On August 26, 2015, the Section of Public Contract Law of the American Bar Association (“ABA”) submitted public comments to the General Services Administration (“GSA”) and the U.S. Department of Labor (“DOL”) on their proposed regulations and guidance implementing the Fair Pay and Safe Workplaces Executive Order (the “Order”).

In its eighteen-page letter, the ABA raises a number of concerns regarding the manner in which the agencies have approached the Order and the notice and comment process for their implementing rules.  Specifically, the ABA contends that the agencies have engaged in a rushed process that does not adequately take into account the costs and implications of their proposals.  The ABA requests that the “FAR Counsel and DoL address implementation of the Executive Order in a deliberate fashion that is neither rushed nor incomplete.”

Because the Order is expected to have a significant impact on the government contractor community, the ABA is advocating for more proactive involvement of the relevant stakeholders.  The ABA notes that there “have not been any public meetings on the Proposed Rule and Proposed Guidance, but only meetings for specific invited groups of attendees, in addition to the current notice and comment period.”  The ABA notes that there are “no urgent and compelling circumstances that warrant rushing implementation of this complex regulatory scheme and risking unforeseen impacts that, in the end, could do harm to the very individuals the Proposed Rules and Proposed Guidance were intending to protect and impose significant incremental costs on the procurement process.”

The ABA points out a number of deficiencies in the proposed guidance and regulations it attributes to the rushed process, including the failure to adequately address:  (1) the implementation of the retroactive reporting requirements; (2) reporting related to procurement and contracts which are classified; and (3) the impact on small business and commercial item contracting.

Additionally, the ABA advocates for a phased implementation of the final guidance and regulations “in order to allow the industry, at all levels, to become familiar with the applicable requirements.”

The ABA’s comments come on the heels of extensive criticism surrounding the Order’s implementing regulations.  DOL and the FAR Council twice extended the notice and comment period for the proposed guidance and regulations (related posts can be found here and here), which expired on August 26, 2015.

Members of both the U.S. House of Representatives and the U.S. Senate have been highly critical of the proposed guidance and regulations.  On July 15, 2015, eight members of Congress requested  that DOL and the FAR Council withdraw the proposed guidance and regulations, or in the alternative provide an additional 90 days for notice and comment “to ensure that interested parties have adequate time to review, assess, and provide meaningful input.”  Then, on August 6, 2015, four Republican Senators wrote a letter to DOL and the FAR Council urging them to withdraw the proposed regulations and guidance immediately.  Senators Ron Johnson, Lamar Alexander, James Lankford, and Johnny Isakson stated that “DOL’s proposed guidance was intentionally published before it was completed, leaving significant issues unresolved – including which state laws will be covered by the guidance, and whether prime contractors will be required to facilitate subcontractor reporting.”  According to the Senators, the open issues, once addressed, could “significantly increase the compliance costs and administrative burdens” of the final rule and, thus, it is “not possible for federal contractors to provide useful feedback without this critical information.”

We will continue to monitor the rulemaking process and provide updates as they become available.