Construction industry advocates of fair and open competition in public contracting have defied a difficult political environment and economy to create more opportunities for qualified merit shop contractors and their skilled employees.
President Obama’s Feb. 6, 2009, Executive Order 13502 encouraging federal agencies to mandate project labor agreements (PLAs) on federal construction projects exceeding $25 million in total cost opened the door to billions of dollars worth of federal construction contracts being steered primarily to unionized contractors and their all-union workforces. This came at the expense of taxpayers and the experienced men and women employed by merit shop contractors who deliver projects safely, on time and on budget every day.
In response, Associated Builders and Contractors (ABC
) and proponents of fair and open competition mobilized an aggressive campaign of effective legislative, legal and public relations strategies to restrict the devastating impact of anti-competitive and costly government-mandated PLAs on federal, state and local public works projects. The campaign is producing impressive results.
In the 112th Congress, ABC educated lawmakers about the impact of discriminatory PLA mandates and preferences, and promoted commonsense legislation restoring a level playing field in federal contracting. For example, the Government Neutrality in Contracting Act (H.R. 735/S. 119), which prohibits federal agencies from requiring or prohibiting contractors to execute PLAs as a condition of winning a federal construction contract, has a record 177 cosponsors in the House and 31 cosponsors in the Senate. House Oversight and Government Reform subcommittees have held multiple hearings exploring PLA mandates and H.R. 735.
The House voted five times on amendments restricting PLA mandates on various bills funding and authorizing federal construction projects. On May 17, by a bipartisan vote of 211 to 209, the House passed an amendment, offered by Rep. Roscoe Bartlett (R-Md.) and cosponsored by Rep. Jeff Flake (R-Ariz.), to the National Defense Authorization Act (NDAA) for Fiscal Year 2013 (H.R. 4310) that prohibits federal agencies from mandating PLAs and PLA preferences on federal construction contracts authorized by the NDAA. This milestone marked the first time Congress has passed legislation restoring neutrality in government contracting, as previous votes in the 112th Congress failed by razor-thin margins. (As of late June, it remained unclear if this provision or the NDAA would become law.)
Legal tactics have proven equally effective. Federal contractors, with the support of ABC, have filed five Government Accountability Office (GAO
) bid protests against PLAs mandated by federal agencies on federal construction projects. In each instance, federal agencies abandoned the PLA mandates after GAO officials suggested they violate federal contracting laws in specific circumstances. The latest victory against a U.S. Department of Labor (DOL
) PLA mandate on a DOL Job Corps Center in Manchester, N.H., was the DOL’s second failed attempt to mandate a PLA on the project.
ABC also helped merit shop contractors respond to more than 75 surveys issued by federal agencies to determine if a PLA is appropriate for a federal project. The robust response must be sustained, as it has produced more work for merit shop contractors.
The Office of Management and Budget (OMB
) recently responded to a Freedom of Information Act request filed by ABC regarding data about the frequency of federal PLA mandates. The OMB indicated federal agencies have enacted no PLA mandates through the end of FY 2011. To date, ABC is aware of only a handful of successful PLA mandates and preferences on federal contracts.
In support of these successful legislative and legal strategies, ABC launched an aggressive communications and grassroots campaign to educate federal agency procurement officials, lawmakers, industry stakeholders, the media and taxpayers about the harmful effects of special interest PLA schemes.
ABC’s advocacy has prevented the expansion of Executive Order 13502 onto federal projects costing less than $25 million, as well as thwarted a push for PLA mandates on private, state and local projects receiving federal assistance. In 2011 and 2012, 10 states responded to the threat of costly federal mandates by passing measures restricting PLA mandates to some degree on state, local and state-assisted projects, bringing the total number of states to enact such measures to 14. Dozens of communities across the country also have enacted similar rules for public works contracting.
The merit shop contracting community has proven resilient in the face of political and economic adversity, and industry members must continue this fight. The upcoming elections in November could provide relief, or test the mettle for another four years.