“Blacklist Provision” On Hold

Feb 22, 2017

The Obama Administration rules requiring contractors to report “violations” are now on hold.

An article in Federal Construction Contracting Blog by Edward DeLisle, discusses recent actions by both the Federal Court of Texas and Congress to put the enforcement of the Fair Play and Safe Workplace rules on hold.

President Obama issued an executive order that requires contractors bidding on federal projects to “disclose ‘violations’ of several labor statutes, which would then be considered by the Government in determining the contractor’s responsibility and, therefore, eligibility to receive a contract award.”

This rule has been vehemently opposed by the construction industry. It requires contractors to report violations when bidding on federal projects even if these violations are pending and have not been adjudicated. Prime contractors are required to report possible violations by their subcontractors. The rule has become known as the “blacklist” provision.

Contractors argue that this adds unreasonable additional expense and time to the bidding process and that it is unreasonable for prime contractors to, in effect, police the possible violations of their subcontractors.

Last year the Associated Builders and Contractors of SE Texas challenged the blacklist provision in court. The Federal District Court for the Eastern Division of Texas ruled in their favor and on Oct. 24, 2016, “issued an injunction preventing the implementation of the order from going forward.” Associated Builders and Contractors of SE Texas v. Anne Rung, Office of Federal Procurement Policy, U.S. Dist. Ct. of SE Texas, Civil Action No. 1:16-CV-425, Oct 24, 2016.

Recently, in a heretofore highly unusual action, the Republican-controlled House “passed a measure disapproving the Fair Play and Safe Workplaces.” If this bill is approved by the Senate and signed by the President, it will be among the first successful initiatives by the new administration to deregulate federal agencies.

In the meantime, the “blacklist provision” of the Fair Play and Safe Workplace rule is “on hold.”


Congress Strikes Blow to “Fair Play and Safe Workplaces”, Edward DeLisle, Federal Construction Contracting Blog, Feb. 13, 2017.