USDA Seeks to ‘Blacklist’ Government Contractors for Labor and Employment Law Violations | Jackson Lewis P.C.

The U.S. Division of Agriculture (USDA) posted a Notice of Proposed Rulemaking (NPRM) on February 17, 2022, looking for to update its deal acquisition requirements. Inside of the proposed rulemaking, the USDA integrated two requirements that contractors certify compliance with various labor and work regulations in the course of the phrase of the proposed acquisition, as nicely as disclose specific adjudicated labor and work legislation violations.

The labor and employment legal guidelines and Executive Orders issue to the certification necessity are:

  • The Truthful Labor Requirements Act
  • The Occupational Security and Health and fitness Act
  • The Migrant and Seasonal Agricultural Employees Defense Act
  • The Countrywide Labor Relations Act
  • The Davis-Bacon Act
  • The Service Deal Act
  • Govt Purchase 11246 (Equivalent Employment Chance)
  • Part 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act
  • The Family members and Clinical Depart Act
  • Title VII of the Civil Rights Act of 1964
  • The People with Disabilities Act of 1990
  • The Age Discrimination in Work Act of 1967
  • Govt Get 13658 of February 12, 2014 (Creating a Least Wage for Contractors)
  • Equal Point out legislation, as outlined by the Secretary of Labor in direction
  • Government Purchase 13627 (Strengthening Protections From Trafficking in Folks in Federal Contracts)

The proposed regulations would call for the USDA to include things like two clauses in each provide and company acquisition — such as design — earlier mentioned the simplified acquisition threshold.

Underneath the very first clause, by accepting a agreement, the contractor must certify that it — and its subcontractors and suppliers — are in compliance with specific labor and employment legislation, together with these over, and equivalent point out rules. Contractors and their subcontractors are also demanded to immediately report to the contracting officer (CO) any potential adjudications of noncompliance. Noticeably, the NPRM delivers that the USDA will look at certification underneath this clause to be a certification for reasons of the Untrue Statements Act.

Underneath the next clause — “Past Functionality Labor Law Violations”— the contractor is expected in its bid to certify that it and all subcontractors, to the ideal of the offeror’s knowledge and belief, are in compliance with all “previously expected corrective actions” for “adjudicated” labor and work legislation “violations.” The proposed rule does not determine the quoted terms and terms. Prior to getting any award, the contractor ought to present a list of any these violations and will have an opportunity to disclose any methods taken to accurate the violations of, or boost compliance with, this sort of labor and work guidelines. The contractor will have to update the CO each and every six months on the violation and compliance details presented in the bid.

The next proposed clause could lead to blacklisting of numerous govt contractors with adjudicated violations.

The said purpose of the regulation is “to determine whether a contractor is a liable source that has a satisfactory report of integrity and company ethics.” By disclosing previous functionality labor legislation violations, the CO might determine if the bidding contractor has a satisfactory record of integrity and enterprise ethics and deny long term get the job done. The conditions or threshold of past violations that would qualify a contractor as unsatisfactory are unclear.

As opposed to former attempts to go blacklisting regulations, the USDA’s proposed regulation is slightly much more measured. As opposed to the Obama Administration’s Govt Buy 13673, for example, this regulation only considers adjudicated labor and work regulation violations, as opposed to each alleged and adjudicated violations. EO 13673 was enjoined by a federal court, and later revoked by an Government Purchase beneath President Donald Trump, and H.J. Resolution 37, which disapproved the Federal Acquisition Regulatory (Significantly) Council rules implementing the Executive Purchase.

The comment period deadline is at the moment March 21, 2022, but field stakeholders are urging the USDA to extend the deadline a further 90 days to permit for effective and significant remarks. Need to the USDA undertake the proposed laws in a ultimate rule, there will be likely popular result. Congress a short while ago introduced a $1.5 trillion paying offer, $25.125 billion of which is slated to go to agriculture and rural-similar agencies to handle local climate modify, rural broadband initiatives, and fairness programs aimed for underserved famers. All these initiatives will give myriad acquisition possibilities for federal contractors.

The USDA’s proposed rulemaking could signal the commencing of company-degree attempts to impose blacklisting policies all over the federal governing administration. The standing of opportunity blacklisting of federal contractors and subcontractors is developing quickly, and lawful issues are expected.