You are here:   Politics & Policy > Issues > Procurement


The Obama administration has attempted to impose increased burdens on federal government contractors via policies that needlessly injure competition, increase taxpayer costs, stifle job creation, and delay the delivery of goods and services to the government and its customers. The most abusive federal contracting policies affecting the construction industry are the administration’s continued efforts to expand the use of project labor agreements and the expanded application and enforcement of “prevailing wage” requirements under the Davis-Bacon Act.

See below for the latest news, legislative action, regulatory developments and compliance tools for hot button issues in federal, state and local procurement.

New Member Resources on Final ‘Blacklisting’ Rule

In the wake of the Aug. 24 issuance of the final rule on “blacklisting,” ABC is quickly deploying resources to help members comply with new requirements while pursuing legislative efforts and, potentially, litigation to protect contractors and taxpayers from the policy.

Officially known as the Fair Pay and Safe Workplaces final rule, the measure will require federal contractors and subcontractors to disclose any “violations” of 14 federal labor laws and OSHA-approved state plans to the federal government before being awarded federal contracts covered by this rule.  

The rule was issued by the Federal Acquisition Regulatory (FAR) Council accompanied by a guidance document from the U.S. Department of Labor (DOL) and a White House amendment to Executive Order 13673. ABC issued a press release slamming the final blacklisting rule immediately afterward.

The final rule is effective on Oct. 25, 2016, and will be implemented in phases that will impact prime contractors and subcontractors pursuing federal contractors of $500,000 or more when it is fully put into action. Prime contractors pursuing federal contracts over $50 million issued after Oct. 25, 2016, will be the first group that must comply with this rule. In addition, on Jan. 1, 2017, the rule’s paycheck transparency provisions take effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers. 

ABC’s general counsel, Littler Mendelson P.C., has prepared an analysis of the blacklisting final rule. In addition, ABC will offer a free webinar for ABC members on Sept. 20 at 2 p.m. ET, titled, Federal Contractors:  Learn About the Obama Administration’s Final Rule on “Blacklisting.”  

The final rule is expected to increase costs for taxpayers, threaten the livelihood of employees who work for responsible federal contractors and cripple the federal procurement process with needless uncertainty, delays and litigation. It places a new and costly regulatory burden on the federal contracting community and creates a process that will allow trial lawyers to extort larger settlements from firms, enable bureaucratic agencies to extract costly compliance agreements for conduct that may have been legal, and give labor unions leverage to persuade businesses to capitulate to their demands.

“ABC supports a level and transparent playing field for federal contractors and believes unethical firms should be held accountable,” said Ben Brubeck, ABC’s vice president of Legal, Regulatory and State Affairs. “However, there are many troubling aspects of this rule. For example, the final rule strips federal contractors of their due process rights by forcing them to disclose pre-adjudicated  ‘labor law decisions’ and alleged violations of the covered laws to government officials that can be used as the basis for contracting officers to deny a contract to an otherwise qualified firm.”  

“For this, and many other practical reasons raised in our comments to government officials during the past two years, ABC will continue to explore every available avenue, including the judicial system, to protect taxpayers, contractors and their employees, whose livelihoods rely on a fair procurement system, from this overreaching policy,” said Brubeck.

ABC has consistently opposed the blacklisting proposal since the White House first issued the Fair Pay and Safe Workplaces Executive Order 13673 on July 31, 2014. Specifically, ABC has:

  • Participated in a June 2016 meeting with the Office of Information and Regulatory Affairs to express concerns with the proposals
  • Supported legislative efforts to protect taxpayers and contractors from the policy. ABC has sent letters in support of amendments to roll back the blacklisting proposal in the FY2017 House Financial Services, General Government Appropriations bill, the Labor-HHS Appropriations bills in the U.S. House and Senate and the National Defense Authorization Act (NDAA). The House and Senate plan to take up these appropriations bills when they return from recess in September and the NDAA is currently in conference
  • Submitted comments in August 2015 urging the withdrawal of the FAR and DOL proposals along with more than 300 member companies 
  • Joined 19 other business trade groups in sending a Nov. 6, 2014, letter to DOL Secretary Thomas Perez and Director of the White House Domestic Policy Council Cecilia Muñoz requesting the president withdraw the executive order 
  • Spoken out against the executive order in an Oct. 13, 2014, White House listening session hosted by Secretary Perez, Director Muñoz and Deputy Director at the Office of Management and Budget Beth Cobert.
For more information, visit abc.org/blacklisting.

DOL Resources on the final rule:

Please contact Ben Brubeck if you have questions or concerns.

"Blacklisting" Fair Pay and Safe Workplaces

OVERVIEW

President Obama’s Executive Order (EO) 13673, known as the “Blacklisting” EO because it could prevent some federal contractors from winning future federal contracts, will discourage qualified large and small businesses from pursuing federal contracts, threaten the livelihood of millions of Americans and increase costs to taxpayers.


ABC SUPPORTS

• Congress, the administration, federal procurement officers and stakeholders working together to develop a balanced approach to creating and implementing any reforms to the federal contracting procurement process.
• Safeguards for fair and transparent competition and protections against subjectivity and corruption in federal contracting.
• Federal agencies awarding contracts based on merit to firms that can deliver the highest quality product at the best price.
• Appropriations-based funding limitations on the DOL and FAR's blacklisting proposals.

ABC OPPOSES

• Federal contractors who repeatedly and intentionally break federal labor and contracting laws and regulations.
• Executive Order 13673 and any executive order, legislation or regulation that would deny federal contractors due process and permit or encourage discrimination in federal contracting based on arbitrary criteria, pre-adjudicated and/or false accusations, or a contractor’s labor affiliation.
• Any executive order, legislation or regulation that could discourage competition and delay federal construction projects by adding new levels of costly and time-consuming bureaucratic red tape to the federal contracting process.

BACKGROUND

On July 31, 2014, President Obama issued The Fair Pay and Safe Workplaces EO 13673, which places a sweeping new regulatory scheme on federal contractors that will disrupt the federal procurement process, significantly increase red tape and costs for both government and industry, and serve as a barrier to federal contracting for many businesses.

The EO instructs federal agencies to determine whether businesses seeking federal contracts are “responsible” enough to be awarded a contract based on a subjective review of its three-year compliance history with 14 federal and equivalent state labor, employment and safety laws. The EO could result in some of the best federal contractors being arbitrarily blacklisted from winning future federal contracts for committing even minor violations of a rapidly growing and constantly changing labyrinth of workplace laws and regulations. Even the federal government has a difficult time complying with the laws consistently.

Flouting Congressional authority, the EO disregards existing statutory enforcement powers found in the Federal Acquisition Regulation (FAR) and various labor laws. In addition, the EO imposes new and redundant data collection, review, inter-agency consultation and enforcement procedures. The EO also unfairly restricts the ability of employers to use arbitration to resolve employee disputes in certain circumstances (Federal law and subsequent Supreme Court decisions have made clear these arbitration agreements are acceptable).
 
UPDATE

On August 24, the Federal Acquisition Regulatory (FAR) Council issued a final rule that was accompanied by a guidance document from the U.S. Department of Labor (DOL) and a White House amendment to Executive Order 13673. ABC issued a press release slamming the final blacklisting rule immediately afterward.

The final rule is effective on Oct. 25, 2016, and will be implemented in phases that will impact prime contractors and subcontractors pursuing federal contracts of $500,000 or more when it is fully put into action. Prime contractors pursuing federal contracts over $50 million issued after Oct. 25, 2016, will be the first group that must comply with this rule. In addition, on Jan. 1, 2017, the rule’s paycheck transparency provisions take effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers. 

ABC’s general counsel, Littler Mendelson P.C., has prepared an analysis of the blacklisting final rule and additional information can be found in Newsline. ABC will offer a free webinar for ABC members on Sept. 22 at 2 p.m. ET, titled, "Federal Contractors:  Learn About the Obama Administration’s Final Rule on “Blacklisting.”  


ABC Survey Finds Blacklisting Rule Will Force Many Contractors to Abandon Federal Marketplace

In the wake of the Aug. 24 issuance of the “blacklisting” final rule by the Obama administration, ABC recently surveyed membership to determine the impact of the rule on the contracting community interested in pursuing federal contracts. ABC’s survey of its members reveals that more than 51 percent of respondents said the final rule’s onerous requirements, including reporting alleged violations that firms are still contesting, will force them to abandon the pursuit of federal contracts. 

Read More

New Member Resources on Final ‘Blacklisting’ Rule

In the wake of the Aug. 24 issuance of the final rule  on “blacklisting,” ABC is quickly deploying resources to help members comply with new requirements while pursuing legislative efforts and, potentially, litigation to protect contractors and taxpayers from the policy.

Read More

Associated Builders and Contractors: 'Blacklisting' Final Rule Hurts Contractors, Employees and Taxpayers

ABC slammed the flawed Fair Pay and Safe Workplaces final rule, commonly referred to as “blacklisting,” released by the Federal Acquisition Regulatory (FAR) Council. The rule, which was accompanied by a guidance document from the U.S. Department of Labor and a White House amendment to Executive Order 13673, will increase costs for taxpayers, threaten the livelihood of millions of Americans who work for responsible federal contractors and cripple the federal procurement process with needless uncertainty, delays and litigation. 

Read More


 


Minimum Wage Increasing for Workers on Covered Federal Contracts in January

Beginning Jan. 1, 2017, the minimum wage for workers on covered federal contracts and service contracts will increase to $10.20 per hour from $10.15 per hour in 2016. The increase is dictated by the Oct. 7, 2014, U.S. Department of Labor’s Wage and Hour Division final rule that implemented Executive Order 13658.

Read More

ABC Files Comments on New Paid Sick Leave Requirement for Fed Contractors

On April 12, ABC submitted comments in response to the U.S. Department (DOL) of Labor Wage and Hour Division’s proposed rule on establishing paid sick leave for federal contractors. The proposed rule  requires certain federal contractors to offer employees up to seven days of paid sick leave annually, including paid leave for family care. The paid sick leave required by the proposal is in addition to a contractor’s obligations under the Service Contract Act (SCA) and Davis-Bacon Act (DBA). Therefore, a contractor may not receive credit toward its prevailing wage or fringe benefit obligation under the SCA and DBA for paid sick leave provided in satisfaction of the requirements of the proposed rule.  

Read More

Federal Contractor Alert: DOL Releases Proposed Rule on Paid Sick Leave

On Feb. 25, 2016, the U.S. Department of Labor (DOL), Wage and Hour Division released a proposed rule to implement Executive Order 13706 requiring certain federal contractors to offer employees up to seven days of paid sick leave annually, including paid leave for family care. ABC’s General Counsel Littler Mendelson, P.C prepared an in-depth analysis of the DOL proposal, which can be read here. 

Read More


ABC Files Comments on New Paid Sick Leave Requirement for Fed Contractors

On April 12, ABC submitted comments in response to the U.S. Department (DOL) of Labor Wage and Hour Division’s proposed rule on establishing paid sick leave for federal contractors. The proposed rule requires certain federal contractors to offer employees up to seven days of paid sick leave annually, including paid leave for family care. The paid sick leave required by the proposal is in addition to a contractor’s obligations under the Service Contract Act (SCA) and Davis-Bacon Act (DBA). Therefore, a contractor may not receive credit toward its prevailing wage or fringe benefit obligation under the SCA and DBA for paid sick leave provided in satisfaction of the requirements of the proposed rule.

Read More

Federal Contracting

The Obama administration has attempted to impose increased burdens on federal government contractors via executive actions that needlessly restrain competition, increase taxpayer costs, stifle job creation, and delay the delivery of goods and services to the government and its customers.

Read More


There are currently no posts.

Conference Offers In-Depth Look at Public-Private Partnerships

Join ABC and a growing list of industry professionals in Dallas, Texas, Feb. 23-25, for the annual Public-Private Partnership Conference (P3C), one of the largest gatherings of government and industry development professionals in the country.  The conference will host more than 750 owners, industry executives, key decision-makers, and more than 100 speakers for three days of in-depth learning, business development, and networking opportunities to address the critical principles behind successful public-private partnerships (P3).  

Read More

Public-Private Partnership Miami Summit Addresses Social Infrastructure

During the inaugural P3s for Public Buildings Summit Nov. 17-18 in Miami, Fla., the National Council for Public-Private Partnerships (NCPPP) and the Performance Based Building Coalition (PBBC) will team up to educate stakeholders about developing and financing  public-private partnerships (P3s) for public buildings,  understanding federal policy challenges and solutions, forecasting the future of the P3 marketplace and highlighting specific examples of successful P3 projects.

Read More

ABC Concerned Senate Water Resource Bill will Expand Davis Bacon, Exclude P3s

In response to the House-Senate Conference meeting on the Water Resources Reform and Development Act (H.R. 3080) and the Water Resources Development Act (S. 601), ABC Jan. 7 sent a letter to members of Congress thanking them for recognizing the importance of our nation’s water infrastructure and for moving forward with the first Water Resource Reauthorization bill since 2007. However, ABC also expressed concern that the proposed Senate bill would expand Davis Bacon requirements and exclude a public-private partnership (P3s) program.

Read More