[House Report 115-1068]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1068
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FAIR AND OPEN COMPETITION ACT
_______
December 10, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1552]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1552) to preserve open competition
and Federal Government neutrality towards the labor relations
of Federal Government contractors on Federal and federally
funded construction projects, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 5
Explanation of Amendments........................................ 7
Committee Consideration.......................................... 7
Roll Call Votes.................................................. 7
Application of Law to the Legislative Branch..................... 7
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Federal Advisory Committee Act................................... 8
Unfunded Mandate Statement....................................... 8
Earmark Identification........................................... 8
Committee Estimate............................................... 8
Budget Authority and Congressional Budget Office Cost Estimate... 9
Minority Views................................................... 11
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 1552, the Fair and Open Competition Act, ensures that
federal agencies neither mandate nor prohibit project labor
agreements (PLAs) for federal or federally-funded construction
contracts. PLAs are collective bargaining agreements with one
or more labor organizations that establish the terms and
conditions of employment for construction projects.\1\ The
purpose of this bill is to ensure fair and open competition
through equal treatment of union and non-union construction
contractors.
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\1\Project Labor Agreements are comprehensive pre-hire collective
bargaining agreements that establish terms and conditions of employment
for a specific construction project. U.S. Dep't of Transp.,
Construction Program Guide, available at https://www.fhwa.dot.gov/
construction/cqit/pla.cfm.
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BACKGROUND AND NEED FOR LEGISLATION
In 2009, President Barack Obama signed Executive Order
(E.O.) 13502 on the use of PLAs. E.O. 13502 strongly encourages
the use of project labor agreements (PLAs) for federal or
federally-assisted construction projects valued over $25
million. Although the E.O. does not explicitly mandate the use
of PLAs for federal or federally-assisted contracts, agencies
have used it to openly encourage PLA mandates or preferences.
For example, the General Services Administration (GSA) released
guidance stating contractor proposals that include a PLA would
receive a 10 percent increase in their technical evaluation
score relative to contractors that did not include a PLA.\2\
Other federal agencies have also issued guidance stating
contractors participating in PLAs may receive a preference
during the evaluation process or allow projects to mandate PLAs
in contracts.\3\
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\2\Project Labor Agreements and the Cost of Doing Business in the
Construction Industry: Hearing Before the H. Comm. On Oversight & Gov't
Reform, Subcomm. on Regulatory Affairs, 112th Cong. (Mar. 16, 2011)
(statement of Robert A. Peck, Comr., Public Building Service, U.S.
General Services Admin.).
\3\See Letter from Stephen E. Sandherr, Chief Executive Officer,
Associated General Contractors of America, to Marta Anerton, Contract
Specialist, U.S. Army Corps of Engineers (July 30, 2014) (discussing
the Army Corps intent to require the use of PLAs on a construction
project); Federal Highway Administration, Interim Guidance on the use
of Project Labor Agreements (May 7, 2010), available at http://
www.fhwa.dot.gov/construction/contracts/100507.cfm; Memorandum from
Dep't of the Army on Procurement Instruction Letter (PIL) 2011-01-R1,
USACE Policy Relating to the Use of Project Labor Agreements (PLAs) for
Federal Construction Projects (Dec. 16, 2011), available at http://
www.acq.osd.mil/dpap/cpic/cp/docs/PIL_2011-01-R1_Project_
Labor_Agreements_Policy.pdf.
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Shortly after President Obama issued E.O. 13502, the impact
of this preference for PLAs for federal construction contracts
was apparent. In one $105 million project to renovate the 70-
year-old Lafayette building in Washington, D.C., GSA initially
required contractors to submit one proposal with a PLA and one
without. GSA later changed this requirement after it was
challenged in litigation. In the second solicitation, GSA gave
a 10 percent preference for contractors that voluntarily
submitted bids with PLAs for the Lafayette project.\4\ In 2011,
GSA officials reported 7 of 10 GSA projects with budgets of
more than $100 million and funded under the American Recovery
and Reinvestment Act of 2009 had signed PLAs in place.\5\
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\4\Michael Neibauer, GSA to not require unions on Lafayette
building work, Wash. Bus. J. (May 3, 2010), http://www.bizjournals.com/
washington/stories/2010/05/03/story12.html.
\5\H.R. 735 and Project Labor Agreements: Hearing Before the H.
Comm. On Oversight and Gov't Reform, Subcommittee on Technology, 112th
Cong. (2011) (statement of Susan Brita, Deputy Administrator, U.S.
General Services Admin.).
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The Fair and Open Competition Act addresses this policy
preference by promoting efficient and cost-effective
administration and completion of federal and federally-assisted
construction projects.
In terms of costs, mandated PLAs can drive up the cost of
federal or federally-assisted construction projects between 12
and 18 percent.\6\ In one example, a U.S. Department of Labor
Job Corps Center project in New Hampshire initially had a PLA
mandate. Later, after three years of delays and litigation, the
project was rebid without a PLA mandate with the result of
nine--instead of three--bidders and lower bids (16.5 percent
less than the lowest bid when there was a PLA mandate).\7\ In
another example, a study of 551 California school construction
projects, where 65 were built using PLAs, showed PLA contracts
increased the construction costs from $29 to $32 per square
foot.\8\ This same study concluded that PLAs are not a
``costless policy tool,'' but instead a cost increasing policy
initiative.\9\
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\6\Letter from American Council of Engineering Companies, et. al.
to Jason Chaffetz, Chair, Comm. on Oversight & Gov't Reform, and Elijah
Cummings, Ranking Member, Comm. on Oversight & Gov't Reform (Mar. 27,
2017) on file with Comm.
\7\PLA/NoPLA Bid Results, TheTruthAboutPLAs.com (Apr. 23, 2013),
http://thetruthaboutplas.com/wp-content/uploads/2013/04/Bid-Results-of-
Manchester-NH-DOL-Job-Corps-Center-bid-with-and-without-a-PLA-
042313.pdf; U.S. Dep't of Labor Job Corps Center Opening Demonstrates
Value of Open Competition, TheTruthAboutPLAs.com (Oct. 26, 2015),
http://thetruthaboutplas.com/2015/10/26/u-s-department-of-labor-job-
corps-center-opening-demonstrates-value-of-open-competition/.
\8\Vince Vasquez, et. al., Measuring the Cost of Project Labor
Agreements on School Construction in California, National University
System Institute for Public Research at 10 (2011).
\9\Id. at 15.
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While PLAs are often portrayed as a way to avoid delays in
construction projects by ensuring labor peace, this is often
not the case. For example, the GSA headquarters renovation
project at 1800 F Street, NW in Washington, D.C. was delayed by
over 100 days because the contractor was unable to obtain an
agreement from all the parties to a PLA for the project.\10\
Multiple state level projects with government-mandated PLAs
have also experienced delays.\11\ For example, a review by the
New Jersey Department of Labor found that PLA projects
experienced an average duration of 100 weeks compared to the
78-week average duration of non-PLA projects.\12\ In fact,
avoiding PLA mandates appears to result in less delay. A review
of federal construction projects from 2001-2009, during which
President Bush's E.O. 13202 prohibiting mandated PLAs was in
place, found no significant labor disputes that caused
delays.\13\
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\10\Delays and Increased Costs: The Truth about the Failed PLA on
the GSA's headquarters at 1800 F Street, TheTruthAboutPLAs.com (Mar. 5,
2013), http://thetruthaboutplas.com/2013/03/05/delays-and-increased-
costs-the-truth-about-the-failed-pla-on-the-gsas-1800-f-street-federal-
building/.
\11\Maurice Baskin, Government-Mandated Project Labor Agreements:
The Public Record of Poor Performance at 22-25 (2011), available at
http://thetruthaboutplas.com/wp-content/uploads/2012/12/Baskin-Report-
on-Government-Mandated-PLAs-The-Public-Record-of-Poor-Performance-2011-
Edition-032311.pdf.
\12\Id. at 24.
\13\Id. at 25.
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The Fair and Open Competition Act will ensure robust
competition. Under the Competition in Contracting Act, P.L. 98-
494, agencies are required to ``obtain full and open
competition through the use of competitive procedures'' in all
procurements.\14\ PLAs, however, can effectively reduce
competition by excluding certain contractors and their
employees from competing for construction projects-because not
all contractors participate in PLAs. Currently, more than 80
percent of the private construction workforce in the United
States is non-union.\15\ In addition, because PLAs increase the
cost of the project, fewer individuals will bid on the
construction projects, thereby reducing competition.\16\ The
Associated Builders and Contractors, Inc. conducted a poll of
its members that found that 98 percent of all respondents would
be less likely to bid on a contract where a PLA was
mandated.\17\ Requiring a PLA, or even giving preference to
such agreements, essentially limits opportunities for more than
80 percent of the private construction workforce to compete for
federal construction contracts.
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\14\41 U.S.C. Sec. 3301(a)(1).
\15\U.S. Dep't of Labor, Bureau of Labor Statistics, Union Members
Summary, (Jan. 26, 2017) (stating only 13.9 percent of construction
workers in the private sector are union members).
\16\Paul Carr, Investigation of Bid Price Competition Measured
through Prebid Project Estimates, Actual Bid Prices, and Number of
Bidders, J. of Construction, Engineering and Management (Nov. 2005).
\17\Letter from Ben Brubeck, Dir. of Labor and Fed. Procurement,
Associated Builders and Contractors, Inc., to Tom Dickert, USACE (Mar.
22, 2011) (additional surveys cited in the letter show between 70-86
percent of nonunionized contractors surveyed would be unlikely to bid
on projects requiring PLAs).
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The Fair and Open Competition Act will codify the
principles of neutrality and competition for federal and
federally-assisted construction projects; thereby, ending the
regular shift in federal construction policy on PLAs with each
new administration. In 1997, President Clinton issued a
memorandum on ``Use of Project Labor Agreements for Federal
Construction Projects'' encouraging the use of PLAs.\18\ Then
in 2001, President Bush signed E.O. 13202 entitled,
``Preservation of Open Competition and Government Neutrality
Towards Government Contractors' Labor Relations on Federal and
Federally Funded Construction Projects,'' which essentially
revoked the Clinton era memorandum.\19\ In 2009, President
Obama signed E.O. 13502 entitled, ``Use of Project Labor
Agreements for Federal Construction Projects,'' which revoked
the Bush era E.O.\20\ This bill will end shifting federal
policy and harmonize federal policy with many states' policies
on PLAs. In fact, 22 states have measures in place restricting
the use of PLAs, and several more states are considering
similar measures.\21\
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\18\Memorandum on Use of Project Labor Agreements for Federal
Construction Projects (June 5, 1997) available at https://www.gpo.gov/
fdsys/pkg/PPP-1997-book1/pdf/PPP-1997-book1-doc-pg705.pdf.
\19\Exec. Order No. 13202, 66 Fed. Reg. 11,225 (Feb. 22, 2001).
\20\Exec. Order No. 13502, 74 Fed. Reg. 6,985 (Feb. 11, 2009).
\21\Letter from American Council of Engineering Companies, et. al.
to Jason Chaffetz, Chair, Comm. on Oversight & Gov't Reform, and Elijah
Cummings, Ranking Member, Comm. on Oversight & Gov't Reform (Mar. 27,
2017) on file with Comm.
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Finally, the contention that requiring PLAs for federal and
federally-assisted construction contracts does not impact small
business because of the large size of these contracts is a
misconception. The Small Business Administration notes that the
construction industry in particular is comprised of a large
number of small businesses--with more than an 86 percent of
construction firms considered small businesses.\22\ However,
these small businesses are mostly non-union and are
disadvantaged when PLAs are involved. As a result, the use of
PLAs can negatively impact the small business set-asides put in
place by Congress to promote small businesses.\23\ The Fair and
Open Competition Act will help ensure policies designed to
promote and support small business in government contracting
are not undermined by a preference that would discriminate
against small businesses.
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\22\U.S. Small Business Admin., Office of Advocacy, The Small
Business Economy: A Report to The President, (2009).
\23\Ben Brubeck, Government Project Labor Agreement Mandates Harm
Small Businesses, TheTruthAboutPLAs.com (June 2, 2010), available at
http://thetruthaboutplas.com/2010/06/02/government-project-labor-
agreement-mandates-harm-small-businesses/.
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LEGISLATIVE HISTORY
On March 15, 2017, Representative Dennis Ross (R-FL)
introduced H.R. 1552, the Fair and Open Competition Act, or
FOCA Act. The following Representatives are cosponsors of the
bill: Thomas Massie (R-KY), Mark Walker (R-NC), Jody Hice (R-
GA), Ralph Lee Abraham (R-LA), Gregg Harper (R-MS), Trent
Franks (R-AZ), Mo Brooks (R-AL), Glenn Grothman (R-WI), Ken
Calvert (R-CA), Blake Farenthold (R-TX), Steve Chabot (R-OH),
John Carter (R-TX), Dana Rohrabacher (R-CA), Jodey Arrington
(R-TX), Trey Hollingsworth (R-IN), Rick Allen (R-GA), Paul
Gosar (R-AZ), Trent Kelly (R-MS), Mimi Walters (R-CA), Darrell
Issa (R-CA), Luke Messer (R-IN), Tom Cole (R-OK), Francis
Rooney (R-FL), Ann Wagner (R-MO), Duncan Hunter (R-CA), Billy
Long (R-MO), Jason Smith (R-MO), Blaine Luetkemeyer (R-MO),
John Moolenaar (R-MI), Lloyd Smucker (R-PA), Vicky Hartzler (R-
MO), David Rouzer (R-NC), and Richard Hudson (R-NC), Edward
Royce (R-CA), Joe Wilson (R-SC), Scott Perry (R-PA), Kevin
Yoder (R-KS), Stephen Knight (R-CA), Paul Mitchell (R-MI), and
Jim Jordan (R-OH). H.R. 1552 was referred to the House
Committee on Oversight and Government Reform. The Committee
considered the bill at a business meeting on March 28, 2017 and
ordered the bill reported favorably to the House, without
amendment, by voice vote.
On March 14, 2017, Senator Jeff Flake (R-AZ) introduced S.
622, the Fair and Open Competition Act. Senators James Risch
(R-ID) and David Perdue (R-GA) cosponsored the bill. S. 622 was
referred to the Senate Committee on Homeland Security and
Governmental Affairs.
A similar bill was introduced in the 114th Congress. On
March 26, 2015, Representative Mick Mulvaney (R-SC) introduced
H.R. 1671, the Government Neutrality in Contracting Act. H.R.
1671 was referred to the House Committee on Oversight and
Government Reform. The Committee considered H.R. 1671 at a
business meeting on January 12, 2016 and ordered the bill
reported favorably, without amendment, by voice vote.
The Senate companion to H.R. 1671 was S. 71. On January 7,
2015, Senator David Vitter (R-LA) introduced S. 71, which was
referred to Senate Committee on Homeland Security and
Governmental Affairs.
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Fair and Open
Competition Act'' or ``FOCA Act.''
Section 2. Purposes
Section 2 establishes the purposes of the legislation.
Section 3. Preservation of open competition and federal government
neutrality
Subsection (a)(1) of this section establishes the general
prohibition that the head of each executive agency that awards
any construction contract after the date of enactment, or that
obligates funds for such a contract, shall ensure that the
agency, and any construction manager acting on behalf of the
Federal government with respect to such a contract, does not:
(A) Require or prohibit a bidder, offeror,
contractor, or subcontractor from entering into or
adhering to agreements with one or more labor
organizations, with respect to that construction
project or another related construction project; or
(B) Otherwise discriminate against or give preference
to a bidder, offeror, contractor, or subcontractor
because such bidder, offeror, contractor, or
subcontractor (i) becomes a signatory, or otherwise
adheres to an agreement with one or more labor
organizations; or (ii) refuses to become a signatory,
or otherwise adhere to, an agreement with one or more
labor organizations, with respect to that construction
project or another related construction project.
Paragraph (2) of subsection (a) applies the general
prohibition to contracts entered into on or after the date of
enactment and subcontracts of such contracts.
Paragraph (3) of subsection (a) states that the general
prohibition in paragraph (1) does not prohibit a contractor or
subcontractor from voluntarily entering into an agreement with
one or more labor organizations.
Paragraph (4) of subsection (a) requires revisions to the
Federal Acquisition Regulation for federal contracts not later
than 60 days after enactment.
Subsection (b) applies the general prohibition in
Subsections (a)(1)(A) and (B) to agency awards of grants,
financial assistance, and cooperative agreements.
Subsection (c) authorizes action by the agency head if the
entity fails to comply with subsections (a) and (b). Subsection
(c) states that if an executive agency, a recipient of a grant
or financial assistance from an executive agency, a party to a
cooperative agreement with an executive agency, or a
construction manager acting on behalf of such agency,
recipient, or party fails to comply, the head of the executive
agency awarding the contract, grant, or assistance, or entering
into the agreement involved, shall take such action, consistent
with law, as the head of such agency determines to be
appropriate.
Subsection (d) provides exemptions to Subsections (a) and
(b).
Paragraph (1) of subsection (d) authorizes the head of an
executive agency to exempt a particular project, contract,
subcontract, grant, or cooperative agreement from the
requirements of Subsections (a) and (b) if the head of such
agency determines special circumstances exist that require an
exemption in order to avert an imminent threat to public health
or safety or to serve the national security.
Paragraph (2) of subsection (d) states a finding of special
circumstances may not be based on the possibility or existence
of a labor dispute concerning contractors or subcontractors
that are not signatories to, or that otherwise do not adhere
to, agreements with one or more labor organizations--or labor
disputes concerning employees who are not members of, or
affiliated with, a labor organization.
Paragraph (3) of subsection (d) provides authority for an
additional exemption from subsections (a) and (b) for certain
projects. The agency head may exempt certain projects if, as of
the date of enactment, the head of the agency finds that the
awarding authority, recipient of grants or financial
assistance, party to a cooperative agreement, or construction
manager acting on behalf of any such entities had issued or was
a party to specified items that contained the requirements or
prohibitions in Subsection (a)(1). The specified items are bid
specifications, project agreements, and agreements with one or
more labor organizations.
Subsection (e) defines the terms ``construction contract,''
``executive agency,'' and ``labor organization.''
Explanation of Amendments
No amendments to H.R. 1552 were offered or adopted during
Full Committee consideration of the bill.
Committee Consideration
On March 28, 2017, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported by voice vote.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 1552.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill promotes fair and open competition in federal and
federally assisted construction projects. As such, this bill
does not relate to employment or access to public services and
accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to preserve open competition
and federal government neutrality towards the labor relations
of federal government contractors on federal and federally
funded construction projects.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does direct
the completion of specific rule makings within the meaning of
section 551 or title 5, United States Code. H.R. 1552 section
3(a)(4) requires the Federal Acquisition Regulation Council, no
later than 60 days, to amend the Federal Acquisition Regulation
to implement provisions of this bill.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act of 1995, P.L. 104-4) requires a statement
as to whether the provisions of the reported include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(2)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for this bill from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 7, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1552, the FOCA
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1552--FOCA Act
H.R. 1552 would prohibit federal agencies working on
construction projects from either requiring or prohibiting the
use of project labor agreements (PLAs) except in specific
circumstances. On February 9, 2009, Executive Order 13502
encouraged all federal agencies to use PLAs on construction
projects exceeding $25 million. A PLA is a collective
bargaining agreement that applies to a specific project and is
effective only for the duration of that project. Under those
agreements, which generally include provisions regarding wages
and fringe benefits and procedures for resolving labor
disputes, workers generally agree not to strike and contractors
agree not to lock out workers. The bill would allow contractors
and unions working on construction projects that involve the
expenditure of federal funds to voluntarily negotiate and
execute a PLA.
Information from the Army Corps of Engineers, General
Services Administration, the Congressional Research Service, as
well as union and non-union contractors, is not sufficient to
allow CBO to determine whether the use of PLAs under current
law results in any significant costs or savings to the federal
government. However, because CBO expects that implementing H.R.
1552 would not significantly change the contracting process or
the use of PLAs, CBO estimates that implementing the bill would
not have a significant effect on the federal budget.
Enacting the bill could affect direct spending by agencies
not funded through annual appropriations; therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net
change in spending by those agencies would be negligible.
Enacting H.R. 1552 would not affect revenues.
CBO estimates that enacting H.R. 1552 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1552 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
MINORITY VIEWS
Committee Democrats strongly oppose H.R. 1552, the so-
called ``Fair and Open Competition Act.'' The measure would
create a permanent statutory prohibition preventing federal
agencies from requiring the use of Project Labor Agreements
(PLA) in any contract, bid specification, or project agreement,
even if the use of a PLA would achieve efficiency in the
construction project or save taxpayers money.
The legislation would prohibit the inclusion of any
provisions requiring the use of PLAs in the contracts
associated with any projects funded by any type of federal
assistance, including grants and cooperative agreements. The
legislation would allow the use of PLAs to be required only in
``special circumstances that require an exemption in order to
avert an imminent threat to public health or safety or to serve
the national security.''
The immediate effect of enacting H.R. 1552 would be to
overturn Executive Order 13502, issued by President Obama on
February 6, 2009. Executive Order 13502 does not require the
use of PLAs on any federal contract, but instead states that
agencies ``may'' require PLAs to ``advance the Federal
Government's interest in achieving economy and efficiency in
Federal procurement, producing labor-management stability, and
ensuring compliance with laws and regulations governing safety
and health, equal employment opportunity, labor and employment
standards, and other matters.''\1\
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\1\Exec. Order No. 13502, 74 Fed. Reg. 6985, Use of Project Labor
Agreements for Federal Construction Projects (Feb. 6, 2009) (online at
www.gpo.gov/fdsys/pkg/FR-2009-02-11/pdf/E9-3113.pdf).
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According to a report issued in 1998 by the then-General
Accounting Office (GAO), ``PLAs have been used in all 50 states
and the District of Columbia on federal, state, local
government, or private sector construction projects.'' GAO also
found that PLAs have been used extensively by the private
sector, including on such projects as the Trans-Alaska Pipeline
and Disney World.\2\
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\2\General Accounting Office, Project Labor Agreements: The Extent
of Their Use and Related Information (May 29, 1998) (GAO/GGD-98-82)
(online at www.gao.gov/assets/230/225719.pdf).
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The government should have the option of using the same
construction industry practices used in the private sector if
those practices will help save money and ensure that projects
are completed on time and within budget. It would be a
potentially costly and ill-advised disservice to American
taxpayers to forbid federal agencies from using PLAs even when
they protect the government's investment and save taxpayer
funds.
Elijah E. Cummings,
Ranking Member.
[all]