In response to several requests from industry to extend the a 60-day comment period for the proposed rulemaking (NPRM) and guidance implementing the “Fair Pay and Safe Workplaces Executive Order,” the FAR Council and the DoL have extended the comment period to August 11, 2015 (from the current date of July 27, 2015). As discussed
Fair Pay and Safe Workplaces Executive Order
Obama Administration Issues Proposed Rule and Guidance for Implementing “Fair Pay and Safe Workplaces”
On May 28, 2015, the Obama Administration published the highly-anticipated Proposed Rule and Proposed Guidance implementing the “Fair Pay and Safe Workplaces” Executive Order, (E.O.) which President Obama issued on July 31, 2014. The proposed rule adds a new subpart to the Federal Acquisition Regulations (FAR) – subpart 22.20 “Fair Pay and Safe Workplaces” – which “incorporate[s]” proposed guidance issued by the Department of Labor (DOL) titled “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces.’ ” (“Proposed Guidance”). These regulations will not take effect until the final rule and final guidance are issued, but the proposed rule and guidance trigger a 60-day period to comment on the proposed rule and guidance, and offer insight into the onerous compliance and reporting burdens that contractors and subcontractors will face under the Proposed Rule. Below is a summary of several key provisions.
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“Fair Pay and Safe Workplaces Executive Order” Increases Focus on Contractor Compliance With Labor Laws
On July 31, 2014, the Obama Administration issued a new Executive Order targeting contractor compliance with Federal labor laws. While the order, dubbed the “Fair Pay and Safe Workplaces Executive Order,” aims to create several new obligations for contractors and subcontractors doing business with the Federal government. In the coming months, the FAR Council and several other agencies will be preparing and issuing guidance and regulations to implement the substantive provisions of the Executive Order, which are summarized below. Notably, while the Executive Order itself does not create any substantive obligations now — i.e., in advance of issuance of regulations and guidance — it does set the stage for the FAR Council and agencies to issue guidance and regulations implementing the Order’s provisions.
Prior to Award. Contractors bidding on procurement contracts in excess of $500,000 would be required to “represent, to the best of the [their] knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment” rendered against the contractor within the preceding 3-year period for violations of a slew of labor laws (including the FLSA, Service Contract Act, Davis-Bacon, ADA, ADEA, FMLA, NLRA, OSHA, Title VII of the Civil Rights Act and others, as well as equivalent State laws). This information would be factored into the Contracting Officer’s (“CO’s”) responsibility determination (i.e., “whether an offeror is a responsible source that has a satisfactory record of integrity and business ethics”). In addition, contractors would be required to disclose similar information for subcontractors on subcontracts (other than commercially available off-the-shelf items) valued over $500,000, and would be required to include provisions in their subcontracts requiring subcontractors to disclose and update such information.
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