The U.S. Department of Agriculture (USDA) released a Notice of Proposed Rulemaking (NPRM) on February 17, 2022, in search of to update its contract acquisition needs. Within just the proposed rulemaking, the USDA integrated two specifications that contractors certify compliance with several labor and work rules all through the time period of the proposed acquisition, as nicely as disclose selected adjudicated labor and employment regulation violations.

The labor and employment legal guidelines and Government Orders subject matter to the certification prerequisite are:

  • The Fair Labor Expectations Act

  • The Occupational Protection and Health Act

  • The Migrant and Seasonal Agricultural Staff Security Act

  • The Nationwide Labor Relations Act

  • The Davis-Bacon Act

  • The Service Deal Act

  • Government Buy 11246 (Equivalent Work Opportunity)

  • Section 503 of the Rehabilitation Act of 1973

  • The Vietnam Period Veterans’ Readjustment Assistance Act

  • The Family members and Professional medical Depart Act

  • Title VII of the Civil Rights Act of 1964

  • The People with Disabilities Act of 1990

  • The Age Discrimination in Employment Act of 1967

  • Executive Order 13658 of February 12, 2014 (Creating a Minimum amount Wage for Contractors)

  • Equal Point out legislation, as outlined by the Secretary of Labor in guidance

  • Govt Get 13627 (Strengthening Protections Against Trafficking in Persons in Federal Contracts)

The proposed laws would demand the USDA to include things like two clauses in just about every source and support acquisition — which includes building — earlier mentioned the simplified acquisition threshold.

Underneath the 1st clause, by accepting a agreement, the contractor must certify that it — and its subcontractors and suppliers — are in compliance with particular labor and employment rules, together with those earlier mentioned, and equivalent point out guidelines. Contractors and their subcontractors are also expected to immediately report to the contracting officer (CO) any foreseeable future adjudications of noncompliance. Significantly, the NPRM offers that the USDA will think about certification underneath this clause to be a certification for uses of the Wrong Promises Act.

Beneath the 2nd clause — “Past Effectiveness Labor Law Violations”— the contractor is needed in its bid to certify that it and all subcontractors, to the ideal of the offeror’s know-how and perception, are in compliance with all “previously demanded corrective actions” for “adjudicated” labor and work law “violations.” The proposed rule does not outline the quoted conditions and phrases. Prior to getting any award, the contractor have to supply a list of any these types of violations and will have an opportunity to disclose any methods taken to accurate the violations of, or enhance compliance with, this kind of labor and work legal guidelines. The contractor must update the CO every single 6 months on the violation and compliance information and facts provided in the bid.

The second proposed clause could guide to blacklisting of various government contractors with adjudicated violations.

The stated intent of the regulation is “to ascertain regardless of whether a contractor is a liable resource that has a satisfactory record of integrity and business ethics.” By disclosing earlier general performance labor law violations, the CO could determine if the bidding contractor has a satisfactory file of integrity and organization ethics and deny long term get the job done. The criteria or threshold of previous violations that would qualify a contractor as unsatisfactory are unclear.

As opposed to previous makes an attempt to move blacklisting regulations, the USDA’s proposed regulation is slightly extra calculated. Not like the Obama Administration’s Government Get 13673, for case in point, this regulation only considers adjudicated labor and employment regulation violations, as opposed to both alleged and adjudicated violations. EO 13673 was enjoined by a federal courtroom, and afterwards revoked by an Executive Purchase beneath President Donald Trump, and H.J. Resolution 37, which disapproved the Federal Acquisition Regulatory (Far) Council rules applying the Government Buy.

The remark interval deadline is at this time March 21, 2022, but marketplace stakeholders are urging the USDA to prolong the deadline one more 90 days to permit for productive and meaningful reviews. Really should the USDA adopt the proposed regulations in a final rule, there will be likely common outcome. Congress a short while ago introduced a $1.5 trillion paying deal, $25.125 billion of which is slated to go to agriculture and rural-associated businesses to deal with weather adjust, rural broadband initiatives, and equity systems aimed for underserved famers. All these initiatives will present myriad acquisition options for federal contractors.

The USDA’s proposed rulemaking could signal the starting of agency-amount efforts to impose blacklisting guidelines all through the federal federal government. The standing of likely blacklisting of federal contractors and subcontractors is developing quickly, and authorized troubles are predicted.


Jackson Lewis P.C. © 2022
Countrywide Law Critique, Volume XII, Amount 70