Update on Fair Pay and Safe Workplace Regulations Implementation

Since
the initial FS Client Alert on the final Federal Acquisition Regulation (FAR)
rule and the Department of Labor (DOL) guidance implementing the Executive
Order on Fair Pay and Safe Workplaces (final rule), FS attorneys have learned
some important information on how the final rule will be implemented.  

Current
implementation of the final rule is being phased in starting on October 25,
2016.  At that point, the actual or prospective
contractors or subcontractors (herein “Contractor”) proposing on new
procurements of $50 million or more are required to make disclosures regarding
fourteen identified Federal labor and employment laws, and state approved
occupational safety and health plans.  The
Agency Labor Compliance Advisor (ALCA) receiving the disclosures is required to
place this disclosure information into an “assessment case file” that will
reside in the ALCA Hub being established. 
It is currently anticipated that the Contracting Officer (CO) will only be
provided access to the ALCA’s recommendation and identified basis for that
recommendation.  The CO will not have
access to the underlying disclosure information in the ALCA Hub.

  • The
    CO involved in the particular procurement will assess the ALCA recommendation
    to determine whether action is appropriate and, if so, what that action will
    be.  While the disclosures will be
    publicly available, the Contractor may request protection from public
    disclosure of its explanatory or mitigating information.  There is reason to believe that the
    underlying ALCA assessment made during a procurement may be considered
    predecisional and exempt from public disclosure. 

Starting
on September 12, 2016, a Contractor can request a preassessment of its
violations.  The Contractor seeking the
preassessment will disclose its violations and may also provide explanatory or
mitigating information.  The Contractor may
request protection from public disclosure of its explanatory or mitigating
information.  However, what is not clear
is whether the information submitted to DOL as part of the preassessment
process can be accessed and used by enforcement agencies and ALCAs outside of
the preassessment process. 

  • In
    contrast to where disclosures are made and assessment decisions are rendered by
    the CO during the procurement, the preassessment decision will be made by DOL,
    or the enforcement agency.  There is
    concern that the written decision may not be protected from public disclosure as
    it is not part of a predecisional deliberative process in a specific procurement.

Although
the prime contractor can rely on a subcontractor’s representations regarding
its Labor Law violations in making its responsibility determination, the
Government is encouraging the prime to refer the subcontractor to the
appropriate enforcement agency if the prime believes there is a responsibility
problem.

The
DoD has appointed its own ALCA.  That
ALCA is appointing ALCA representatives for each DoD procurement activity.  The ALCA representative will be responsible
for collecting the disclosure information from Contractors, for entering it
into the ALCA Hub and for using DOL guidance to perform the initial assessment
of whether to recommend one of following possible dispositions:

  1.     
    No
    issue-Contractor has a satisfactory record of responsibility.
  2.     
    Issue-Action
    is required before proceeding with an award decision.
  3.     
    Issue-Contractor
    must commit to negotiation of LCA before the CO can proceed with an award.
  4.     
    Issue-Contractor
    must complete the LCA as a condition of an award.

 Where
the ALCA representative finds an issue, the matter is referred to the ALCA with
the ALCA representative’s recommendations. 
The ALCA will review and forward his recommendation to the CO for final
review and decision.  Where the CO
decides to dispose of the matter per item 4, the matter must be referred to the
responsible agency Suspension Debarment Official for further consideration.

For
Paycheck Transparency, Contractor systems will likely require updating to
enable them to report on the required information. 

A
formal request to delay implementation of the final rule has been submitted to
the Office of Federal Procurement Policy by the Council of Defense and Space
Industry Associations (CODSIA) because of the limited time available to collect
information and get systems in place that can comply with the requirements.  [link to letter] Other questions about
possible postponement of all or a portion of the rule have also been
raised. 

DOL
has established a portal for contractors to
submit questions on FPSW implementation and it is working with the Defense
Acquisition University to prepare web-based training for Federal officials on
implementation of the FPSW.  

The
final rule is a convergence of Federal labor and employment laws and guidance
and Federal government contracting rules. 
Understanding how these laws and regulations intersect and apply may not
be crystal clear.  If you have specific
questions about whether you are covered by the new rule and its implementation
requirements, contact your FortneyScott attorney.