The Federal Acquisition Regulation (FAR) Acquisition Environmental and Labor Law Team (the “Law Team”) assigned to implementing President Obama’s July 31, 2014 Executive Order 13673, Fair Pay and Safe Workplaces (the EO), is buried in over 900 comments. This EO requires both government contracting officers and contractors to track and coordinate contractor and subcontractor compliance with federal and certain state labor laws starting in 2016. Contractors that have gone through a Department of Labor administrative merits determination or civil adjudication and even may have fully resolved their compliance problems will now face a second round of scrutiny and the possibility of additional remedial measures being imposed. Contracting officers who are made aware of violations of labor laws post-award must consult with newly appointed agency Labor Compliance Advisors and decide what remedial actions, if any, are required. Remedies available to contracting officers include requiring contractors to enter into agreements with the government, deciding not to exercise options, terminating contracts, or referring the contractor to the agency’s suspension and debarment official—in effect, a form of contractor blacklisting.
On May 28, 2015, the U.S. Department of Labor (DOL) and FAR Council began implementing the EO— the DOL with Proposed Guidance and the FAR Council with a Proposed Rule. The original comment period on the Proposed Rule (also known as FAR Case 2014-025) was set to expire on July 27, 2015. However, following receipt of a July 15, 2015 letter from the chairs of eight congressional committees and subcommittees requesting that the guidance and proposed regulations be withdrawn, the deadline for comments was extended first to August 11, and then to August 26, 2015.
Edward Loeb, the designated GSA Case Manager/Procurement Analyst for the FAR Law Team handling FAR Case 2014-025, when contacted the week of September 14, 2015, was unable to say how long it would take to review all of the comments. The FAR Law Team has been tasked with reviewing all of the comments, drafting the final FAR rule, and issuing a team report not later than November 18, 2015. If what happened with the Combating Trafficking in Persons rule, with more than a hundred comments, is any guide, then it will likely take a lot longer than November 18, 2015 to review the more than 900 comments and issue a final rule. This calls into question whether the final rule will be issued by 2016, and the sheer number of comments illustrates the concern that contractors and the public have over the contents, requirements, and impact of this rule.
Those interested in reading all of the comments can find them by searching “Fair Pay and Safe Workplaces” at www.regulations.gov and clicking first on any of the links with FAR Case 2014-025 in the name of the file, then by clicking on the Open Docket Folder near the top of the screen.