Monday, August 31, 2015

Fair Pay and Safe Workplaces - Public Comments to Proposed Rule

Last May, the FAR Councils issued a proposed rule to implement the President's Fair Pay and Safe Workplaces Executive Order (EO) from July 31, 2014. The new rules will require prospective contractors to report every time they submit proposals, whether they have had any violations of any of 14 federal labor statutes in the preceding three years. When we last reported on the proposed regulation (see Fair Pay and Safe Workplaces dated June 3, 2015), we made a prediction that there would be plenty of public comments to the proposed regulation. Sure enough, the second extension to the public comment period ended on August 26, 2015 and there were a total of 918 public comments submitted. We pity the folks that will now have to sort through, categorize, and respond to these comments - its going to be a herculean task. (If you care to peruse them yourself, you can find them on-line here)

Over the next few postings, we intend to find a few of the substantive comments submitted by contractor organizations, employee organizations, and watchdog groups to assess the level of support for the regulations. We will start with comments submitted by the Project on Government Oversight (POGO). POGO counts itself as a nonpartisan independent watchdog that champions good government reforms. The Organization investigates allegations of corruption, misconduct, and conflicts of interest in hopes of achieving a more effective, accountable, open, and ethical federal government. POGO is well-known and carries a lot of influence in DC.

POGO supports the proposed rule. "To determine whether companies have a satisfactory record of integrity and business ethics as the FAR requires ... it is necessary for contracting officers to have information about the condition of companies' workplaces and how their workers are treated." But POGO also made a number of recommendations to "strengthen" the rule. One of those recommendations would have contractors disclose "settled" cases. POGO states:
According to the proposed Department of Labor guidance, a private settlement in which the lawsuit is dismissed without any judgment being entered is not considered a "civil judgment" that triggers disclosure. This will substantially weaken the final rule, as legal actions against companies often settle without a formal judgment by a court or tribunal. Nearly half of the thousands of civil, criminal, and administrative instances in POGO's Federal Contract Misconduct Database were settled without a final judgment or finding of liability. Contractors, especially those with substantial financial and legal resources at their disposal, will evade disclosure by settling labor cases before a judgment is entered.
Other notable recommendations from POGO include:

  • Make the information available to the public.
  • Increase the disclosure period from three years to five years prior to proposal submission.

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