Yesterday, President Trump signed a joint resolution of disapproval under the Congressional Review Act (CRA) blocking the rule implementing President Obama’s Executive Order 13673 – “Fair Pay and Safe Workplaces” or as it is commonly known, the “Blacklisting Rule” – effectively killing it in its entirety.
As a reminder, under some of its more onerous elements, E.O. 13673, which was issued on July 31, 2014, would have required that companies bidding on federal contracts valued at over $500,000 would have had to indicate at the initial bid submission stage whether they had had any “administrative merits determinations, arbitral awards or decisions, or civil judgments” rendered against them during the preceding three-years for violations of specified federal labor and employment laws and/or their “equivalent state laws.” The information disclosed would then have been used by contracting officers, in consultation with an agency’s “labor compliance advisor,” (“ALCA”) to determine whether the bidder had a satisfactory record of integrity and business ethics to obtain the federal contract being sought. It also required contractors to provide employees with specific information regarding exempt status and overtime on their paychecks, required specific notices to independent contractors, and prohibited pre-dispute arbitration agreements.
In October 2016, a federal court in Texas temporarily blocked the “blacklisting” elements of the EO but not the other requirements, which would have arguably still placed significant administrative obligations on federal contractors. The resolution of disapproval (H.J. Res. 37) passed by both Houses of Congress and which was signed by the President yesterday states as follows:
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation (published at 81 Fed. Reg. 58562 (August 25, 2016)), and such rule shall have no force or effect."
Under the CRA, any rule set aside by this mechanism cannot be “reissued in substantially the same form.” Thus, President Trump’s signature yesterday effectively killed E.O. 13673.
Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.