For the first time in 40 years, the Department of Labor (DOL) updated its interpretation and implementation of the Davis-Bacon and Related Acts in new final rules.
New Davis-Bacon and Related Acts Regulations to Expand DOL Authority
Changes and Challenges Relating to Affirmative Action Obligations Federal Contractors Face in 2023
The Office of Federal Contract Compliance Programs (OFCCP) has made several announcements, including Directives, Notices, and Proposals in their quest to embark on initiatives that significantly impact federal contractors’ affirmative action obligations.
DOE Office of Science Adds Diversity, Equity and Inclusion Requirement to Solicitation Process
The Department of Energy through the Office of Science has announced that beginning in FY 2023, all DOE funding solicitations, including the Office of Science Funding Opportunity Announcements (FOAs) and DOE National Lab Announcements, will require applicants to submit as an appendix to proposal narratives, a “Promoting Inclusive and Equitable Research (PIER) Plan.” The purpose of the PIER Plan is to “describe the activities and strategies applicants will incorporate to promote diversity, equity, inclusion and accessibility in their research projects.” According to the Office of Science’s announcement, the Office of Science will evaluate PIER Plans as “part of the merit review process,” and they “will be used to inform funding decisions.” Applications without PIER Plans will be considered “incomplete” and “will not be evaluated.”
Nondisplacement of Qualified Workers Under Service Contracts – Proposed Regulations Issued
As we wrote back in November 2021, the Biden Administration issued Executive Order 14055 reinstating most of the concepts from the Obama Administration era nondisplacement Executive Order 13495. Two months after Biden’s imposed deadline of May 2022, the U.S. Department of Labor finally published proposed regulations on July 15, 2022.
Generally speaking, EO 14055 and the proposed Nondisplacement regulations require successor contractors to make offers of employment to all predecessor contractor Service Contract Act covered employees who worked on the predecessor contract. Predecessor contractors are required to prepare and submit a list of their Service Contract Act covered employees to the contracting officer at least 30 days prior to contract termination. The contracting officer then provides a copy of that list to the successor contractor who then is required to make bona fide job offers to the predecessor’s service employees who worked on the prior contract. The rollout of these new regulations is of the utmost importance to any federal contractor or subcontractor with employees subject to the Service Contract Act.
AbilityOne Program Nonprofit Agencies Have Standing To Challenge Federal Agency Procurements That Violate Mandatory Provisions Of The JWOD Act
In a case of first impression, the U.S. Court of Appeals for the Federal Circuit recently ruled in SEKRI, Inc. v. U.S., No. 21-1936 (May 13, 2022), that a non-profit agency that was the sole mandatory source for a specific piece of military kit had standing to file a bid protest over a solicitation
Biden Executive Order Requires Project Labor Agreements on “Large-Scale Construction Projects”
On February 4, 2022, President Biden issued Executive Order 14063, requiring certain federal construction contractors and subcontractors “to negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”
The EO’s Project Labor Agreement (PLA) requirement applies to “large-scale construction projects,” defined to include domestic federal construction projects “for which the total estimated cost of the construction contract to the Federal Government is $35 million or more,” subject to adjustment based on inflation.
Fair Chance Act: Restricting Timing of Criminal History Inquiries Begins to Take Effect
When Congress enacted the National Defense Authorization Act for Fiscal Year 2020 in December 2019, Congress included the Fair Chance to Compete for Jobs Act of 2019 (the Act). The Act, in relevant part, restricts federal contractors from requesting criminal history information from certain job applicants until after the applicant has received a conditional offer
Georgia Court Blocks Federal Contractor Vaccine Mandate Nationwide
On December 7, 2021, the U.S. District for the Southern District of Georgia, in Georgia v. Biden, No. 1:21-cv-163, granted a preliminary injunction that temporarily stayed the Biden administration’s vaccine mandate for federal contractors and subcontractors “in any state or territory of the United States of America.” The case was initially brought by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The Associated Builders and Contractors (ABC), a national trade organization, intervened on the side of the plaintiffs. The seven states and ABC requested a preliminary injunction staying Executive Order (EO) 14042 and associated FAR clauses and Guidance, which require federal contractors and subcontractors to have their employees provide proof of vaccination in order to work on or in connection with federal contracts and also impose mask and social distancing requirements. The court granted the preliminary injunction and stayed the federal contractor vaccine mandate nationwide.
Kentucky Court Blocks Federal Contractor Vaccine Mandate
On November 30, 2021, the United States District Court for the Eastern District of Kentucky, in Kentucky v. Biden, et al., No. 3:21-cv-00055, granted a preliminary injunction limiting the enforcement of the federal vaccine mandate for some federal contractors and subcontractors. The preliminary injunction was requested by the Commonwealth of Kentucky, the State of Ohio, and the State of Tennessee. As a result, the court enjoined the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee” pending further briefing and a full resolution of the case on its merits.
Nondisplacement of Qualified Workers is Back, But With Changes
As predicted, another Obama Administration “oldie but goodie” has made a return in the Biden Administration. On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.” Many of the same concepts and requirements have returned, but there are also several notable changes.