Contracting by Executive Order: Courts and Congress Push Back on Contractors’ Behalf

Wiley – Federal contractors are all too familiar with having new requirements imposed through executive orders, which often direct the creation of new Federal Acquisition Regulation (FAR) clauses to be inserted into government contracts. The executive orders and FAR clauses frequently impose significant new compliance burdens on government contractors, though the clauses rarely provide a mechanism for recovery of the additional compliance costs. Recent developments suggest the tide may be shifting in contractors’ favor, however, as both federal courts and Congress have taken steps to push back on Presidents’ expansive use of executive orders to impose new requirements on federal contractors.