July 13, 2020

Volume X, Number 195

July 13, 2020

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July 10, 2020

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Endgame for Blacklisting Order

Congress recently began the process to legislatively overturn the regulations implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order.  Under the Congressional Review Act, Congress can dismantle regulations that were finalized in the waning days of a presidential administration. The process begins with a joint “resolution of disapproval” in Congress.  If the resolution is signed into law — a safe assumption when the presidency changes parties — the underlying regulation has no effect, and any “substantially similar” rule cannot be re-issued without specific re-authorization legislation.

On Thursday, the House passed the disapproval resolution for the Fair Pay and Safe Workplaces regulations on an almost straight party-line vote. It now goes to the Republican-controlled Senate and then to the White House, where the President’s advisors would recommend that he sign it.

Most of the Fair Pay and Safe Workplaces provisions had already been blocked since the U.S. District Court for the Eastern District of Texas issued a nation-wide injunction in October 2016, but this legislative strategy would dismantle the regulations altogether.  A portion of the regulations regarding pay transparency was allowed to take effect for new solicitations issued on or after January 1, 2017, but that portion will be overturned by this disapproval legislation.  Contractors should remember, however, that separate Labor Department regulations govern pay transparency.  Those regulations still remain in effect.

© 2020 Covington & Burling LLPNational Law Review, Volume VII, Number 37


About this Author

Jeff Bozman, Government contracts attorney, Covington Burling

Jeff Bozman draws on his past experience as a Marine Corps officer to advise companies who do business with the United States Government. Mr. Bozman’s practice includes procurement law and public policy, with an emphasis on national security issues. He has successfully represented clients in bid protests at both the GAO and the U.S. Court of Federal Claims.

Mr. Bozman helps companies secure approval from the Committee on Foreign Investment in the United States (“CFIUS”)...

Jennifer Plitsch, Litigation attorney, Covington

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group where her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as litigation, transactional and legislative issues. She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations and Bayh-Dole Act, and has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements CRADAs, Cooperative Agreements, Grants and Small Business Innovation Research agreements.