On Wednesday, U.S. Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, unveiled a Committee report, taking direct regulatory aim at the nation’s federal government contractors.  The Senator proclaimed that “[s]ome of the nation’s largest federal contractors fail to pay their workers the wages they have earned or provide their employees with safe and healthy working conditions.”  The HELP Committee report, titled “Acting Responsibly? Federal Contractors Put Workers Lives and Livelihoods at Risk,” recommends significant changes to the federal contracting process to “ensure that taxpayer dollars are spent in a way that promotes compliance with federal law and improves the quality of life for working Americans.”

Among the report’s recommendations, the HELP Committee believes it is necessary to:

  • Increase the availability and transparency of the Department of Labor’s and General Services Administration’s information on workplace safety violations so that contracting officers can use it for responsibility determinations.
  • Require contracting officers to consult with, and obtain recommendations from, a designated official at the Department of Labor about contractors’ violations of federal labor law when making responsibility determinations.
  • Establish additional tools – beyond the existing responsibility determination and suspension and debarment process – that contracting officers, in consultation with the Department of Labor, can use to ensure that contractors comply with federal labor law.

If these recommendations come to bear, federal contractors will have yet another burden to meet and overcome in the pre-award process – and perhaps to retain contracts — as they will be required to defend their labor and employment practices as part of the responsibility determination. Not only can failure to comply with federal and state labor laws result in the denial of a contract, but perceived labor law violations asserted by third parties could also be a factor in whether a contract is awarded. As such, labor unions and activist groups might seek to take advantage of the opportunity to assert and present evidence of potential labor law violations to exert pressure on a federal contractor in furtherance of their own objectives vis-à-vis the contractor such as recognition of a union.

We encourage federal contractors to review the HELP Committee’s report to evaluate how it might affect them, including their strategy for handling any government investigations into any alleged labor law violations, and, if necessary, to evaluate their options for responding to the report and any future efforts to implement the HELP Committee’s recommendations.