Federal Executive Order

Talking Points on President Bush's Executive Order on PLAs

On February 17, 2001, President George W. Bush signed Executive Order No. 13202, "Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects."

• This Executive Order declares that neither the federal government, nor any agency acting with federal assistance, shall require or prohibit construction contractors to sign union agreements as a condition of performing work on government construction projects. The Executive Order puts an end to government-mandated union-only PLAs on federal construction projects, as well as federally-funded or assisted projects.
  
  
• President Bush has correctly recognized that the government's proper role is to promote and ensure open competition on government projects, while maintaining government neutrality towards construction contractors' labor relations. In this way, the government can reduce construction costs, expand job opportunities and prevent unfair discrimination based upon labor affiliation or non-affiliation.
  
  
• The Executive Order is a great victory for principles long supported by America's free enterprise system - that construction work should be awarded and performed on the basis of merit through open competition, without favoritism to special interest groups. The Bush Order revokes the policies of the Clinton Administration that encouraged government agencies to adopt union-only requirements on government construction projects.
  
  
• The Executive Order took effect immediately upon its issuance on February 17, 2001, and applies to all contracts awarded after that date. On April 6, 2001, the Bush Administration issued an amendment to the Executive Order, which exempts from the Executive Order any project which had been awarded and implemented with a PLA.
  
  
• The Bush Order contains 11 sections, but the heart is in the first two sections:
  
  
  • Section 1 orders all federal agencies to ensure that neither they nor any construction manager acting on their behalf shall require or prohibit bidders, offerors, contractors or subcontractors to enter into or adhere to agreements with any labor organization, or otherwise discriminate against anyone on this ground.
  
  
  
  • Section 2 further requires all federal agencies to ensure that no union-only requirements are a condition of award for any contracts awarded pursuant to federal grants, federally assisted projects, or federal cooperative agreements.
  
  
  
• The Executive Order also extends to contracts awarded by construction managers acting on behalf of government agencies. Because they are acting on behalf of the government, the Executive Order forbids such construction managers from requiring any contractor or subcontractor to sign a union agreement as a condition of performing government work.
  
  
• At the same time, the Executive Order is careful to state that nothing in its terms prohibits any contractor or subcontractor from voluntarily entering into PLAs or other labor agreements. There is thus no danger of the Executive Order's interfering with labor agreements of private parties protected by the National Labor Relations Act (NLRA).
  
  
• The Executive Order is good news for merit contractors, government contracting officials and taxpayers. No longer will they have to suffer from the increased costs and reduced competition of government-mandated union-only PLAs on federal or federally-funded or assisted construction projects.

Presidential Documents

For Immediate Release
Office of the Press Secretary
February 17, 2001

Executive Order 13202

Preservation of Open Competition and Government
Neutrality Towards Government Contractors' Labor
Relations on Federal and Federally Funded Construction Projects

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 471 et seq., and in order to (1) promote and ensure open competition on Federal and federally funded or assisted construction projects; (2) maintain Government neutrality towards Government contractors= labor relations on Federal and federally funded or assisted construction projects; (3) reduce construction costs to the Federal Government and to the taxpayers; (4) expand job opportunities, especially for small and disadvantaged businesses; and (5) prevent discrimination against Government contractors or their employees based upon labor affiliation or lack thereof; thereby promoting the economical, nondiscriminatory, and efficient administration and completion of Federal and federally funded or assisted construction projects, it is hereby ordered that:

Section 1. To the extent permitted by law, any executive agency awarding any construction contract after the date of this order, or obligating funds pursuant to such a contract, shall ensure that neither the awarding Government authority nor any construction manager acting on behalf of the Government shall, in its bid specifications, project agreements, or other controlling documents:

(a) Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or other related construction project(s); or

(b) Otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related construction project(s).

(c) Nothing in this section shall prohibit contractors or subcontractors from voluntarily entering into agreements described in subsection (a).

Sec. 2. Contracts awarded before the date of this order, and subcontracts awarded pursuant to such contracts, whenever awarded, shall not be governed by this order.

Sec. 3. To the extent permitted by law, any executive agency issuing grants, providing financial assistance, or entering into cooperative agreements for construction projects, shall ensure that neither the bid specifications, project agreements, nor other controlling documents for construction contracts awarded after the date of this order by recipients of grants or financial assistance or by parties to cooperative agreements, nor those of any construction manager acting on their behalf, shall contain any of the requirements or prohibitions set forth in section 1(a) or (b) of this order.

Sec. 4. In the event that an awarding authority, a recipient of grants or financial assistance, a party to a cooperative agreement, or a construction manager acting on behalf of the foregoing, performs in a manner contrary to the provisions of sections 1 or 3 of this order, the executive agency awarding the contract, grant, or assistance shall take such action, consistent with law and regulation, as the agency determines may be appropriate.

Sec. 5. (a) The head of an executive agency may exempt a particular project, contract, subcontract, grant, or cooperative agreement from the requirements of any or all of the provisions of sections 1 and 3 of this order, if the agency head finds that special circumstances require an exemption in order to avert an imminent threat to public health or safety or to serve the national security.

(b) A finding of "special circumstances" under section 5(a) may not be based on the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to, or otherwise do not adhere to, agreements with one or more labor organizations, or concerning employees on the project who are not members of or affiliated with a labor organization.

Sec. 6. (a) The term "construction contract" as used in this order means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property.

(b) The term "executive agency" as used in this order shall have the same meaning it has in 5 U.S.C. 105, excluding the General Accounting Office.

(c) The term "labor organization" as used in this order shall have the same meaning it has in 42 U.S.C. 2000e(d).

Sec. 7. With respect to Federal contracts, within 60 days of the issuance of this order, the Federal Acquisition Regulatory Council shall take whatever action is required to amend the Federal Acquisition Regulation in order to implement the provisions of this order.

Sec. 8. As it relates to project agreements, Executive Order 12836 of February 1, 1993, which, among other things, revoked Executive Order 12818 of October 23, 1992, is revoked.

Sec. 9. The Presidential Memorandum of June 5, 1997, entitled "Use of Project Labor Agreements for Federal Construction Projects" (the "Memorandum"), is also revoked.

Sec. 10. The heads of executive departments and agencies shall revoke expeditiously any orders, rules, regulations, guidelines, or policies implementing or enforcing the Memorandum or Executive Order 12836 of February 1, 1993, as it relates to project agreements, to the extent consistent with law.

Sec. 11. This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it, create any right to administrative or judicial review, or any right, whether substantive or procedural, enforce-able by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE
February 17, 2001

http://www.whitehouse.gov/news/releases/2001/02/20010221.html

For Immediate Release
Office of the Press Secretary
April 6, 2001

Executive Order

Amendment to Executive Order 13202, Preservation of
Open Competition and Government Neutrality Towards
Government Contractors' Labor Relations on Federal
and Federally Funded Construction Projects

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 471 et seq., and in order to (1) promote and ensure open competition on Federal and federally funded or assisted construction projects; (2) maintain Government neutrality towards Government contractors' labor relations on Federal and federally funded or assisted construction projects; (3) reduce construction costs to the Federal Government and to the tax-payers; (4) expand job opportunities, especially for small and disadvantaged businesses; (5) prevent discrimination against Government contractors or their employees based upon labor affiliation or lack thereof; and (6) prevent the inefficiency that may result from the disruption of a previously established contractual relationship in particular cases; thereby promoting the economical, nondiscriminatory, and efficient administration and completion of Federal and federally funded or assisted construction projects, it is hereby ordered that Executive Order 13202 of February 17, 2001, is amended by adding to section 5 of that order the following new subsection:

(c) The head of an executive agency, upon application of an awarding authority, a recipient of grants or financial assistance, a party to a cooperative agreement, or a construction manager acting on behalf of the foregoing, may exempt a particular project from the requirements of any or all of the provisions of sections 1 and 3 of this order, if the agency head finds: (i) that the
awarding authority, recipient of grants or financial assistance,
party to a cooperative agreement, or construction manager acting on behalf of the foregoing had issued or was a party to, as of the date of this order, bid specifications, project agreements, agreements with one or more labor organizations, or other controlling documents with respect to that particular project, which contained any of the requirements or prohibitions set forth in sections 1(a) or (b) of this order; and (ii) that one or more construction contracts subject to such requirements or prohibitions had been awarded as of the date of this order.

GEORGE W. BUSH

THE WHITE HOUSE
April 6, 2001

http://www.whitehouse.gov/news/releases/2001/04/print/20010406-1.html