
Develop a robust process to review requests for accommodation; 
c. 
Identify impacted employees and locations; 
d. 
Spend an undetermined amount of money to fund its compliance 
program; and 
e. 
Track data from subcontractors to ensure they are likewise performing 
(a), (b), (c), and (d) above. 
122. 
Upon information and belief, many covered contractor employees will 
not obtain the vaccine and will not seek an exemption, despite the Contractor 
Mandate and its allowance for narrowly prescribed exemptions for medical reasons 
or strongly held religious beliefs. 
123. 
For additional context, nearly 50% of Georgians are fully vaccinated 
while the remaining 50% have yet to obtain one or oppose the vaccine altogether.11 
 
11 Georgia Department of Public Health, Press Release, 50% of Georgians Fully 
Vaccinated Against COVID-19 (Oct. 25, 2021), https://dph.georgia.gov/press- 
releases/2021-10-25/50-georgians-fully-vaccinated-against-covid-19. 
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Similar data from around the country establishes that millions of employees have 
continued to resist vaccination. 
124. 
With respect to such employees who refuse vaccination, ABC member 
companies in Georgia and throughout the country will have no choice but to consider 
enforcement action up to and including potential termination, and/or suffer 
significant numbers of resignations or burdensome demands for exemption from the 
Mandate, as a condition of bidding on and performing numerous contracts that are 
being solicited and awarded now and in the coming months. With national labor 
shortages crippling the current labor market, losing employees because of the 
Contractor Mandate will cause significant harm to ABC member companies. 
125. 
Equally important, the loss of employees will jeopardize ABC member 
companies’ ability to complete the contracted for work in the contracted for time, 
thereby materially undermining the very efficiency and economy in contracting that 
purportedly is the core rationale for implementing the Contractor Mandate in the 
first place. 
126. 
The broad application of the Contractor Mandate is expected to 
substantially impact each Plaintiff-Intervenor’s affected member companies in that 
any of their unvaccinated employees must be terminated or reallocated to uncovered 
workplaces lest they risk breaching their federal contracts by failing to fully comply 
with the Contractor Mandate. 
127. 
The Contractor Mandate, therefore, forces ABC affected member 
companies to choose between two equally problematic outcomes: (1) maintain a fully 
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vaccinated (but reduced) workforce of covered employees by firing or suffering the 
resignation of those who are unvaccinated and risk breaching the contracts by not 
satisfactorily performing due to lack of qualified workers; or (2) breach the contract 
by continuing to employ unvaccinated, covered employees so that they can timely 
perform and complete the contract requirements. Either way, Plaintiff-Intervenor’s 
affected member companies face a risk of breach and material noncompliance for 
reasons totally beyond their control. 
COUNT I 
Violation of the Procurement Act 
(Under 40 U.S.C. §§ 101 and 121) 
128. 
ABC incorporates each of the Complaint allegations stated above herein. 
129. 
The purpose of the Procurement Act is to provide the Federal 
Government with an “economical and efficient system” for, among other things, 
procuring and supplying property and nonpersonal services. 40 U.S.C. § 101. The 
Contractor Mandate, however, will actually and materially undermine the efficient 
and economical delivery of property and services by disrupting the continuity of the 
contractor workforce. 
130. 
The purpose of the Procurement Act is not to impose a sweeping 
vaccination mandate on broad swaths of the American people or to use the federal 
procurement system as a proxy for implementing a nationwide public health 
mandate. 
131. 
The Procurement Act empowers the President to “prescribe policies and 
directives that [he] considers necessary to carry out [the Procurement Act.]” 40 U.S.C. 
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§ 121(a). Those policies “must be consistent with” the Procurement Act’s purpose, i.e., 
promoting economy and efficiency in federal contracting. Id. § 121(a). 
132. 
Defendants have failed to demonstrate a “nexus” between the 
Contractor Mandate (EO 14042, the OMB Determination, the Task Force Guidance, 
and the FAR Deviation Clause) and the Procurement Act’s purpose of promoting an 
“economical and efficient system” for federal contracting. 40 U.S.C. § 101; see Am. 
Fed’n of Lab. & Cong. of Indus. Organizations v. Kahn, 618 F.2d 784, 793 (D.C. Cir. 
1979) (explaining that the Procurement Act is violated when the President does not 
demonstrate a “nexus” between executive action and the Procurement Act’s policy). 
The Procurement Act’s text obligates the President to exercise his statutory authority 
“consistently with [the Act’s] structure and purposes.” Id. 
133. 
Instead, EO 14042 exceeds the President’s Procurement Act authority 
by directing the Task Force, without a demonstrable nexus to the Procurement Act’s 
purpose, to prescribe a sweeping public health scheme. 
134. 
Here, the text of the Procurement Act clearly demonstrates that 
Congress has not authorized the Contractor Mandate, and thus, EO 14042 violates 
the Procurement Act. 
135. 
Further, before the executive branch may regulate a major policy 
question of “great and economic and political significance”—such as mandating 
vaccination for every employee of every federal contractor in the country—Congress 
must “speak clearly” to assign the authority to implement such a policy. Ala. Ass’n of 
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Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (citing Util. 
Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014)). 
136. 
When the federal government intrudes on a traditional state function, 
it must clearly articulate the scope of the intrusion and the rationale behind its 
unprecedented action, which it has not done here. Gregory v. Ashcroft, 501 U.S. 452, 
463–64 (1991). 
137. 
The Contractor Mandate implicates critical issues of federalism as 
public health, and the regulation of inoculation regimes are traditional state 
functions. 
138. 
Because the statutory language that the President relies on to issue EO 
14042 does not contain a clear statement affirmatively sanctioning the broad scope 
of the Contractor Mandate, EO 14042 violates the Procurement Act. 
139. 
Therefore, under both the plain text of the Procurement Act and the 
clear statement principle, EO 14042 is unlawful, and thus the Contractor Mandate is 
unenforceable. 
COUNT II 
Violation of Federal Procurement Policy  
(Under 41 U.S.C. § 1707(a)) 
140. 
ABC incorporates each of the Complaint allegations stated above herein. 
141. 
Pursuant to 41 U.S.C. § 1707(a)(1), a procurement policy may not take 
effect until 60 days after it is published for public comment in the Federal Register if 
it relates to the expenditure of appropriated funds; and has a significant effect beyond 
the internal operating procedures of the issuing agency; or has a significant cost or 
administrative impact on contractors or offerors. 
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142. 
The Contractor Mandate will require contractors to develop, implement, 
and monitor a host of new policies and procedures impacting, for some contractors, 
their entire workforce. In order to fully comply with the Contractor Mandate, 
contractors will have to fire any covered employee who refuses to be vaccinated and 
has not asserted an exemption. 
143. 
Federal agencies will have to budget for and expend appropriated funds 
to administratively implement the Contractor Mandate and, thereafter, compensate 
contractors for their increased cost of compliance in violation of § 1707(a). 
144. 
Because the Contractor Mandate requires vaccination of hundreds of 
thousands of Americans, it certainly has “a significant effect beyond internal 
operating procedures” in violation of § 1707(a). 
145. 
The Contractor Mandate also has a significant cost or administrative 
impact on current contractors, future contractors, and offerors in violation of 
§ 1707(a). 
146. 
Despite being required to be published for public comment in the 
Federal Register, Defendants failed to publish the Task Force Guidance containing 
the Contractor Mandate in the Federal Register as required by 41 U.S.C. § 1707(a)(1). 
147. 
Moreover, Defendants failed to provide the required 60-day comment 
period before the Task Force Guidance and Contractor Mandate became effective. 
148. 
Further, the requirements of 41 U.S.C. § 1707(a) were never waived 
with regard to the Task Force Guidance and Contractor Mandate. 
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149. 
Accordingly, Defendants failed to comply with 41 U.S.C. § 1707(a) when 
issuing the OMB Determination and the Task Force Guidance, making the 
Contractor Mandate invalid as a matter of law. 
COUNT III 
Nondelegation Claim 
(Article I, Section 1 of The UNITED STATES CONSTITUTION) 
150. 
ABC incorporates each of the Complaint allegations stated above herein. 
151. 
Pursuant to Article I, Section 1 of the UNITED STATES CONSTITUTION, 
Congress is vested with all legislative powers. 
152. 
“Congress is not permitted to abdicate or to transfer to others the 
essential legislative functions with which it is thus vested.” A.L.A. Schechter Poultry 
Corp. v. United States, 295 U.S. 495, 529–30 (1935). 
153. 
The executive branch can only exercise its own discrete powers reserved 
by Article II of the UNITED STATES CONSTITUTION and such power that Congress 
clearly authorizes through statutory command. 
154. 
Congress gives such authorization when it articulates an intelligible 
principle to guide the Executive that not only sanctions but also defines and cabins 
the delegated legislative power. 
155. 
Under the nondelegation doctrine, Congress cannot simply offer a 
general policy that is untethered to a delegation of legislative power. For a delegation 
to be proper, Congress must articulate a clear principle or directive of its 
congressional will within the legislative act. See J.W. Hampton, Jr., & Co. v. United 
States, 276 U.S. 394, 409 (1928). The principle must be binding, and the delegate 
must be “directed to conform” to it. Id. 
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156. 
The nondelegation doctrine preserves and protects important tenets of 
our democracy, including individual liberties and states’ rights. 
157. 
The President’s direct delegation of authority to the OMB Director and 
the Task Force gives them unconstitutional and unconstrained rulemaking authority 
without a statutory directive. 
158. 
Separately, the President’s indirect delegation to the federal agencies of 
broad authority and discretion to enforce the already unconstitutional Contractor 
Mandate is unsupported by an explicit statutory directive within the Procurement 
Act or any other federal law. 
159. 
Thus, the President’s actions lack the requisite congressional direction 
in two regards: 
a. 
First, Congress did not articulate clear or sufficient instructions in the 
Procurement Act directing the President to implement this public health 
policy scheme by executive order. 
b. 
Second, even if Congress did clearly authorize a national vaccination 
schedule for federal contractors, it did not give sufficiently clear 
instructions to permit the President to delegate legislative judgment to 
the Task Force or the OMB Director. 
160. 
EO 14042’s reliance on the precatory statement of purpose in the 
Procurement Act is not a clear directive, and neither the President nor the federal 
agencies can rely on it to impose an intrusive and sweeping vaccine mandate. 
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161. 
Further, any delegation sanctioning broad and intrusive executive 
action cannot be sustained without clear and meaningful legislative guidance, 
especially given the important separation-of-powers and federalism concerns 
implicated. Under the nondelegation doctrine, the Contractor Mandate is 
unconstitutional because Congress did not articulate a clear principle by legislative 
act that directs the Executive to take sweeping action that infringes on state and 
individual rights. 
162. 
Here, the Executive Order cuts deeply into the state’s sphere of power 
without articulating the underlying reasons or providing a justification beyond a 
superficial, unsupported, and pretextual reference to efficiency and economy in 
federal contracts. 
163. 
Without explicit congressional authorization, the President’s delegation 
of power in EO 14042 through the OMB Determination, the Task Force, and the 
various executive agencies acting to implement the Contractor Mandate cannot 
survive constitutional scrutiny. 
COUNT IV 
Violation of Separation of Powers and Federalism 
(Article I, Section 8 of Amendment X to The UNITED STATES CONSTITUTION) 
164. 
ABC incorporates each of the Complaint allegations stated above herein. 
165. 
To the extent Defendants argue that the Contractor Mandate is 
authorized, such authorization would violate the CONSTITUTION’S nondelegation 
principles. 
166. 
The Contractor Mandate exceeds congressional authority. 
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167. 
Pursuant to Article I, Section 1 of the UNITED STATES CONSTITUTION, 
Congress is vested with all legislative powers, but Congress must act pursuant to the 
enumerated powers granted to it by Article I. 
168. 
Pursuant to Article I, Section 8 of the UNITED STATES CONSTITUTION, 
Congress has authority “to make all Laws which shall be necessary and proper for 
carrying into Execution” its general powers (“the Necessary and Proper Clause”). The 
Necessary and Proper Clause does not “license the exercise of any ‘great substantive 
and independent power[s]’ beyond those specifically enumerated.” Nat’l Fed’n of 
Indep. Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (citation omitted). 
169. 
Pursuant 
to 
the 
Tenth 
Amendment 
of 
the 
UNITED STATES 
CONSTITUTION, “the powers not delegated by the CONSTITUTION to the United States, 
nor prohibited by it to the States, are reserved to the States respectively, or to the 
people.” U.S. CONST. Amend. X. 
170. 
Nothing in the CONSTITUTION authorizes the federal agencies of the 
executive branch to impose the Contractor Mandate on states because requiring 
vaccinations for state employees is an exercise of the police power left to the states 
under the Tenth Amendment. 
171. 
The CONSTITUTION does not empower Congress to require anyone who 
deals with the federal government to get vaccinated. It is not a “proper” exercise of 
Congress’s authority to mandate that every employee who touches a federal contract 
or comes in contact with another employee who touches such a contract, has to be 
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vaccinated because the action here falls outside the scope of an Article I enumerated 
power. 
172. 
Defendants, through the Contractor Mandate, have exercised power 
that Congress does not possess under the CONSTITUTION and, therefore, cannot 
delegate to other branches of the federal government. 
173. 
If Congress intended the Procurement Act to authorize what the 
President claims, the Act exceeds Congress’s authority, and thus Defendants must be 
enjoined from taking any action under the Act. 
COUNT V 
Violation of the Tenth Amendment  
(Under Amendment X to the UNITED STATES CONSTITUTION) 
174. 
ABC incorporates each of the Complaint allegations stated above herein. 
175. 
Pursuant 
to 
the 
Tenth 
Amendment 
of 
the 
UNITED STATES 
CONSTITUTION, “the powers not delegated by the CONSTITUTION to the United States, 
nor prohibited by it to the States, are reserved to the States respectively, or to the 
people.” U.S. CONST. Amend. X. 
176. 
Defendants, through the Contractor Mandate, have exercised power far 
beyond what was delegated to the federal government by Constitutional mandate or 
congressional action. 
177. 
Neither Article II of the U.S. CONSTITUTION nor any act of Congress 
authorizes the federal agencies of the executive branch to implement the Contractor 
Mandate, which traditionally falls under the police power left to the states under the 
Tenth Amendment. 
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178. 
The Tenth Amendment explicitly preserves the “residuary and 
inviolable sovereignty,” of the states. Printz v. United States, 521 U.S. 898, 918–19 
(1997) (quoting The Federalist No. 39, at 245 (J. Madison)). 
179. 
By interfering with the traditional balance of power between the states 
and the federal government and by acting pursuant to ultra vires federal action, 
Defendants violated this “inviolable sovereignty,” and thus, the Tenth Amendment. 
180. 
Therefore, the Contractor Mandate was adopted pursuant to an 
unconstitutional exercise of authority by Defendants and must be invalidated. 
COUNT VI 
Unconstitutional Exercise of the Spending Clause 
(Under Article I, Section 8, Clause 1 of the UNITED STATES CONSTITUTION) 
181. 
ABC incorporates each of the Complaint allegations stated above herein. 
182. 
The challenged actions are unconstitutional conditions on the states’ 
receipt of federal funds. 
183. 
Article I, Section 8, Clause 1 of the UNITED STATES CONSTITUTION gives 
Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the 
Debts and provide for the common Defense and the general Welfare of the United 
States.” 
184. 
While “Congress may attach appropriate conditions to . . . spending 
programs to preserve its control over the use of federal funds,” it cannot wield federal 
funding to unreasonably constrain state autonomy. Nat’l Fed’n of Indep. Bus. v. 
Sebelius, 567 U.S. 519, 579 (2012). “[I]n some circumstances the financial inducement 
offered by Congress might be so coercive as to pass the point at which ‘pressure turns 
into compulsion.’” South Dakota v. Dole, 483 U.S. 203, 211 (1987). 
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185. 
Federal contracts are an exercise of the Spending Clause, yet the 
challenged actions ask Plaintiff-Intervenor’s to agree to a coercive contract term. 
186. 
The federal contracts at issue here account for considerable portions of 
Plaintiff -Intervenor’s budgets for essential research, education, and other necessary 
programs. The pressure on Plaintiff-Intervenor to comply with the Contractor 
Mandate rises to the level of coercion. The challenged actions are invalid for that 
reason alone.  
COUNT VII 
Violation of the APA 
(Under 5 U.S.C. § 706) 
187. 
ABC incorporates each of the Complaint allegations stated above herein. 
188. 
Pursuant to 5 U.S.C. § 553, agencies must publish “a notice of proposed 
rulemaking in the Federal Register before promulgating a rule that has legal force.” 
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S.Ct. 2367, 
2384 (2020); 5 U.S.C. § 553(b). 
189. 
Pursuant to 48 C.F.R. 1.501, “significant revisions” to the FAR must be 
made through notice-and-comment procedures. DOD, NASA, and the General 
Services Administration must jointly conduct the notice-and-comment process. Id. 
190. 
Instead of amending the FAR to implement this significant revision, the 
FAR Council issued a purported “class deviation” without engaging in the notice-and-
comment process. See 5 U.S.C. § 553. 
191. 
Proper “class deviations” must fit within one of the discrete definitions 
set forth in 48 C.F.R 1.401. 
192. 
Here, however, the FAR Deviation Clause fits none of the definitions. 
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193. 
Instead, the FAR Deviation Clause is in the nature of a rule within the 
meaning of the APA because it is “an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or prescribe law or 
policy.” 5 U.S.C. § 551(4). 
194. 
The FAR Council violated the APA by failing to comply with the notice- 
and-comment requirements for rulemaking. 
195. 
Good cause does not excuse the FAR Council’s failure to comply with the 
notice-and-comment process. See 5 U.S.C. § 553(b)(3)(B). 
COUNT VIII 
Violation of the APA 
(Under 5 U.S.C. § 706) 
196. 
ABC incorporates each of the Complaint allegations stated above herein. 
197. 
Under the APA, a court must “hold unlawful and set aside agency 
action” that is “not in accordance with law” or “in excess of statutory . . . authority, or 
limitations, or short of statutory right.” See 5 U.S.C. § 706(2)(A), (C). 
198. 
The OMB Determination adopting the Task Force guidance is contrary 
to law for at least four reasons. 
199. 
First, the OMB Determination violates 41 U.S.C. § 1303(a) because it is 
a government-wide procurement regulation, which only the FAR Council may issue. 
200. 
EO 14042 apparently seeks to circumvent § 1303 by delegating the 
President’s Procurement Act power to the OMB Director. 
201. 
That attempt is unlawful because the President has no authority to 
issue regulations under § 1303—only the FAR Council may issue government-wide 
procurement regulations. See Centralizing Border Control Policy Under the 
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Supervision of the Attorney General, 26 Op. OLC 22, 23 (2002) (“Congress may 
prescribe that a particular executive function may be performed only by a designated 
official within the Executive Branch, and not by the President.”). 
202. 
Second, and relatedly, the OMB rule is contrary to law because the 
Procurement Act does not grant the President the power to issue orders with the force 
or effect of law. Congress authorized the President to “prescribe policies and 
directives that the President considers necessary to carry out.” 40 U.S.C. § 121(a). 
203. 
“[P]olicies and directives” describe the President’s power to direct the 
exercise of procurement authority throughout the government. It does not authorize 
the President to issue regulations himself. 
204. 
Congress knows how to confer that power, as it authorized the GSA 
Administrator, in the same section of the statute, to “prescribe regulations.” Id. 
§ 121(c); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the 
legislature uses certain language in one part of the statute and different language in 
another, the court assumes different meanings were intended.”). 
205. 
And Congress has given the President the power to “prescribe 
regulations” in other contexts, typically in the realm of foreign affairs and national 
defense. See, e.g., 18 U.S.C. § 3496 (“The President is authorized to prescribe 
regulations governing the manner of executing and returning commissions by 
consular officers.”); 32 U.S.C. § 110 (“The President shall prescribe regulations, and 
issue orders, necessary to organize, discipline, and govern the National Guard.”). 
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206. 
Third, even if the Procurement Act authorized the President to issue 
orders with the force or effect of law, it would not authorize approval of the Task 
Force guidance. The President appears to assume that the Procurement Act’s 
prefatory statement of purpose authorizes him to issue any order that he believes 
promotes “an economical and efficient” procurement system. 40 U.S.C. § 101; see Ex. 
A at 1 (“This order promotes economy and efficiency in [f]ederal procurement.”). In 
doing so, the President mistakenly construes the prefatory purpose statement for a 
grant of authority. D.C. v. Heller, 554 U.S. 570, 578 (2008) (“[A]part from [a] clarifying 
function, a prefatory clause does not limit or expand the scope of the operative 
clause.”). 
207. 
And even if the Procurement Act did authorize the President to issue 
binding procurement orders solely because they may promote economy and efficiency, 
the OMB Determination does not adequately do so. Providing the federal government 
with an “economical and efficient system for” procurement is not a broad enough 
delegation to impose a national-scale vaccine mandate that Congress has not 
separately authorized. 
208. 
Further, the executive order is divorced from the practical needs of 
procurement. In order to maintain a steady and predictable flow of goods and 
services—and the advancement of science and technology through research and 
development—the federal procurement system requires a stable and reliable 
workforce to timely perform work required under tens of thousands of federal 
contracts and funding agreements. The Contractor Mandate disrupts the stability 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 39 of 44

40 
and reliability of the contractor workforce by forcing contractors to potentially fire 
unvaccinated and non-exempt covered employees, many of whom are highly skilled 
and essential to the work. 
209. 
Because the OMB Determination violates § 1303(a), seeks to exercise a 
delegated power the President does not possess, and relies on a misreading of the 
Procurement Act, it is contrary to law. 
COUNT IX 
Violation of the APA 
(Under 5 U.S.C. § 706) 
210. 
ABC incorporates each of the Complaint allegations stated above herein. 
211. 
Pursuant to the Administrative Procedure Act, agency action that is 
“arbitrary [or] capricious” is unlawful and must be set as aside by a court of competent 
jurisdiction. 5 U.S.C. § 706(2)(A). 
212. 
Pursuant to 48 C.F.R. 1.402, “[u]nless precluded by law, executive order, 
or regulation, deviations from the FAR may be granted [] when necessary to meet the 
specific needs and requirements of each agency.” 
213. 
The Contractor Mandate and the OMB Determination were 
implemented with no express findings, no explanation, and no consideration of the 
distinct and diverse universe of federal agencies. 
214. 
The Contractor Mandate and the OMB Determination impose universal 
and uniform requirements without regard to the particularized needs and 
circumstances of each federal agency and are therefore arbitrary and capricious in 
violation of the APA. 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 40 of 44

41 
COUNT X 
Declaratory Judgment 
(Under 28 U.S.C. § 2201(a)) 
215. 
ABC incorporates each of the Complaint allegations stated above herein. 
216. 
For all the forgoing reasons, Plaintiff-Intervenor request that the Court 
declare the Contractor Mandate unlawful, unconstitutional, and unenforceable. 
COUNT XI 
Injunctive Relief 
217. 
ABC incorporates each of the Complaint allegations stated above herein. 
218. 
The Contractor Mandate threatens immediate and irreparable harm to 
Plaintiff-Intervenor, including a loss of highly trained employees, difficulty in 
completing existing contracts, and significant expenditure of time and resources in 
ensuring compliance. 
219. 
Monetary damages or other remedies at law cannot adequately address 
the injury caused by the Contractor Mandate. 
220. 
The deadlines imposed in the Contractor Mandate will have widespread 
and permanent effects that no legal remedy can reverse, such that the only available 
remedy to redress the harms is injunctive relief. 
221. 
Balancing the hardships to Plaintiff-Intervenor relative to the hardships 
to Defendants, extraordinary equitable relief is warranted. 
222. 
Specifically, absent an injunction, Plaintiff-Intervenor’s operations will 
be jeopardized as a result of Defendants’ adoption and implementation of the 
unconstitutional, illegal, and logistically unworkable Contractor Mandate. 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 41 of 44

42 
223. 
On the other hand, the hardship of an injunction to Defendants is 
minimal; they simply must abide by the CONSTITUTION and the laws of the United 
States. 
224. 
Permanent injunctive relief would not disserve the public interest, 
because it would enjoin unconstitutional and illegal executive action. 
COUNT XII 
VIOLATION OF SMALL BUSINESS REGULATORY 
ENFORCEMENT FAIRNESS ACT 
 
225. 
ABC incorporates each of the Complaint allegations stated above herein. 
226. 
Defendants violated the Small Business Regulatory Enforcement 
Fairness Act (SBEFA), 29 U.S.C. § 604 in that they failed to describe the steps the 
agencies took to minimize the significant economic impact on small entities in 
accordance with the requirements of the statute, and the agencies in fact took no such 
steps, contrary to the explicit requirements of the Act. Many ABC members who 
perform or seek to perform federal contracts and subcontracts covered by the 
Mandate are small businesses who are directly harmed by the Mandate’s failure to 
address the injuries inflicted upon them. 
PRAYER FOR RELIEF 
Wherefore, Plaintiff-Intervenor respectfully requests that this Court: 
1. 
Enter judgment in favor of Plaintiff-Intervenor and against Defendants 
on all Counts asserted herein. 
2. 
Enter a declaratory judgment that Defendants, individually and 
collectively, have acted to impose a broad-sweeping, unlawful, and unconstitutional 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 42 of 44

43 
COVID-19 vaccine mandate, and that such COVID-19 vaccine mandate is unlawful 
and unenforceable. 
3. 
Grant a temporary, preliminary, and permanent injunction prohibiting 
Defendants and those acting in concert with them from enforcing this broad- 
sweeping, unlawful, and unconstitutional mandate. 
4. 
Grant any additional and different relief to which Plaintiff-Intervenor 
may be entitled. 
5. 
Award Plaintiff-Intervenor costs of litigation, including reasonable 
attorneys’ fees, as allowable by law. 
Respectfully Submitted this 14th day of December 2021.  
 
 
 
 
 
Attorneys for Plaintiff-Intervenor 
 
 
 
 
 
 
/s/ J. Larry Stine  
 
 
 
 
 
 
 
 
 
J. Larry Stine (Ga. Bar No. 682555) 
 
 
 
 
 
jls@wimlaw.com 
 
 
 
 
 
Kathleen J. Jennings (Ga. Bar No. 394862) 
 
 
 
 
 
kjj@wimlaw.com 
 
 
 
 
 
WIMBERLY LAWSON STECKEL SCHNEIDER  
 
 
 
 
 
 & STINE, PC 
 
 
 
 
 
3400 Peachtree Road, N.E. 
 
 
 
 
 
Suite 400 – Lenox Road 
 
 
 
 
 
Atlanta, GA 30326-1107 
 
 
 
 
 
404-365-0900 – Phone 
 
 
 
 
 
404-261-3707 – Fax 
 
 
 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 43 of 44

44 
CERTIFICATE OF SERVICE 
 
I hereby certify that on December 14, 2021, I caused a true and correct copy of 
the foregoing to be served on counsel of record for all parties via ECF.  
 
/s/ J. Larry Stine 
 
 
WIMBERLY LAWSON STECKEL SCHNEIDER  
J. Larry Stine 
 & STINE, PC 
3400 Peachtree Road, N.E. 
Suite 400 – Lenox Road 
Atlanta, GA 30326-1107 
404-365-0900 – Phone 
404-261-3707 – Fax 
jls@wimlaw.com 
Case 1:21-cv-00163-RSB-BKE   Document 101   Filed 12/14/21   Page 44 of 44

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