On Tuesday, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) published in the Federal Register (pdf) a proposed rule implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6 of this year, EO 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf) declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

In awarding any contract in connection with a large-scale construction project, or obligating funds pursuant to such a contract, executive agencies may, on a project-by-project basis, require the use of a project labor agreement by a contractor where use of such an agreement will (i) 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, and (ii) be consistent with law.

To this end, the proposed rule amends the current Federal Acquisition Regulation (FAR) by doing the following:

• Provides a new FAR Subpart 22.5 entitled: Use of Project Labor Agreements for Federal Construction Projects. This subpart defines a “large-scale construction project” as one costing $25 million or more. It also includes general requirements for PLAs, and specifies that if an agency decides to require a PLA, a Notice of Requirement for Project Labor Agreement must be included in all solicitations associated with the construction project, and a PLA clause must be included in all contracts associated with the project. If an agency allows the submission of a PLA after the contract has been awarded, this section directs the contracting officer to use an alternate Notice and PLA clause, as provided in the regulations.
• Adds a new provision at 52.222–XX, Notice of Requirement for Project Labor Agreement, which must be included in solicitations where the agency has exercised its discretion to require a PLA. An alternate notice is also included for use when the agency allows the submission of a PLA after the contract has been awarded.
• Add a new clause 52.222–YY, Project Labor Agreement, to be included in contracts associated with the project at issue. An alternate contract clause is also provided in the event the PLA is submitted after the contract has been awarded.

Although comments may be made about any aspect of these changes, the Councils are particularly interested in comments related to the process, such as whether agencies should require the submission of a PLA prior to the contract award from each offeror as part of their bid, or from a successful offeror only. Additionally, the Notice of Proposed Rulemaking states that the Councils are “considering factors for the contracting officer to consider, on a project-by-project basis, in determining whether use of a project labor agreement will be in the best interest of the Government,” and therefore invite public comment on the factors that should be considered, such as the difficulty of coordinating multiple contracts in the absence of a project labor agreement, and the importance of timely project completion.

Comments on this proposed rule may be sent by mail to:  General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405, or via fax to 202-501-4067, and must be received by August 13, 2009. In the alternative, comments can be submitted electronically at Regulations.gov.  The FAR Case number 2009-005 must be included with any comments.