OVERVIEW

On Aug. 24, 2016, the Obama administration issued the Fair Pay and Safe Workplaces (or “blacklisting”) final rule, which would have threatened federal contractors’ due process rights, injected unwarranted subjectivity and added needless and duplicative layers of bureaucracy into the federal acquisition process.

First proposed on July 31, 2014, via President Obama’s Executive Order 13673, ABC was an outspoken critic and opponent of the illegal blacklisting rule from the start. On Oct. 24, 2016, implementation of most of the rule’s onerous and duplicative reporting and disclosure requirements were temporarily blocked when a U.S. District Court judge ruled in favor of ABC’s lawsuit requesting a preliminary injunction.

UPDATE

During the 115th Congress, the U.S. House of Representatives and Senate passed resolution H.J. Res. 37, which President Trump signed into law on March 27, 2017, utilizing the Congressional Review Act to block the blacklisting final rule from taking effect and prevent future administrations from promulgating a similar regulation—essentially permanently eliminating the final rule via regulatory or executive action unless it is passed by a future Congress and signed into law by the president.

On Nov. 6, 2017, three federal agencies issued a final rule amending the Federal Acquisition Regulation to withdraw the blacklisting final rule and rescind President Obama's Executive Order 13673. Additionally, the U.S. Department of Labor withdrew the corresponding guidance document.

To circumvent the Congressional Review Act and actions of the 115th Congress killing the rule, advocates intend to lobby the 117th Congress to pass the blacklisting proposal through legislation if their allies control Congress and the White House.