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ABC applauded the U.S. Senate for joining the U.S. House of Representatives in passing legislation (H.J. Res. 37) that will block implementation of the Obama administration’s controversial Fair Pay and Safe Workplaces Executive Order 13673, commonly referred to as “blacklisting,” through the Congressional Review Act (CRA). The Senate passed the measure on March 6 by a vote of 49-48.

“Associated Builders and Contractors commends Congress for taking action to free the contracting community and taxpayers from the disastrous effects of the Obama administration’s illegal blacklisting rule," said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Since first proposed as an executive order, ABC has led the fight against this policy—which a U.S. District Court correctly ruled would violate federal contractors’ due process rights by treating non-adjudicated and often nefarious and frivolous per-adjudicated claims of violations the same as actual wrongdoing.

“By using the Congressional Review Act to nullify this rule, Congress has taken an important step in removing burdensome and duplicative reporting requirements and eliminating a costly barrier to entry that would have discouraged many small contractors from bidding on government contracts,” said Brubeck. “ABC looks forward to working with the Trump administration and Congress to improve the federal government’s existing suspension and debarment system, which already requires contractors to report violations, as well as to ensure contracts are bid through a process that encourages competition from all qualified contractors while protecting the American workforce and taxpayers’ investment.”

Implementation of the blacklisting rule’s reporting and disclosure requirements was temporarily blocked on Oct. 24, 2016, when a U.S. District Court judge for the Eastern District of Texas ruled in favor of ABC’s lawsuit and granted a preliminary injunction against the reporting provisions of the rule, which were scheduled to take effect Oct. 25, 2016. Under the CRA, Congress may pass a resolution of disapproval to prohibit a federal agency from implementing a rule without congressional authorization with a majority vote in both houses of Congresses. The U.S. House of Representatives approved H.J. Res. 37 on Feb. 2 with a bipartisan vote of 236-187.

If President Trump signs the CRA resolution into law, which a Feb. 1 Statement of Administration Policy issued by the White House signaled he will, it will block the blacklisting rule from taking effect and prevent future administrations from promulgating a similar rule—essentially permanently eliminating the rule.

According to a September 2016 survey of ABC members:

  • 51 percent 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 said the rule will impose a significant or extreme burden for their firm through new requirements to compile information needed to comply with the final rule;
  • 93 percent said the final rule will make the contracting process less efficient; and
  • 98 percent said the final rule will make the contracting process more expensive.

In addition to its lawsuit, 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 Federal Acquisition Regulatory Council 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; and
  • Spoken out against the executive order in an Oct. 13, 2014, White House listening session hosted by Secretary Perez, Director Muñoz and Beth Cobert, deputy director at the U.S. Office of Management and Budget.

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