Comments Submitted to DOL and FAR Formally Ask Administration to Rescind ‘Blacklisting Proposal’

Washington, D.C. – Associated Builders and Contractors (ABC) today submitted comments urging the withdrawal of the Federal Acquisition Regulatory (FAR) Council’s Notice of Proposed Rulemaking (NPRM) and the U.S. Department of Labor’s (DOL) Notice of Proposed Guidance (NPG) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (Executive Order 13673), commonly referred to as the blacklisting proposal.

“ABC believes many aspects of the president’s blacklisting proposal are illegal, the most egregious of which may be the treatment of mere allegations of misconduct as violations of federal law, threatening to deprive contractors of their due process rights,” said ABC Vice President of Government Affairs Geoff Burr. “Contractors need a fair and transparent federal procurement process, and unless drastically rewritten, this proposal will have a significant negative impact on the entire construction industry, stretching far beyond the federal contracting community. ABC has consistently opposed the overreaching proposal as unfair to taxpayers, contractors and their employees, and will continue to fight it in the courts, Congress and through any additional available avenue.”

From FY 2009 to FY 2014, ABC members performed more than 56 percent of all federal government construction contracts exceeding $25 million, according to a recent review of federal government construction contracts. In its comments, ABC cited numerous examples of how the DOL and FAR proposal violates federal law and will damage the federal contracting community and construction industry as whole. Additionally, ABC notes in its comments:

“Both the NPRM and NPG are unlawful, impracticable and extremely burdensome to taxpayers and to government contractors, particularly small businesses in the construction industry. Both the Executive Order and the Proposals to implement it should be rescinded in their entirety.”

ABC continued, “The proposal will have a significant and broad impact on the entire construction industry. For example, in 2014, there was $962.057 billion worth of construction put in place. Of that amount, $275.698 billion was public construction, and $22.735 billion of that was federal construction. We estimate the vast majority of the federal construction put in place is subject to the new proposals, as few federal construction contracts are below the $500,000 proposal threshold. In addition, the proposals improperly impose reporting requirements on employers based upon their performance of work unrelated to the performance of their government contracts, by apparently requiring reports of alleged violations arising on non-government projects regardless of size and regardless of the private or public nature of the work being performed.”

ABC has consistently opposed the blacklisting proposal as unfair to contractors, their employees and taxpayers beginning with the White House’s July 2014 executive order ordering FAR to develop the rule. ABC officials spoke out against the Fair Pay and Safe Workplaces executive order in an Oct. 13, 2014, White House listening session hosted by DOL and the Office of Management and Budget. ABC joined 19 other business trade groups in sending a Nov. 6, 2014, letter to DOL Secretary Perez and Director of the White House Domestic Policy Council Cecilia Muñoz requesting the president withdraw the Fair Pay and Safe Workplaces executive order. In addition, as a member of the Acquisition Reform Working Group, ABC submitted a letter April 20 to the U.S. House and Senate Armed Services Committees outlining major concerns with the proposal.

ABC has also supported efforts in the U.S. Senate, led by Sen. Lamar Alexander (R-Tenn.), Sen. Ron Johnson (R-Wis.), Sen. James Lankford (R-Okla.) and Sen. Johnny Isakson, (R-Ga.) and in the U.S. House of Representatives, led by Rep. John Kline (R-Minn.), Rep. Jason Chaffetz (R-Utah), Rep. Steve Chabot (R-Ohio), Rep. Phil Roe (R-Tenn.), Rep. Tim Walberg, (R-Mich.), Rep. Jim Jordan (R-Ohio), Rep. Richard Hanna (R-N.Y.) and Rep. Cresent Hardy (R-Nev.), to oppose the proposal.

The FAR and DOL twice extended the deadline for submitting comments on the blacklisting proposal, most recently extending the deadline by 15 days to Aug. 26. A final rule and guidance will be published and implemented after public comments have been reviewed.

To read the comments in their entirety, click here. In addition, more than 350 ABC members also submitted comments urging the withdrawal of the blacklisting proposal. To view a summary of ABC’s efforts in opposition to the proposal, visit abc.org/blacklisting.
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