First Steps In Implementation Of Fair Pay And Safe Workplaces Executive Order Are Underway

On March 5, 2015, the U.S. Department of Labor (DOL) and the Office of Management and Budget (OMB) issued a joint memorandum to the heads of executive departments and agencies. The joint memorandum directed agencies to start hiring Labor Compliance Advisors (LCA’s) as the first step in a much larger process of implementing EO 13673, Fair Pay and Safe Workplaces.

EO 13673 requires federal contractors responding to solicitations valued at more than $500,000 to disclose to contracting officers all administrative merits determinations, arbitral awards, or civil judgments in labor or employment matters. Subcontractors are also required to make similar disclosures to prime contractors, who then turn the disclosed information over to the contracting officer. Agency contracting officers, with the assistance of LCA’s, are then required to use the disclosed labor and employment information to make responsibility determinations for the contractors and subcontractors.

The LCA’s are supposed to provide contracting officers with technical support to evaluate the disclosed labor and employment information and assist the contracting officer with responsibility determinations. The new memorandum suggests that the DOL will have continuing contact and coordination with agency LCA’s. In other words, this appears to be a way for the DOL to exert some degree of influence over the contracting decisions of every federal agency.

As part of the implementation of EO 13673, three things were expected to happen. First, the agencies must hire LCA’s. Second, the DOL is expected to promulgate regulations providing guidance on what kinds of employment and labor matters need to be disclosed and, potentially, how LCA’s should weigh that information when making responsibility determinations. Finally, the FAR Council is expected to issue implementing regulations for EO 13673 for contracting officers and LCA’s to apply. The recent DOL/OMB memorandum instructs agencies to hire their LCA’s within ninety (90) days. This suggests that both the DOL guidance regulations and the FAR Council implementing regulations are imminent.  Stay tuned . . .