December 2023 Update: ABC’s Fight Against Government-Mandated Project Labor Agreements

0 December 6, 2023  Featured, Federal Construction, State & Local Construction

Since President Joe Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects, on Feb. 4, 2022, mandating inflationary and anti-competitive project labor agreements on federal construction projects of $35 million or more, numerous lawmakers and taxpayer and construction industry groups have renewed fierce opposition to the Biden administration’s push for government-mandated PLAs on both federal and federally assisted public works projects.

Government-mandated PLAs needlessly increase the cost of construction by 12% to 20%, reduce competition from contractors employing 88.3% of the construction industry workforce and steal up to 34% of wages from the few nonunion workers allowed to work on a PLA jobsite.

Following the passage of the $1.2 trillion Infrastructure Investment and Jobs Act infrastructure bill­­—and other measures providing billions of dollars to private developers and federal, state and local government-procured construction contracts funded by taxpayers—free from language requiring PLAs mandates and PLA preferences, construction industry and taxpayer advocates are engaged in an advocacy battle with construction trade unions and other pro-PLA sycophants and lawmakers. It will determine the fate of hundreds of billions of dollars’ worth of construction contracts and new jobs for millions of construction workers in the industry.

ABC slammed the Biden executive order in a Feb. 3, 2022, statement picked up in dozens of publications nationwide: “This 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.”

A Feb. 9, 2022, ABC op-ed in The Wall Street Journal laid out arguments against the Biden administration’s policy and concluded, “Taxpayers would be best served by the adoption of inclusive, win-win policies that help America’s construction industry realize the potential of the Infrastructure Investment and Jobs Act of 2021. We can’t rebuild our nation’s crumbling infrastructure effectively, increase accountability and reduce waste with PLAs.”

On Oct. 19, 2022, ABC submitted more than 40 pages of comments to the Federal Acquisition Regulatory Council calling on the Biden administration to withdraw a controversial proposed rule implementing EO 14063 that would require anti-competitive and inflationary PLAs on federal construction contracts of $35 million or more––affecting an estimated 120 federal contracts totaling $12 billion to $14 billion a year––once published in the federal register and implemented by federal agencies.

ABC’s comments also attacked additional Biden administration policies promoting PLA mandates on federally assisted construction contracts procured by developers building private projects and state and local governments procuring taxpayer-funded contracts for construction services. (Visit abc.org/PLAgrants to learn more).

ABC’s opposition to the Biden administration’s pro-PLA policies are joined by more than 50 members of the U.S. Senate and U.S. House of Representatives, 19 Republican governors, a diverse coalition of construction industry, small business and taxpayer advocates and more than 8,000 comments from the public who urged the administration to withdraw its harmful policies promoting PLA mandates on federal and federally assisted construction projects.

Learn more about EO 14063 and the FAR Council’s proposed rule via ABC’s FAQ document.

In February 2023, an ABC-led coalition of organizations from the construction industry and the business community representing thousands of businesses employing millions of construction industry employees sent a letter to Congress voicing strong support for the Fair and Open Competition Act (H.R. 1209/S. 537), which has been reintroduced in the 118th Congress by Sen. Todd Young, R-Ind., and Rep. James Comer, R-Ky., on Feb. 27. In March, a coalition of taxpayer advocates and government watchdogs sent a letter to Congress in support of FOCA. In July, stakeholders applauded the U.S. House Oversight and Accountability’s passage of FOCA out of committee.

Stakeholders can write their lawmakers and encourage them to cosponsor FOCA via this grassroots campaign.


To date, similar pro-taxpayer legislation has been enacted in 25 states prohibiting government-mandated PLAs on state and local construction projects to some degree.

ABC has long been a leader in opposing government PLA mandates and preferences on taxpayer-funded construction projects procured by local, state and federal governments.

This fight is expected to reach a boiling point soon as a review of the final rule implementing this policy was cleared by the White House Office of Management and Budget’s Office of Information and Regulatory Affairs on Nov. 30, and is expected to be rolled out by the Biden administration as early as this week.

12/18/23 UPDATE: The FAR final rule was released on Dec. 18, drawing a swift rebuke from ABC, House Oversight and Accountability Committee Chair James Comer and other stakeholders. Absent as successful legal challenge, it will go into effect on Jan. 22, 2024.

ABC will continue to lead the fight against this anti-competitive and costly EO—and other separate Biden administration policies pushing PLA mandates on federally assisted contracts—with every legal, legislative, public relations, regulatory, grassroots and educational tool in our advocacy toolbox.

ABC’s Fight Against Government-Mandated PLAs 2009 to the Present

In February 2009, President Obama signed Executive Order 13502, which encourages federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total cost on a case-by-case basis, and permits recipients of federal assistance to mandate PLAs on state and local public works projects.

Many merit shop advocates and public policy professionals predicted the policy would steer billions of dollars’ worth of federal and federally assisted construction contracts to unionized contractors and their all-union workforces—without true competition from qualified merit shop contractors and their nonunion employees, who composed 88.3% of the U.S. construction industry in 2022.

Industry experts feared the policy would result in hardworking taxpayers needlessly paying nearly 20% more per federal contract procured with a PLA requirement. Faced with finite building budgets, the order would effectively generate less public building and infrastructure improvements, 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 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.

It has been more than a decade since ABC began its fight against the Obama administration’s controversial pro-PLA policy, and the campaign continues to produce impressive results.

ABC’s campaign helped prevent PLA mandates and preferences on more than 99% of 3,374 federal contracts exceeding $25 million during fiscal years 2009-2023 worth $267.5 billion so all qualified firms could fairly compete to win these contracts. It’s clear that when given a choice, federal agencies see little value in anti-competitive and costly PLA schemes.

The Trump administration did not mandate any PLAs, despite its failure to repeal the Obama pro-PLA policy. In addition, to date there have been no federal PLAs mandated by Biden administration federal agencies.

ABC contractors have taken advantage of a level playing field, ensuring robust competition. During fiscal years 2009-2023, ABC member prime contractors won 49.5% of the total value of large-scale federal contracts subject to Obama’s pro-PLA EO 13502. In total, ABC members have won 1,563 contracts (46.3%) valued at $132.5 billion from fiscal years 2009-2023.

Note, these charts are available for projects from FY09-FY23 for federal contracts of $25M and $35M here.

Effective Tactics To Combat Government-Mandated PLAs on Federal and Federally Assisted Construction Projects

Legal tactics proved effective at stopping federal PLA mandates before and after regulations implementing Obama’s EO 13502 went into effect in May 2010.

Federal contractors, with the support of ABC, filed five Government Accountability Office 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 most recent GAO bid protest victory, against a PLA mandate on a U.S. Department of Labor Job Corps Center in Manchester, New Hampshire, was the DOL’s second failed attempt to require a PLA on the project. It also resulted in the first apples-to-apples comparison during the Obama administration of a federal project bid with and without a PLA requirement. Advocates of fair and open competition were not surprised when, in 2013, the PLA-free project drew three times as many bidders and bid prices that were 16% less than when the project was bid with a PLA mandate a few months prior. The PLA-free bidding saved taxpayers more than $6.2 million and allowed a local firm with local workers to build the project on time and on budget to the satisfaction of the DOL.

This is one example of numerous federal and federally assisted construction projects subjected to government-mandated PLAs that have resulted in increased costs and reduced competition and undermined promises by PLA proponents that PLA schemes deliver on-time, on-budget, safe, strike-free outcomes with an inclusive construction industry workforce.

Helping merit shop contractors respond to hundreds of 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 government-mandated PLAs. While ABC has asked the White House and Congress to reform the time-consuming federal agency PLA survey process, a robust response from the merit shop contracting community has resulted in no PLA requirements on any surveyed projects, to date.

More importantly, ABC’s campaign prevented the expansion of EO 13502 onto federal projects costing less than $25 million, and thwarted an additional federal push for costly PLA mandates on private, state and local projects receiving federal assistance.

Since President Obama issued EO 13502 in 2009, 29 states responded to the threat of discriminatory PLA mandates and preferences by enacting Fair and Open Competition Act legislation prohibiting government-mandated PLAs on state and local taxpayer-funded construction projects to some degree to send a message to the federal government that PLA mandates are not welcome on local projects.

Unfortunately, four states––Maine, Minnesota, Nevada and Virginia––rolled back common-sense FOCA policies following Democratic party takeovers of state government, bringing the total number of states with active pro-taxpayer FOCA measures to 25, once Wyoming’s FOCA statute takes effect on July 1, 2023.

To date, all legal challenges to state and federal FOCA policies ensuring government neutrality in public works contracting have failed.

ABC’s efforts to enact state FOCA laws prevented government-mandated PLAs on more than $1 trillion worth of construction capital outlay through the end of 2022.

 

These efforts ensure a level playing field, increase competition, reduce costs and eliminate cronyism in public works contracting procured by state and local governments. However, they do not prevent PLA mandates and preferences required by federal agencies procuring direct federal government construction contracts in those states, as those projects are governed by federal law.

Government-Mandated PLAs Remain a Threat to Free Enterprise

Despite the campaign’s track record of success, government-mandated PLAs remain a threat to free enterprise and fair and open competition in certain states and markets.

Some municipalities and eight states controlled by union-friendly Democrats have enacted legislation or executive orders pushing the use of government-mandated PLAs on state, state-assisted and local public works projects to some degree. These policies are shutting out qualified contractors on certain public works contracts in states such as California, Connecticut, Hawaii, Illinois, New Jersey, New York and Washington—and major cities like ChicagoHonoluluLos Angeles, New York City and Philadelphia—from opportunities to rebuild their own communities.

This unprecedented expansion of PLA policy is consistent with the Biden administration’s efforts to coerce state and local governments––as well as private entities––to mandate PLAs on infrastructure projects, all to improve the likelihood of receiving hundreds of billions of dollars of federal grants from the Infrastructure Investment and Jobs Act and existing funding streams. For example, many Biden administration federal agencies are pushing private developers and state and local governments to require PLAs via more than $250 billion worth of federal infrastructure grant programs that give preference to applicants that require PLAs. Likewise, the U.S. Department of Commerce’s CHIPS Act notice of funding opportunity encourages (but does not require) private applicants to mandate PLAs on more than $50 billion of direct federal funding to construct domestic microchip manufacturing facilities and related R&D projects. Furthermore, controversial proposed IRS regulations attempt to needlessly incentive private developers to mandate PLAs on more than $270 billion worth of Inflation Reduction Act tax credits for clean energy construction projects by exempting developers from willful penalties for noncompliance with potentially confusing and half-baked regulations currently under development.

The Biden administration’s efforts to promote PLAs on federally assisted projects are much more aggressive than the Obama administration’s policies, despite the fact the U.S. Department of Housing and Urban Development and U.S. Department of Transportation under Obama encouraged state and local governments to require PLAs on billions of dollars’ worth of state and local projects receiving federal money and other forms of federal assistance.

It is unclear how many federally assisted contracts have actually suffered from PLA mandates, but snapshots of historical data demonstrate it is significant.

For example, according to a U.S. DOT Federal Highway Administration report released in February 2023, state and local lawmakers mandated PLAs on 732 state and local construction projects (totaling an estimated $20 billion) that received federal assistance and formal approval from the FHWA from 2010 to Jan. 27, 2023.

While ABC’s campaign against anti-competitive PLA schemes on federal projects has been largely successful, lawmakers requiring and encouraging the use of special interest-favoring PLA mandates on non-federal projects continues to cost taxpayers a fortune and harms qualified merit shop contractors and their skilled trades employees.

According to a model developed by ABC, every $1 billion of overall construction spending requires 3,620 construction jobs.

The construction industry will need to attract more than half a million additional skilled workers on top of the normal pace of hiring in 2023 to meet the industry demand for labor.

In the face of a skilled labor shortage, supply chain disruptions, material shortages and a 39% increase in the price of nonresidential construction materials since February 2020, lawmakers need to be doing all they can to maximize taxpayer investments in infrastructure while helping all construction workers find quality jobs to rebuild their communities.

However, Biden administration policies independent of EO 14063 promoting the use of PLAs on certain federally assisted construction projects will stoke inflation and undermine federal taxpayer investments in water, energy and communication utilities, as well as roads, bridges, transportation hubs, affordable housing and schools. Federal dollars distributed to state and local governments via multiple grant programs administered by the departments of Treasury, Transportation, Agriculture, Interior, Commerce and other federal agencies encourage state and local governments––and private applicants––to mandate PLAs on water, sewer, broadband, offshore wind, energy, infrastructure, affordable housing and microchip prefabrication projects.

In addition, on March 17, 2023, the Biden administration touted progress implementing a Feb. 7, 2022, White House Task Force on Worker Organizing and Empowerment report delivering on a number of new policy recommendations to expand PLAs onto federally assisted projects and other federal contracting opportunities.

President Biden is keeping his promise to be the most pro-union president in history. When it comes to PLA schemes, that’s a bad deal for taxpayers, free enterprise, America’s infrastructure and experienced small businesses, as well as the more than 88% of workers in the construction industry who are harmed by PLA mandates.

 

Corrupt Government-Mandated PLAs Rig the Bidding Process

Problematic, anti-competitive terms in government-mandated PLAs require contractors to:

  • Use union hiring halls to obtain most or all workers instead of their existing workforce.
  • Obtain apprentices exclusively from union apprenticeship programs.
  • Follow inefficient union work rules.
  • Expose companies to multi-employer pension plan liabilities by paying into union benefit and multiemployer pension plans that few/limited number of nonunion employees permitted on the PLA project will be unable to access unless they join a union and vest in these plans.

Research estimates that nonunion employees on PLA projects suffer an estimated 34% reduction in their compensation and contractors pay an extra 35% in benefits costs to cover PLA wage theft to union benefits plans, making merit shop firms less competitive against unionized firms. In addition, the limited number of nonunion workers permitted on a PLA project are forced to join a union and/or pay union dues as a condition of employment in non-Right-to-Work states or risk forfeiting benefits earned on a PLA project unless they join a union and become vested in plans in Right-to-Work states.

The practical impact of government-mandated PLAs is that they discourage competition from qualified and local contractors and their skilled employees who want nothing more than to pursue their career dreams, provide for their families and rebuild their communities.

Contracts subject to government-mandated PLAs steer work to benefit union-signatory contractors and well-connected construction unions favored in PLAs. Those unions use their members’ dues to support the political campaigns of candidates who pledge to push PLA mandates on taxpayer-funded projects that deny opportunities to the more than 88% of U.S. private construction workers who choose not to join a union.

Potential PLA mandates on taxpayer-funded contracts expose officials to intense political pressure, as unions spend millions of dollars to secure a monopoly on public works construction projects.

According to public filings, in the 2021-2022 election cycle, the 15 construction trade unions affiliated with the North America’s Building Trades Unions disbursed nearly $62 million in federal PAC dollars to federal, state and local candidates; committees; joint fundraising committees; national state and local parties; and various other expenses.

These PACs contributed almost $14.5 million to federal candidates, and $13.2 million—91%—went to Democratic candidates.

Continuing the #NoPLAs Fight in 2023

ABC and a diverse coalition of organizations will continue to defend fair and open competition in public contracting during the remainder of the 118th Congress and President Biden’s term.

ABC and the coalition support the Fair and Open Competition Act (H.R. 1209/S. 537), which would restrict government-mandated PLAs on federal and federally assisted construction projects. Write your lawmakers and ask them to support FOCA today.

In addition, ABC will continue to implement effective legislative, legal and regulatory strategies complemented by communications and grassroots campaigns to educate federal agency procurement officials, lawmakers, industry stakeholders, the media and hardworking taxpayers about the harmful effects of special interest PLA schemes. Visit BuildAmericaLocal.com to learn more.

ABC will fight for federal, state, and local policies that create a level playing field in the procurement of government construction contracts, increase competition, help small businesses grow, curb construction costs and spread the job-creating benefits of taxpayer- funded contracts throughout the entire construction industry.

But we cannot do it alone. Concerned taxpayers and the merit shop contracting community can overcome these discriminatory PLA schemes as long as stakeholders and industry leaders remain diligent, support candidates who believe in free enterprise elected during the critical midterm elections, engage in grassroots advocacy and continue to educate lawmakers, employees and stakeholders about this campaign until a political or legislative solution is achievable.

Leave us some thoughts or comments below. TheTruthAboutPLAs.com would love to hear from you.

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