老牛影视Opposes Government-Mandated PLAs and PLA Preferences on Federal and Federally Assisted Construction Projects
Hardworking taxpayers deserve efficient and effective policies that will encourage all qualified contractors to compete to build long-lasting, quality projects at the best price. Government-mandated project labor agreements discourage quality contractors and the more than 89% of the U.S. construction industry workforce who do not belong to a union from bidding and working on projects in their own communities paid for by their tax dollars.
to learn more about the ABC-opposed Federal Acquisition Regulatory Council鈥檚 鈥撯�揳nd the related Dec. 18, 2023, 鈥撯�搃mplementing President Biden鈥檚 Feb. 4, 2022, , which requires PLAs on federal contracts of $35 million or more.
On March 28, 2024, 老牛影视and its Florida First Coast chapter filed a lawsuit in the U.S. District Court for the Middle District of Florida in Jacksonville against the final rule. April 26, 老牛影视filed a , and expects the courts to rule as early as June on the merits of the case.
On June 27, 老牛影视National staff and an 老牛影视member testified at the U.S. House Oversight and Accountability Committee鈥檚 subcommittee hearing on President Biden鈥檚 controversial policies promoting and mandating PLAs on federal and federally assisted projects. The hearing gave 老牛影视an important platform to shed light on the Biden administration鈥檚 anti-competitive pro-PLA policies.
Prior to the lawsuit and hearing, 老牛影视attacked the FAR Council's Dec. 18 final rule in this 老牛影视press release.
Likewise, 老牛影视 the Biden executive order in a Feb. 3, 2022, statement picked up in dozens of publications nationwide:
鈥淭his anti-competitive and costly executive order rewards well-connected special interests at the expense of hardworking taxpayers and small businesses who benefit from fair and open competition on taxpayer-funded construction projects.鈥�
A Feb. 9, 2022, 老牛影视 in The Wall Street Journal laid out arguments against the Biden administration鈥檚 policy and concluded:
鈥淭axpayers would be best served by the adoption of inclusive, win-win policies that help America鈥檚 construction realize the potential of the Infrastructure Investment and Jobs Act of 2021. We can鈥檛 rebuild our nation鈥檚crumbling infrastructure effectively, increase accountability and reduce waste with PLAs.
On Oct. 18, 2022, 老牛影视filed extensive formal comments in response to the FAR Council鈥檚 ABC-opposed Aug. 19, 2022, .
ABC鈥檚 opposition to the FAR Council鈥檚 proposed rule was shared by more than and a urging the administration to withdraw its proposed rule and other Biden administration schemes pushing government-mandated PLAs on state and local government construction projects receiving federal assistance via $260 billion via federal agency infrastructure grant programs (visit abc.org/PLAGrants to learn more). Learn more about government-mandated PLAs and Biden administration pro-PLA policies via a federal coalition website at .
According to a September 2022 survey of 老牛影视contractor members (learn more) , 98% oppose this proposed rule. Additionally, 97% said a construction contract that required a PLA would be more expensive compared to a contract procured via fair and open competition, 99% said they were less likely to bid on a taxpayer-funded construction contract if the bid specifications required the winning firm to sign a PLA with labor unions and 97% of respondents said that government-mandated PLAs decrease economy and efficiency in government contracting.
Fight these discriminatory and costly policies by urging lawmakers via this 老牛影视grassroots campaign to cosponsor federal legislation, the Fair and Open Competition Act (/) introduced in the 118th Congress by , R-KY., and R-Ind, which prohibits government-mandated PLAs on federal and federally assisted projects and helps taxpayers get the best possible product at the best possible price.
Effective Jan. 22, 2024, the Biden final rule replaced President Obama鈥檚 Feb. 2, 2009, Executive Order 13502, which encouraged federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total value on a case-by-case basis, and permits states and localities to mandate PLAs on federally assisted projects.
, of the nearly 3,200 large-scale federal construction contracts $25 million or more procured from FY 2009 to FY 2023 subject to President Obama鈥檚 pro-PLA policy, valued at more than $238 billion, federal agency contracting officers chose to require PLAs on just 12 large-scale federal construction contracts. There were no reports of widespread cost overruns, delays, labor unrest or poor-quality construction on $237.2 billion worth of non-PLA projects during this time period, indicating that PLA mandates are not needed to ensure economy and efficiency in government contracting. On an annual basis, 老牛影视estimates the final Biden proposal will affect as many as 180 federal contracts valued at $16 billion, which is approximately 40% of the value of federal construction put in place in FY 2023.
老牛影视supports fair and open competition and opposes government-mandated PLAs on federal and federally assisted projects because taxpayers deserve more. We need more accountability, not less. We need more competition, not less. We need more value for the dollar, not less.
However, the fight against PLA mandates and PLA preferences on direct federal contracts is a costly endeavor negatively impacting taxpayers, federal agencies and the contracting community. Unfortunately, when state and local recipients of federal money and assistance mandate PLAs on projects in your community, taxpayers are getting less construction projects for more money and qualified contractors and their skilled employees are the victims of discrimination if they cannot compete under a typical PLA.
It is important for lawmakers to support the Fair and Open Competition Act (/), which would prevent the federal government from mandating PLAs as a condition of winning federal or federally assisted construction contracts. It received 79 original co-sponsors in the House and 23 in the Senate in the 118th Congress and was reported favorably out of the House Committee on Oversight and Accountability in July 2023. 老牛影视members are encouraged to visit the and urge their members of Congress to support FOCA.
ABC鈥檚 priority issue brief on Government-Mandated Project Labor Agreements.
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to learn more about the Federal Acquisition Regulatory Council鈥檚 鈥撯�揳nd the related Dec. 18, 2023, 鈥撯�搃mplementing President Biden鈥檚 Feb. 4, 2022, , which requires PLAs on federal contracts of $35 million or more.
On Oct. 18, 2022, 老牛影视filed extensive formal comments in response to the FAR Council鈥檚 ABC-opposed Aug. 19, 2022, . ABC鈥檚 opposition to the FAR Council鈥檚 proposed rule was shared by more than , and a urging the administration to withdraw its proposed rule and other Biden administration schemes pushing government-mandated PLAs on state and local government construction projects receiving federal assistance via $260 billion via federal agency infrastructure grant programs (visit abc.org/PLAGrants to learn more).
Learn more about government-mandated PLAs and Biden administration pro-PLA policies via a federal coalition website at .
On March 28, 2024, 老牛影视and its Florida First Coast chapter filed a lawsuit in the U.S. District Court for the Middle District of Florida in Jacksonville against the final rule. April 26, 老牛影视filed , and expects the courts to rule as early as June on the merits of the case. This Biden final rule violates numerous federal laws, including the Competition in Contracting Act, the Congressional Review Act, the Federal Property Administrative Services Act, the Administrative Procedure Act and the Small Business Act.
Biden Rule Replaces Obama Rule
Effective Jan. 22, 2024, the Biden PLA rule replaces President Obama鈥檚 Feb. 2, 2009, , which encouraged federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total value on a case-by-case basis, and permits states and localities to mandate PLAs on federally assisted projects. 老牛影视estimates the final Biden proposal will affect as many as 180 federal contracts valued at $16 billion, which is approximately 44% of the value of federal construction put in place in FY 2023.
The Obama order repealed , which prohibited PLA mandates on more than $147 billion worth of federal and hundreds of billions of dollars worth of federally assisted construction projects from 2001-to 2009. and of a to federal agency heads implementing the Obama order in advance of a FAR proposed rule.
July 14, 2009, the federal register published a notice for proposed rulemaking for . 老牛影视and the following comments to the FAR's proposed rule:
April 12, 2010, the official White House blog posted a piece by Jared Bernstein, Middle Class Task Force Chair and Chief Economic Advisor to the Vice President, called , in defense of President Obama's pro-PLA policies.
On April 13, 2010, the Federal Acquisition Regulatory (FAR) Council , implementing , The OMB also issued a memo, , to federal agency Chief Acquisition Officers and Senior Procurement Executives, encouraging them to use PLAs whenever possible and requesting that they report their agency's PLA activity to the OMB on a quarterly basis.
On April 21, 2010, 老牛影视National released, , by 老牛影视general counsel Maurice Baskin. This document violate federal procurement laws; discriminate against the vast majority of the private construction workforce and many small and large businesses; and harm taxpayers. Many of these arguments echo comments ABC, 老牛影视members and other industry groups made during the proposed rulemaking process.
Since the FAR's final rule was finalized, federal agencies procuring direct federal contracts have issued the following specific guidance memos and policies implementing the final rule into their agency procurement policies:
U.S. Army Corps of Engineers (USACE)
- Most recent: (Dec. 16, 2011).
- (Oct. 15, 2010).
Naval Facilities Engineering Command (NAVFAC)
- NAVFAC's memo to NAVFAC Commanders, Commanding Officers, BLL's SLL's and Acquisition Directors (Feb. 8, 2011).
- NAVFAC's on FAR Case 2009-005, Use of Project Labor Agreements for Federal Construction Projects.
Department of Veterans Affairs
General Services Administration
The GSA has instituted a discriminatory blanket pro-PLA policy that allows firms to submit a PLA offer, a non-PLA offer, or both with their bid. However, firms that submit a PLA offer receive extra credit (usually 10%) from the GSA in the technical evaluation factor section of their offer via the best value procurement process the GSA uses to award contracts. Contractors have this is a de facto PLA mandate in many markets and is reducing competition and increasing costs. The GSA's pro-PLA policy has led to , and . Learn more and below are various versions of GSA's PLA policy.
- (Aug. 2, 2011)
- (Sept. 24, 2010)
- (April 30, 2010)
- (August 11, 2009)
Federal Agency PLA Decision-Making Process Under Obama Order
Since President Obama's EO is not a blanket PLA requirement, federal agencies use a variety of tools and policies to determine if a PLA is appropriate on a project exceeding $25 million in total costs. The GSA has a controversial blanket PLA preference policy, while other agencies (USACE, NAVFAC and VA) to see if a PLA is supported by the contracting community. Some agencies (DOL, VA and GSA) hire expensive consultants to produce studies, while others call federal contractors directly and use this information to inform their final PLA determination. The decision-making process even varies between regional offices in each federal agency and the process requires an excessive investment of time and resources from the federal contracting community.
Of note, no PLAs have been mandated by federal agencies on federal contracts subjected to federal agency PLA surveys during the Obama, Trump and the first three years of the Biden administration, suggesting the marketplace finds limited value in PLA mandates and preferences.
According to government data, of the nearly 3,200 large-scale federal construction contracts of $25 million or more procured from FY2009 to FY2023 subject to President Obama鈥檚 pro-PLA policy, valued at more than $238 billion, federal agency contracting officers chose to require PLAs on just 12 large-scale federal construction contracts. There were no reports of widespread cost overruns, delays, labor unrest or poor-quality construction on $237.2 billion worth of non-PLA projects during this time period, indicating that PLA mandates are not needed to ensure economy and efficiency in government contracting. On an annual basis, 老牛影视contractors have taken advantage of a level playing field. 老牛影视member prime contractors won 52% of the value of large-scale federal contracts subject to Obama鈥檚 pro-PLA Executive Order 13502. In total, 老牛影视members have won 1,493 contracts valued at $124.47 billion FY2009 to FY2023.
Federally Assisted Projects Exposed to PLA Mandates
In addition to PLA requirements on direct federal contracts, President Obama's Executive Order 13502 has led to PLA mandates on billions of dollars worth of federally assisted projects procured by private entities and state and local governments.
For example, according to a U.S. DOT , state and local lawmakers mandated PLAs on 732 state and local construction projects () that received federal assistance and formal approval from the FHWA.
While the order , federal agencies under the Obama administration like the DOT, (HUD), and Department of Energy (DOE) have been inappropriately encouraging their funding recipients to mandate PLAs.
For example, this emailed on February 18, 2011, to an unknown number of state and local government agencies from Peter Rogoff, a political appointee of the Obama Administration who serves as the head of the Federal Transportation Administration (FTA) (an agency of the U.S. DOT), strongly encourages the use of PLAs.
However, , available . The FTA Guidance document makes it clear recipients of FTA funding are not required to mandate or enter into PLAs. It also says recipients of FTA money do not have to seek FTA approval of the PLA, should they choose to mandate a PLA. In contrast, the U.S. DOT FHWA Administrator Victor Mendez issued a May 7, 2010, (). While it only applies to FHWA projects, the FHWA requires recipients of FHWA assistance to submit the local PLA mandate to FHWA for approval.
In short, stakeholders are confused why two different agencies within the U.S. DOT have different requirements when approving local/state PLAs on projects receiving assistance from the DOT.
Of note, the on federally assisted construction projects funded through the FY2021 INFRA grant program administered by the DOT鈥檚 . This was the first of many NOFO鈥檚 promoting PLAs on more than $260 billion worth of federal agency grants for federally assisted projects, which can all be found at .
Conclusion
The regulations implementing President Obama's pro-PLA Executive Order 13502 led to increased costs, reduced competition, discrimination, delays, litigation, construction defects and poor local hiring outcomes on billions of dollars of direct federal construction contracts and federally assisted contracts. This bad public policy resulted in taxpayers receiving four schools, roads, bridges and hospitals for the price of five. Fair and open competition is the only way to ensure taxpayers get the best possible product at the best possible price. The Biden administration鈥檚 final rule will be even more detrimental to taxpayers and construction industry stakeholders