Executive Order 14042 directs the Federal Acquisition Regulatory Council to

Summary

This order in State of Florida v. Bill Nelson, in the Middle District of Florida, Tampa Division, discusses Executive Order 14042, which directs the Federal Acquisition Regulatory Council to amend the Federal Acquisition Regulation (FAR) to include a clause requiring compliance with guidance issued by the Safer Federal Workforce Task Force. It states that Florida contended in reply and during the hearing on the motion for a preliminary injunction that § 1707 requires notice and comment for each agency's implementation of a class deviation. The order allows Florida to file a supplemental brief not to exceed ten pages by December 15, 2021, and the defendants to respond in a brief not exceeding ten pages by December 22, 2021.

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Full text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

THE STATE OF FLORIDA,

Plaintiff,

v.

CASE NO. 8:21-cv-2524-SDM-TGW

BILL NELSON, et al.,

Defendants.
___________________________________/

ORDER

Executive Order 14042 directs the Federal Acquisition Regulatory Council to
amend the Federal Acquisition Regulation (FAR) to include a clause requiring
compliance with guidance issued by the Safer Federal Workforce Task Force and
approved by the Director of OMB.  Pending the FAR Council’s rulemaking to
amend the FAR, the executive order, “effective immediately,” states that federal
agencies “shall, to the extent permitted by law, ensure that contracts and contract-
like instruments include” the clause.  In accord with the executive order, the FAR
Council has issued guidance instructing each agency to include the clause by “class
deviations” from the FAR (until the FAR Council amends the FAR to include the
clause).

In reply and during the hearing on the motion for a preliminary injunction,
Florida contended that 41 U.S.C. § 1707 (requiring notice and comment for, and

- 2 -

delaying the effectiveness of, a “procurement policy, regulation, procedure, or form”)
applies to each agency’s implementing a class deviation to include the clause in each
contract.

Not later than DECEMBER 15, 2021, Florida may in a supplemental brief
not to exceed ten pages address:

(1)
Whether the procedural requirements of 41 U.S.C. § 1707 (or another
requirement of notice and comment and delayed effectiveness) apply to an agency
implementing the class deviations in accord with the executive order’s direction and
the FAR Council’s instruction.

(2)
Whether a United States District Court has jurisdiction to resolve a
challenge under 41 U.S.C. § 1707 to an agency’s implementation of the deviations.

(3)
Whether the agencies subject to the executive order have complied with
the requirements and exceptions of 41 U.S.C. § 1707.

(4)
Whether relief is available and, if so, what kind, against the named
defendants if the agencies are subject to, but fail to comply with, the requirements of
41 U.S.C. § 1707.

Not later than DECEMBER 22, 2021, the defendants may respond in a brief
not exceeding ten pages.

ORDERED in Tampa, Florida, on December 9, 2021.

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