- Contractor Blacklisting for Defense Contractors? The HASC Says “Not So Fast”
- May 19, 2016 | Authors: Harold P. Coxson; James J. Murphy
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Washington Office
- At last, we have a little good news for government contractors. By a vote of 34-28 taken late in the evening on April 27, 2016, the House Armed Services Committee (HASC) adopted a measure that would block the application of Executive Order 13673, Fair Pay and Safe Workplaces (EO 13673) to the U.S. Department of Defense or the National Nuclear Security Administration. The measure came in the form of the Kline-Wilson Amendment to the National Defense Authorization Act for Fiscal Year 2017 (FY 2017 NDAA). The amendment would spare these two agencies from the reach of the executive order and the implementing regulations and guidance that contractors are awaiting from the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor (DOL).
Since EO 13673 was first announced by President Obama on July 31, 2014, government contractors in the U.S. aerospace and defense industries have been gravely concerned about the impact that EO 13673 could have on their ability to win and keep government contracts. Better known as the “contractor blacklisting” regulations, the guidance from the DOL and the proposed regulations from the FAR Council would create a system of de facto debarment of federal contractors based on alleged violations of 14 federal labor laws. Once final, the regulations also would deprive contractors of their due process rights in connection with enforcement actions taken by the federal agencies responsible for enforcing these laws.
The Kline-Wilson Amendment comes at a time when the final blacklisting regulations are expected to be released. In November of 2015, the DOL’s Fall 2015 Semiannual Regulatory Agenda set April of 2016 as the target date for release of the final DOL Guidance and FAR Council regulations.
Supporters of the Kline-Wilson Amendment still have a long way to go. The amendment will face stiff opposition from organized labor when the FY 2017 NDAA moves to the floor of the House. Should the measure survive the House, approval by the Senate will be required before the FY 2017 NDAA makes its way to the president.
Although the legislative battle is far from over, at least it has begun.