U.S. Senate committee leaders Aug. 6 urged the Obama administration to pull its “incomplete” guidance proposal to implement the Obama administration’s “blacklisting” Executive Order 13673 and suspend its related proposed rule until the entire proposal is completed. 

Senate Health, Education, Labor and Pensions committee Chairman Lamar Alexander (R-Tenn.), Homeland Security & Government Affairs Committee Chairman Ron Johnson (R-Wis.), regulatory affairs subcommittee Chairman James Lankford (R-Okla.), and workforce subcommittee Chairman Johnny Isakson (R-Ga.), sent letters to U.S. Department of Labor (DOL) Secretary Tom Perez and Office of Federal Procurement Policy Administrator and Federal Acquisition Regulatory (FAR) Council Chair Anne Rung expressing concern over the implementation of President Obama’s so-called “Fair Pay and Safe Workplaces” Executive Order. 

The letter to Secretary Perez asks for withdrawal of DOL’s current guidance because it fails to provide key information about how contractors will be affected. The letter to Administrator Rung asks that the FAR Council suspend its corresponding proposed rule until DOL issues completed guidance. The letters also ask both agencies for substantially longer review periods should they decide to re-issue completed proposals. 

In their letter to Rung, the senators wrote: “Unfortunately, DOL’s proposed guidance was intentionally published before it was completed, leaving significant issues unresolved – including whether prime contractors will be required to facilitate subcontractor reporting, and how contractors are expected to report violations of equivalent state labor laws. These factors will significantly increase the compliance costs and administrative burdens of any final rule. It is simply not possible to provide useful feedback without this critical information. In light of these vital omissions, it is unclear how the FAR Council was able to fairly and adequately assess the costs of its proposal.  

“If the Administration decides to continue to pursue this policy, we have requested that DOL provide a completed proposed guidance to the FAR Council so the Council can more appropriately evaluate the costs of its proposed rule. Once both proposals are completed, we request that they undergo the same Office of Information and Regulatory Affairs (OIRA) review process as the original proposals. If approved by OIRA, the proposals should be published on the same date in the Federal Register, and made available for significantly longer public comment periods than were originally offered.” 

The full text of the DOL letter can be found here. 

The full text of the FAR letter can be found here. 

Background

On July 31, 2014, President Obama issued Executive Order 13673 titled “Fair Pay and Safe Workplaces,” also known as the “blacklisting” Executive Order, which requires federal contracting agencies to consider contractors’ history of labor law violations when awarding certain federal contracts.

ABC has serious concerns with the proposal, which may result in quality federal contractors being arbitrarily and unfairly blacklisted from future federal contracts by newly designated bureaucrats. The proposal imposes 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.

Learn what ABC is doing to fight the blacklisting proposal at www.abc.org/blacklisting. To learn more about the proposal itself, including a list of the 14 federal laws covered by the proposal; covered violations; and parameters of what are considered “serious,” “willful,” “repeated,” or “pervasive” violations, review this Littler Mendelson memo provided by ABC General Counsel Maury Baskin.

This week ABC sent out an action alert to ABC member federal contractors requesting ABC members submit formal and substantive comments into the official rulemaking record before the Aug. 26, 2015, deadline. Next week, ABC will send out a brief alert through our grassroots system and Action App requesting ABC members file brief comments opposing the proposal.