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CUPA-HR Submits Comments on “Blacklisting” Regulations

capitolhillOn August 26, CUPA-HR submitted joint comments with the Society for Human Resource Management (SHRM) in response to the government’s proposed “blacklisting” rule for federal government contractors, which was published in the Federal Register on May 28, 2015. The proposal would require federal contractors and those bidding on contracts to disclose, on a biannual basis, any actions where a state or federal agency alleges or a court or administrative agency finds the contractor or bidder or one of their subcontractors violated federal or state labor and employment laws within the last three years.

The rule applies to federal contracts valued at more than $500,000. If the contracting agency determines the contractor or bidder or its subcontractors have unsatisfactory compliance with these state or federal laws, it can bar or blacklist the contractor or bidder from working with the federal government. The rule was issued in response to President Obama’s Executive Order (EO) 13673 (also known as the “Fair Pay and Safe Workplaces EO”) and has two components — a proposed rule from the Federal Acquisition Regulation (FAR) Council and proposed guidance from the Department of Labor. In our comments, CUPA-HR draws upon the compliance expertise of our members and offers more feasible alternatives than the proposals offered by the FAR and DOL. (See an article with more of our initial concerns with the proposal here.)

CUPA-HR agrees with the overarching goal of the proposals — that federal contractors should comply with labor and employment laws. However, CUPA-HR suggests  in our comments that the proposals would impose unnecessary burdens and obligations across the entire federal contractor community when there is only a small minority of bad actors in the field — a fact President Obama acknowledged when he announced the Fair Pay and Safe Workplaces Executive Order. The comments also address issues found within the needlessly vague proposals which grant authority to those with little expertise and experience, provide far too little guidance to the contractor, and impose impractical and expensive requirements on subcontractors and contractors.

In addition, our comments highlight the issue that due process rights are being overlooked throughout the proposal and that the FAR Council has egregiously understated the associated costs. We argue that the proposals should be withdrawn pending a more complete and accurate assessment of implementation costs. Yet recognizing that the proposals have been produced in response to the framework set forth in the President’s Executive Order, our comments suggested alternatives that would make the proposals workable for those involved while at the same time meeting the goals set forth in the President’s agenda.

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