Federal Contractor "Blacklisting" Provision Resurfaces in Senate Bill, AGC Working To Remove It

The fiscal year 2018 National Defense Authorization Act includes a provision that would require contracting officers to consider violations of the Occupational Safety and Health Act (OSH Act) as part of the responsibility determination process prior to award of DoD contract. The provision ultimately gives contracting officers the ability to debar a construction contractor on a contract-by-contract basis with little cause. Prime contractors will also be responsible for evaluating violations of subcontractors at all tiers. AGC’s regulatory counsel authored an article earlier this year on the full impact of the provision.

The provision is substantially similar to President Obama’s Fair Pay and Safe Workplaces Executive Order that Congress repealed earlier this year by using the Congressional Review Act. While the new provision in the NDAA targets only one labor law, the OSH Act, it remains substantially similar to the executive order and AGC strongly opposes it for many of the same reasons. The provision is unnecessary; there is no significant evidence that labor violations by federal contractors is widespread and the federal government already has the ability to suspend and debar bad actors in the event a violation occurs.

A legislative attempt to strip the language from the Senate bill has been offered by Senator Jim Inhofe. While the amendment is unlikely to be included prior to the larger bill, the NDAA, passing the Senate, it still must be reconciled with a House version that passed earlier this year and did not include any blacklisting like language. AGC will be working with Congressional leaders to remove the blacklisting language from the final bill.

For more information, contact Jim Young at youngj@agc.org or (202) 547-0133.