Christopher Roe Hebdon (firstname.lastname@example.org) is a J.D. candidate at The George Washington University Law School and a member of the Public Contract Law Journal. The author would like to thank Professor Collin Swan for his guidance during the writing process; Emma O’Rourke-Friel, Meghan McConnell, Melisa Easaw, and Lauren Olmsted for their diligence throughout the editing process; and his friends and family for their continued encouragement and support.
Decades of privatization have precipitated tremendous growth in the federal government contracting industry.1 Since the year 2000, the federal contracting budget has nearly doubled,2 and present-day contract expenditures frequently exceed $500 billion annually.3 Contractors today employ approximately twenty-six million individuals or roughly twenty percent of the U.S. workforce.4 However, the panoply of labor and employment laws specifically protecting the welfare of contractor personnel have been, and continue to be, underenforced.5 As a result, labor and employment law violations are too common among contractors.6
The nation’s newspapers highlight the prevalence and personal impact of this persistent problem. Between 2015 and 2016, for example, four employees were killed during separate accidents at the Goodyear Tire and Rubber Company’s plant in Danville, Virginia.7 Although “very serious problems appear to have existed for an extended period of time at the plant,”8 Good- year received $8.3 million in federal contract dollars during fiscal year (FY) 2016.9 In another example from 2007, a washroom operator at a Cintas Corporation facility in Tulsa, Oklahoma became trapped in an industrial clothing dryer and died after exposure to temperatures exceeding 300 degrees for more than twenty minutes.10 The Occupational Safety and Health Administration (OSHA) found that “plant management…ignored safety and health rules.”11
Nevertheless, Cintas continued to earn millions in taxpayer dollars.12 And, in 2015, the Corrections Corporation of American (now known as CoreCivic) accumulated more than 21,000 wage and hour violations, underpaying workers by millions of dollars, while also receiving approximately a billion taxpayer dollars.13 Perhaps most troublingly, these stories are anything but unique since many prominent companies have federal contracts despite checkered legal histories.14
Undoubtedly, the overwhelming majority of “contractors offer good, well-paying jobs and safe working conditions.”15 Yet concerning headlines and decades of research and analysis demonstrate that by contracting with repeat labor and employment law violators, the federal government receives poor performance, wastes taxpayer money, endangers the welfare of the contractor workforce, and threatens the integrity and perceived fairness of the federal acquisition system.16 Responding to these concerns, both the Clinton and Obama administrations proposed reforms enabling contracting officers to consider a prospective contractor’s previous labor and employment law violations when determining their present responsibility.17 Unfortunately, both reforms were aggressively opposed and never successfully implemented.18 Nevertheless, the goal of empowering contracting officers with the capability and responsibility to consider a prospective contractor’s compliance with labor and employment laws prior to contract award remains a goal worthy of implementation.19
Supporting the policy goals that animated previous reform proposals, but cognizant of the limitations imposed by historical precedent, this Note aims to combat the government’s unfortunate tendency to contract with companies found to have violated the nation’s labor and employment laws repeatedly. Part II provides background on both the policy and procedure for responsibility determinations during contract formation. Part III discusses the primary issue: the award of contracts to contractors possessing a history of labor and employment law violations because contracting officers lack the resources to combat the problem. Part IV analyzes the policy prerogatives advanced by confronting this issue in government contracting. Part V presents the practical mechanics and common critiques of both previous reform proposals. And, Part VI concludes by presenting the author’s three-part proposal: (1) amending the Federal Acquisition Regulation (FAR) to set forth an appro- priate standard for a “satisfactory record of integrity and business ethics;” (2) expanding the information available to contracting officers regarding a prospective contractor’s previous compliance with labor and employment laws; and (3) requiring contracting officers to solicit and consider, in con- sultation with legal counsel, potentially mitigating factors prior to issuing a responsibility determination.
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