Tuesday, June 14, 2016

Possible Exemption for DoD Contractors from the Fair Pay and Safe Workplace Executive Order

The President's Fair Pay and Safe Workplace Executive Order 13673 has, to say the least, been very controversial, not for what it tries to achieve, but for the extreme record-keeping and reporting burden it places on businesses doing work for the Government. One of the recurring criticisms is its application to all contractors including those who have never had issues with of violations of pay and safety regulations. The implementing regulations by themselves are extensive. The Department of Labor's is 103 pages. The FAR Council's draft is 131 pages on top of Labor's. Other Agencies of the Federal Government have their own.See our post from last March, Fair Pay and Safe Workplaces with links to other postings on our coverage of the subject.

The 2017 NDAA (National Defense Authorization Act) is attempting to overturn much of this Executive Order. There is a provision in both the Senate and House versions of the 2017 NDAA that will exempt most Defense contractors from the provisions of the Executive Order and its implementing regulations. One could probably call this NDAA provision "contentious" because the President has already threatened a veto of the NDAA if it remains.

Specifically, Section 829H of the Senate Version states:

(a) LIMITATION.—The Secretary of Defense shall apply any acquisition regulations promulgated pursuant to Executive Order 13673 or any successor executive order only to contractors or subcontractors who have been suspended or debarred as a result of a Federal labor law violations covered by Executive Order 13673.
(b) COMPLIANCE REQUIREMENTS.—The Secretary shall ensure that Department of Defense contractors or subcontractors who are not described under subsection (a) are not compelled or required to comply with the conditions for contracting eligibility as stated in any acquisition regulations promulgated to implement Executive Order 13673.
Based on this provision, only contractors (and subcontractors) that have been suspended or debarred as a result of a Federal labor law violation will be required to comply with any acquisition regulations promulgated as a result of the Fair Pay and Safe Workplaces Executive Order.

We wonder whether any contractor has been suspended or debarred as a result of Federal labor law violations. There can't be many.

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