The Associated Builders & Contractors and Associated General Contractors of America have been among the most vocal “Fair Pay and Safe Workplaces” critics since President Obama added it to his expansive executive order roster in June 2014. Response to the Labor Department and Federal Acquisition Regulatory Council announcement of a final rule implementing the order show neither group changing its tune.
“Federal Acquisition Regulatory’s flawed blacklisting final rule will create a murky and needlessly subjective procurement process that will result in fewer qualified and responsible contractors bidding on federal contracts,” says ABC Vice President of Regulatory, Labor & State Affairs Ben Brubeck. “Upon initial review, it appears that rather than working toward improving the federal government’s existing suspension and debarment system, the administration has finalized a proposal that is duplicative and cumbersome and will result in less competition for taxpayer-funded contracts. The final rule fails to address key concerns raised by ABC and other stakeholders during the comment period that would boost small business participation and promote awarding contracts based on merit to responsible firms that can deliver the highest quality product at the best price.
“ABC supports a level and transparent playing field for federal contractors and believes unethical firms should be held accountable. Our initial concerns regarding the proposal’s stripping of due process rights while also adding unwarranted uncertainty by empowering bureaucrats to subjectively pick winners and losers in the federal contracting marketplace remain.”
“This new Obama administration rule is a step in the wrong direction when it comes to weeding out the very few unfair and unscrupulous federal contractors,” adds AGC CEO Stephen Sandherr. “In addition to the already substantial consequences firms currently face, this new measure permits unelected federal bureaucrats to make arbitrary decisions about which other firms will be singled out for punishment. Even worse, this new rule gives those same federal officials broad latitude to impose separate and inconsistent consequences on those firms.
“While there are many flaws with this new measure, one of its biggest is that it gives federal officials enormous discretion to decide which firms should be singled out for punishment. For example, it allows a federal contracting official to give greater weight to the same safety violations depending on which firm was accused of committing them. Such subjective criteria opens the door to punishing federal contractors based on which political, social or labor causes they support, instead of their safety performance or treatment of workers.”
“This new rule will make it extremely difficult for many firms, particularly smaller ones, to continue working with the federal government,” Sandherr explains. “While all federal contractors will face difficulties finding ways to deal with the added new compliance and risk costs, smaller firms especially will likely decide the risks far outweigh the reward. As a result, an administration that frequently claims to champion the cause of smaller business will have yet again made it difficult for them to perform federal work.”
“Few other organizations have fought harder, for longer, or more successfully than the Associated General Contractors of America to make sure honest firms aren’t forced to compete with bad firms,” assures Sandherr. “The last thing any of our members want is to compete against a firm that cuts corners on safety or fails to properly compensate hard working craft people. Needless to say, we will explore all possible legislative and legal measures for undoing this deeply troubling and unnecessary new federal mandate.”
ABC will likewise “continue to explore every available avenue, including the judicial system, to protect taxpayers, contractors and their employees, whose livelihoods rely on a fair procurement system, from this overreaching policy,” Brubeck concludes.
NEW OSHA CONSTRUCTION DIRECTORATE NAMED
Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels has appointed Dean McKenzie head of the Occupational Safety and Health Administration Directorate of Construction. McKenzie served as director of OSHA’s Office of Construction Services from 2012-2013, then became the deputy director in 2013, and has been the acting director since January 2016.
With more than 40 years in construction, OSHA officials note, McKenzie has an exceptional understanding of safety and health issues facing the industry. He started out as journeyman millwright in the steel mills of Gary, Ind., and proceeded to construction work in Indiana, Florida, Colorado and the Caribbean. McKenzie has been a licensed general contractor, business owner, and project and operations manager. In seven years at OSHA, he has addressed fatalities in the communication tower industry; fostered a strong relationship with the Advisory Committee on Occupational Safety and Health; and, taken a lead role in the Stand Down to Prevent Falls in Construction campaign.