Associated Builders and Contractors (ABC) today applauded a preliminary injunction
against the Obama administration’s Fair Pay and Safe Workplaces final rule, commonly referred to as “blacklisting,” issued by the U.S. District Court for the Eastern District of Texas late Monday night. The preliminary injunction prevents the Federal Acquisition Regulatory (FAR) Council from implementing the rule, which was scheduled to go into effect on Oct. 25.
ABC, its ABC Southeast Texas Chapter and the National Association of Security Companies (NASCO) filed its legal challenge
on Oct. 7
and filed a motion
for temporary restraining order and preliminary injunction on Oct. 13.
“Associated Builders and Contractors is pleased the court ruled that the Obama administration cannot order private businesses to publicly disclose mere accusations of labor law violations that have not been fully adjudicated,” said ABC Vice President of Regulatory, Labor & State Affairs Ben Brubeck. “By issuing this decision, the court has maintained the First Amendment rights of government contractors and protected them and taxpayers from the poorly crafted blacklisting rule.
“ABC supports policies that promote fairness and competition in government contracting while holding bad actors accountable, but has long maintained that this rule would violate the constitutional rights of contractors and drive up costs to taxpayers,” said Brubeck. “Not only does the court’s ruling protect the constitutional rights of government contractors and their employees from the latest attack by the Obama administration, but it will prevent a disruption to the federal government’s procurement process for critical goods and services that benefit the public.
“The ruling also pushes back against the Obama administration’s executive overreach and unfortunate attempt to circumvent the will of Congress, which has carefully crafted laws to deal with companies that violate contracting rules,” said Brubeck. “The administration should spend time improving its existing suspension and debarment process instead of creating a new regulatory regime that will increase costs, kill jobs, harm responsible small and large businesses and stifle innovators from entering the federal contracting marketplace.”
Nationally, ABC members performed more than 60 percent of all federal government construction contracts exceeding $25 million from FY2009 to FY2015.
A national survey of ABC members
conducted in September found that:
- 51 percent of respondents said the rule’s onerous requirements, including reporting alleged violations that firms are still contesting, will force them to abandon the pursuit of federal contracts
- 91 percent of contractors said the rule will impose a significant or extreme burden for their firm through new requirements to compile information needed to comply with final rule
- 93 percent said the final rule will make the contracting process less efficient
- 98 percent said the final rule will make the contracting process more expensive.
ABC has consistently opposed
the blacklisting proposal since the White House issued the Fair Pay and Workplaces Executive Order 13673
in July, 2014 and has:
- Supported legislative efforts to protect contractors from the policy
- Submitted comments in August 2015 urging the withdrawal of the FAR and U.S. Department of Labor (DOL) proposals along with more than 300 ABC 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 OMB Beth Cobert.
For more information, visit abc.org/blacklisting
ABC was represented by Maury Baskin of the law firm Littler Mendelson, PC, ABC's general counsel.