On July 15, 2015, eight members of Congress sent a letter to the U.S. Secretary of Labor and the Administrator for the Office of Federal Procurement Policy, requesting that the proposed guidance and regulations for the Fair Pay and Safe Workplaces Executive Order (the “Order”) be withdrawn. This letter comes just days after the Department of Labor (“DOL”) and the FAR Council announced a two-week extension of the notice and comment period for the proposed guidance and regulations. Our previous blog post on the proposed guidance and regulations can be found here.
The letter was written by eight Republican members of the House of Representatives (the “Members”), who chair several congressional committees and subcommittees. The Members are: John Kline – Chairman, Education and the Workforce Committee; Jason Chaffetz – Chairman, Committee on Oversight and Government Reform; Steve Chabot – Chairman, Committee on Small Business; Jim Jordan – Chairman, Subcommittee on Health Care, Benefits and Administration Rules, Committee on Oversight and Government Reform; Richard Hanna – Chairman, Subcommittee on Contracting and Workforce, Committee on Small Business; Phil Roe – Chairman, Subcommittee on Health, Employment, Labor, and Pensions, Education and the Workforce Committee; Cresent Hardy – Chairman, Subcommittee on Investigations, Oversight, and Regulations, Committee on Small Business; and Tim Walberg – Chairman, Subcommittee on Workforce Protections, Education and the Workforce Committee.
In the letter, the Members state that the proposed guidance and regulations will “delay an already cumbersome federal procurement process and will impose additional costs on employers, federal agencies, and American taxpayers.” They contend that the justification for the proposed guidance and regulations are based upon reports and studies “lacking empirical evidence” and neglect to acknowledge the government’s own failure to utilize its existing regulations to combat irresponsible contractors. To this effect, they point to the existing suspension and debarment system which they state is well-equipped to deal with irresponsible contactors, but which DOL has not used in several years.
The letter also discusses the impropriety of having a notice and comment period for incomplete guidance and regulations. Specifically, the Members point out that the proposed guidance and regulations addressing the equivalent state law violations that are covered by the Order will come at a later, undetermined date. Thus, the Congressmen believe that “all comments submitted prior to the publication of those proposals will lack complete information on which to provide comment.”
Finally, the letter discusses the impact the guidance and regulations will have on federal contractors. According to the Members, federal contractors “will have to develop and maintain costly systems to comply with these new burdens – raising the price of contracts – even if they have no violations to report.” Additionally, they argue that these new obligations will force smaller businesses to simply “drop out of the competition.”
If DOL and the FAR Council are unwilling to withdraw the proposed guidance and regulations, the Members alternatively request that they extend the notice and comment period for an additional 90 days “to ensure that interested parties have adequate time to review, assess, and provide meaningful input.” The Members have requested that DOL and the FAR Council make a decision on their request no later than July 29, 2015.