With the addition of two new federal bid protests, 91¶ÌÊÓƵ is aware that four 91¶ÌÊÓƵ-member construction firms have now filed federal bid protests objecting to project solicitations that require a project labor agreement (PLA). All four protests have led the government to voluntarily suspend the contract awards for the procurements while the protests are still pending. As reported recently in this article, the protests utilize a legal theory that 91¶ÌÊÓƵ helped create with outside counsel at Fox Rothschild. All four protests are pending before the U.S. Court of Federal Claims.
In at least two of these cases, the government is now required to supplement the administrative record with market research to support the use of a PLA on these projects as consistent with full and open competition. 91¶ÌÊÓƵ believes the original market research submissions supporting the use of a PLA were legally insufficient and would not advance the Federal Government’s interests in achieving economy and efficiency in Federal procurement. Now, the government must supplement the administrative record for these two projects or likely take corrective action by the end of August. The act of removing the PLA requirement and re-issuing the solicitation without the PLA requirement would constitute corrective action. To date, the Biden Administration has not granted an exception to its new PLA-mandate policy.
Through these bid protest actions that use 91¶ÌÊÓƵ’s arguments on why the PLA mandate is illegal, 91¶ÌÊÓƵ hopes the court will agree and rule that an across-the-board PLA mandate is an unlawful socio-economic set-aside program that Congress never authorized and a clear violation of the Competition in Contracting Act (CICA). However, if the government determines an exception applies and removes the PLA mandate in reissued solicitations, 91¶ÌÊÓƵ will have led the charge for a viable avenue to force the government to invoke the waiver process. Overall, 91¶ÌÊÓƵ seeks to convene resources and create a blueprint for 91¶ÌÊÓƵ firms to reference if faced with procurements that prejudice and disqualify otherwise responsible offerors who do not or cannot enter into a PLA with a labor union in order to receive a contract award under the terms of the solicitation.
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91¶ÌÊÓƵ of America neither supports nor opposes contractors’ voluntary use of PLAs on government projects or elsewhere but strongly opposes any government mandate for contractors’ use of PLAs. 91¶ÌÊÓƵ is committed to free and open competition for publicly funded work. 91¶ÌÊÓƵ has long maintained that the federal government should not mandate PLAs. Government mandates for PLAs hurt both union contractors and open-shop contractors, and fail to promote economy and efficiency in federal procurement. According to an 91¶ÌÊÓƵ analysis, the Department of Defense federal construction agencies— which perform the lion’s share of federal construction—rejected PLA mandates 99.4 percent of the time even when encouraged to do so under the Obama Administration. More information on 91¶ÌÊÓƵ-provided information on PLAs can be found here.
For more information, contact Leah Pilconis, General Counsel, at 703-837-5332 or Brian Perlberg, Senior Counsel, at 703-837-5318.