USDA Scraps Plans for Contractor Blacklisting Provisions
The U.S. Department of Agriculture has scrapped controversial blacklisting provisions targeting federal contractors in a proposed rule published in the Federal Register.
Specific to the USDA’s procurement policies, the proposed rule was halted in response to Associated Builders and Contractors' and federal contractor opposition.
“The USDA’s decision to drop unnecessary and duplicative blacklisting provisions harming federal contractors is a victory for the rule of law and federal contracting stakeholders,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC and the federal contracting community held the USDA accountable for proposing to circumvent the courts and Congress and are pleased this issue appears to be resolved.”
ABC supports a level and transparent playing field for federal contractors and believes unethical firms should be held accountable.
Bad actors who facilitate inequities in the federal procurement process are a detriment to taxpayers, contractors, and employees whose livelihoods rely on a fair contracting marketplace.
The association members believed the USDA’s proposal was overbroad, arbitrary and capricious, and violated the statutory and constitutional rights of responsible, ethical contractors.
Comments on the new proposed rule will be submitted by the Aug. 26 deadline supporting the USDA’s decision to abandon the blacklisting provisions.
Discussion of the rule began on Feb. 17, 2022, when the USDA published the proposed rule to make amendments to the Agriculture Acquisition Regulation, which included new labor law compliance certifications and reporting provisions that presented wide-ranging implications for ABC members that perform work on federal contracts awarded under the AGAR.
By March 21, ABC leadership submitted comments urging the USDA to withdraw the proposal.
“The proposal would insert a clause requiring contractors to certify compliance with 15 different labor laws and their state law equivalents, as well as certify the compliance of any subcontractors and suppliers,” the 2022 ABC statement said. “The proposed rule would also insert a clause requiring contractors to certify that they and any subcontractors comply with previously required corrective actions for adjudicated labor law violations and provide a list of specific violations to a contracting officer.”
ABC’s comments further said the USDA’s 2022 proposed rule was substantially the same as the U.S. Department of Labor’s so-called “blacklisting rule” which was approved as part of implementation of President Barack Obama’s Fair Pay and Safe Workplaces Executive Order 13673.
As with the USDA proposal, ABC lobbied against the rule in 2016. A U.S. District Court judge blocked implementation of the law in October 2016.
The court ruled in favor of ABC’s lawsuit and granted a preliminary injunction, after finding that very similar certification and disclosure requirements in the FAR rules conflicted with the labor statutes themselves; were arbitrary and capricious; and violated contractors’ constitutional rights. Subsequently, Congress voted to disapprove the FAR’s blacklisting rule under the Congressional Review Act, signed into law by President Donald Trump.
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