On Friday, the House of Representatives approved 299-120 the National Defense Authorization Act (NDAA) for Fiscal Year 2013 (H.R. 4310) with an amendment (H. Amdt. 1106) that would “prevent federal agencies from requiring contractors to sign an anti-competitive and costly project labor agreement (PLA) as a condition of winning a federal construction contract” for military construction and housing projects. This amendment, offered by Rep. Roscoe Bartlett (R-MD), was narrowly approved on May 17 in a 211-209 vote. Specifically, this amendment would add the following to the U.S. Code section addressing military construction projects: 

(d)(1) The Secretary of Defense and the Secretaries of the military departments, when awarding a construction contract on behalf of the Government, in any solicitations, bid specifications, project agreements, or other controlling documents, shall not--

(A) require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations; and

(B) discriminate against or give preference to bidders, offerors, contractors, or subcontractors based on their entering or refusing to enter into such an agreement.

(2) Nothing in this subsection shall prohibit a contractor or subcontractor from voluntarily entering into an agreement with one or more labor organizations, as protected by the National Labor Relations Act (29 U.S.C. 151 et seq.).

The changes made by this amendment would not apply retroactively to construction contracts awarded before the date of the enactment of the NDAA.

On February 6, 2009, President Obama issued Executive Order (E.O) 13502: Use of Project Labor Agreements for Federal Construction Projects. This E.O. declared 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 . . .” A little more than a year later a number of federal agencies issued final regulations to implement this E.O. Since then, many lawmakers and federal contractors have criticized this policy.

Upon introducing this amendment, Rep. Bartlett claimed that “only 11.8 percent of our workforce belongs to a PLA” and that “PLA contracts in the government on the average cost the taxpayer 12 to 18 percent more than a non-PLA contract.” During the House floor debate of this amendment, Rep. Phil Gingrey (R-GA) similarly spoke in favor of the measure, claiming that:

Under a PLA, the construction firm must agree to sign a union collective bargaining agreement, whether it's unionized or not, before it can bid on a government project. PLAs can result in increased costs for contractors and taxpayers by as much as 18 percent and cause unnecessary procurement delays and political favoritism in the Federal procurement process. At a time when the Department of Defense is facing devastating across-the-board cuts, it simply does not make sense to encourage PLAs.

Other members of the House disagreed. Rep. Joe Courtney (D-CT), for example, noted that the E.O. promoting PLAs exempts projects $25 million or less, and argued that the amendment “handcuffs the Department of Defense to set up prehiring agreements that can help veterans, the local workforce, and apprenticeship programs for young Americans who want to get an opportunity to learn a building trade.”

The Senate has not yet acted on its version of the National Defense Authorization Act for Fiscal Year 2013.

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