Proposed "Blacklisting" Regulations, September 1999
Should Federal Acquisition Regulations be changed so that allegations of "unsatisfactory"
business practices could "blacklist" companies from federal contracts?
Why it's important
On July 9th, the Clinton Administration issued proposed federal blacklisting regulations.
The proposed regulations would empower agency contracting officers to blacklist
(temporarily or permanently debar) federal contractors if there is "persuasive evidence"
of alleged "unsatisfactory" business practices regarding labor and employment laws,
including the National Labor Relations Act, OSHA, wage and hour, and employment
discrimination laws. The proposed regulations also include environment, tax, antitrust,
and "other consumer protections" as categories to determine if the bidder is a "responsible
In the 1970s and 1980s, organized labor pushed to create government blacklists as
part of overall Labor Law Reform, culminating in failed legislative attempts. In
the previous Congress, Senator Richard Durbin (D-IL) and Representative Lane Evans
(D-IL) sponsored blacklisting legislation that failed, and they have introduced
similar bills this Congress. Organized labor, however, is pressuring the Administration
to bypass the legislative process and issue blacklisting regulations through the
General Services Administration, DoD and NASA.
On February 18, 1999, Vice President Al Gore reaffirmed the Administration's commitment
to issue blacklisting regulations in remarks to the AFL-CIO Executive Council. According
to an AFL-CIO memorandum, under the Vice President's proposal "government will evaluate
whether a bidder for a government contract has a satisfactory record of labor relations
and other employment practices in determining whether or not the bidder is a 'responsible
contractor' eligible to receive a particular government contract." Key issues raised
by the proposal are:
All federal contractors, regardless of company or contract size, could be blacklisted.
The federal procurement system, which awards approximately $200 billion in federal
contracts per year, would be highly politicized and subject to coercive whims.
Procurement officials would have subjective power, akin to being judge and jury,
which is at odds with America's legal system.
NRCA opposes the Administration's blacklisting proposal because it would distort
the federal procurement process through allegations of "unsatisfactory" business
practices aimed against both union and open shop contractors. The potential for
mischief under such regulations against all federal contractors would be limitless.
Please see NRCA's comments, submitted
Nov. 2, 1999, to the General Services Administration.
The other side
Proponents of blacklisting regulations state that implementation will ensure that
government won't award contracts to companies that don't respect worker rights or
adopt sound workplace standards.