CONTRACTOR BLACKLISTING STILL A POSSIBILITY
A recent report from the Acquisition Innovation Research Center (AIRC) shows that contractors should continue to pay attention to legislation and other efforts to suspend or debar contractors for repeated labor law violations. The authors of the report note multiple difficulties in actually implementing such a policy, such as the exclusion of mission critical companies from the federal supply chain and the ability of contracting officials to assess whether violations are “willful” or are relevant to determinations of a company’s current responsibility. The authors point out that even the GAO could not determine whether reported violations were willful or even tied to a company’s government contract work. Regardless, there continues to be a cadre of legislators and regulators who believe that either an automatic statutory or regulatory suspension or debarment of such contractors is critical to ensuring that the government does business with good corporate actors. Long-time contractor officials may recall that this issue dates back to the end of the Clinton Administration, when a rule actually took effect until the Bush Administration came into office. More recently, the USDA floated a proposed rule early in the Biden Administration to ban labor law violators from doing business with that agency. While it was promptly withdrawn, it was only because of vigilance on the part of some in industry. Suspension or debarment is not supposed to be a punishment for past actions, but rather a determination based on a company’s current responsibility. That could change, however, if industry fails to continue tracking this issue. While serious bad actors must be assessed on their responsibility, no company acting in good faith wants to wake up one day and find that their federal business is over due to what could be two or more relatively minor labor law violations.