What better way to kickoff 4th of July celebrations than to learn how free enterprise advocates are winning the fight for fair and open competition in federal contracting?
In honor of Independence Day, TheTruthAboutPLAs.com is sharing this Washington Update column from Construction Executive updating readers about the fight against federal government-mandated project labor agreements (PLAs).
Winning the Fight Against Government-Mandated PLAs in Federal Contracting
By Ben Brubeck
Four years ago, President Obama signed Executive Order 13502, which encourages federal agencies to mandate project labor agreements (PLAs) on large-scale federal construction projects exceeding $25 million in total cost on a case-by-case basis. Many merit shop advocates of fair and open competition predicted it would lead to billions of dollars’ worth of federal construction contracts being awarded to unionized contractors and their all-union workforces—without true competition from qualified merit shop contractors.
Industry experts feared the executive order would result in taxpayers needlessly paying nearly 20 percent more per federal contract procured with a PLA requirement. Faced with finite building budgets, it would generate less building and create fewer jobs for the experienced men and women employed by merit shop contractors who deliver projects safely, on time and on budget every day to the federal government.
Stakeholders turned to Associated Builders and Contractors (ABC) to defend fair and open competition in federal contracting. ABC and the merit shop contracting community mobilized an aggressive campaign of effective public relations, political, legal, and legislative strategies to restrict the devastating impact of anti-competitive and costly government-mandated PLAs on federal, state and local public works projects.
The campaign is producing impressive results. Nearly 98 percent of the 707 federal construction projects exceeding $25 million in total costs awarded during fiscal year 2009–fiscal year 2012 (valued at $47.6 billion) were not subject to PLA mandates or preferences.
Legal tactics proved effective stopping federal PLA mandates. Federal contractors, with the support of ABC, filed five Government Accountability Office (GAO) bid protests against PLAs mandated by four different federal agencies on large-scale federal construction projects. In each instance, federal agencies abandoned the PLA requirements after GAO officials suggested they violate federal contracting laws in specific circumstances.
The latest legal victory against a PLA mandate on a U.S. Department of Labor (DOL) Job Corps Center in Manchester, N.H., was the DOL’s second failed attempt to require a PLA on the project. It was also the first apples-to-apples comparison of a federal project bid with and without a PLA requirement. Advocates of fair and open competition were not surprised when the PLA-free project experienced three times as many bidders and bid prices that were 16 percent lower than when the project was bid with a PLA mandate, saving taxpayers more than $6.2 million.
Helping merit shop contractors respond to more than 175 surveys issued by federal agencies to determine if a PLA is appropriate for a federal project has been another effective strategy in the fight against PLAs. A robust response from the merit shop contracting community resulted in no PLA requirements on any surveyed projects.
More importantly, ABC’s campaign prevented the expansion of Executive Order 13502 onto federal projects costing less than $25 million, as well as thwarted an additional push for costly PLA mandates on private, state and local projects receiving federal assistance.
Since 2011, 13 states responded to the threat of discriminatory PLA mandates and preferences by adopting legislation or executive orders banning government-mandated PLAs on state, local and publicly funded projects, bringing the total number of states to enact such measures to 17.
Most recently, South Carolina Gov. Nikki Haley signed a bill (S.438) into law prohibiting state government entities from requiring contractors to sign a PLA or other agreements with labor unions as a condition of performing work on public construction projects.
Dozens of communities across the country also have enacted similar rules for public works contracting.
Continuing the Fight
Faced with another four years of President Obama’s pro-PLA policies, ABC will continue to make defending fair and open competition in public contracting a top priority. In the 113th Congress, ABC will promote the Government Neutrality in Contracting Act (S. 109/H.R. 436), which would restore a level playing field in federal contracting by preventing entities procuring federal and federally assisted projects from requiring PLAs as a condition of winning a taxpayer-funded contract.
While the passage of a legislative solution to the PLA problem in a divided federal government will be nearly impossible, ABC will continue to complement effective legislative, legal and regulatory strategies with a communications and grassroots campaign to educate federal agency procurement officials, lawmakers, industry stakeholders, the media and taxpayers about the harmful effects of special interest PLA schemes.
The last four years proved the merit shop contracting community can overcome economic and political adversity. However, another four years of success in the fight against government-mandated PLAs depends on industry leaders rededicating resources to fight for fair and open competition until a political solution is achievable.
Ben Brubeck is director of labor and federal procurement for Associated Builders and Contractors. For more information, visit the www.thetruthaboutplas.com, www.facebook.com/thetruthaboutplas or follow the campaign on Twitter @truthaboutplas. Contact Brubeck via email to get involved in the fight against government-mandated PLAs today.