Senators cite incomplete guidance as roadblock to critical public feedback on proposed "blacklisting" rule that could open the door to subjectivity, abuse in federal contracting process 

WASHINGTON, D.C., August 6^th – Senate labor and government affairs leaders today urged the Obama administration to pull its “incomplete” guidance proposal to implement an executive order forcing federal contractors to detail their past labor law record, and suspend its related proposed rule until the guidance is completed.

Senate Homeland Security & Government Affairs Committee Chairman Ron Johnson (R-Wis.), labor committee Chairman Lamar Alexander (R-Tenn.), regulatory affairs subcommittee Chairman James Lankford (R-Okla.), and workforce subcommittee Chairman Johnny Isakson (R-Ga.), today sent letters to Labor 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.”

Background:

On July 31, 2014, President Obama issued an Executive Order 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. Federal contractors are concerned that the Executive Order will open the door to subjectivity, favoritism and abuse in the federal contracting process.                                              

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

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

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