Key Steps to Prepare for Expected Federal Blacklisting Rules

The proposed Federal Acquisition
Regulation (“FAR”) rule on Fair Pay and Safe Workplaces (“FPSW,” referred to as
the “Blacklisting rule”) seeks to prevent companies that violate Federal and
comparable state labor laws from doing business with the federal government.  (Fact
Sheet, Fair Pay and Safe Workplaces Executive Order.
)  It is expected that the rule and implementing
Department of Labor (“DOL”) guidance will be issued soon.  In the new regulations, the definition of
“violations” is very broad and failure to properly address “violations” could
result in the contractor/subcontractor being determined to be
“non-responsible.”  

To ensure compliance, contractors
need to collect new and different information for themselves and their
subcontractors.  Below are some key steps
to prepare for compliance with these new Blacklisting rules:

1.                  
Identify your government contracts or
subcontracts.

2.                  
Determine whether you currently track and
maintain information relating to “violations” of 14 Federal and comparable State
labor laws (to be identified) covered by the FPSW.

3.                  
Locate the company’s repositories of information
on these violations.  (Note: In many
companies, this information is not maintained on a single system, but instead
is retained in hard copy, in files, in multiple business units and locations, or
on multiple electronic systems.)   

4.                  
Collect any information on “violations” within
the past three years, including information on the “violations,” including any
dispositions, settlements or other agreements relating to the “violations.” 

5.                  
Review and work with counsel to appropriately
respond to any proposed or issued government contract past performance ratings issued
under the Contractor Performance Assessment Reporting System (“CPARS”).  FAR Part 42.15.  These may highlight labor law concerns that
could be considered reportable “violations.”

6.                  
Work with counsel to analyze the information on
“violations” and past performance ratings to determine whether they pose the
risk that you would be determined to have “serious,” “repeated,” or “willful”
violations affecting your present responsibility to receive a government
contract or subcontract award, or option exercise.

7.                  
Work with counsel to address such risks, such as
through the negotiation of an appropriate disposition to mitigate the risk of
being determined “non-responsible.”

A contractor’s failure to accurately identify and address
these labor law matters for itself and its subcontractors could result in the loss
of a procurement, the nonrenewal of a government contract or subcontract, false
claims, and even bid protests by your competitors.  Contact counsel to discuss your corporate compliance
and how you may avoid some of the more serious pitfalls.   

Click here for a brief overview provided by Jacqueline Scott and Susan Warshaw Ebner on the Blacklisting regulations.