WASHINGTON, D.C – The National Chicken Council (NCC), National Turkey Federation (NTF) and U.S. Poultry & Egg Association (USPOULTRY) in comments submitted January 30, 2012, expressed opposition to a proposed amendment to the U.S. Department of Agriculture’s (USDA) acquisition regulations.
The amendment, which was published as a proposed rule in the Federal Register on December 1, 2011, would add new sections to existing USDA procurement regulations and would require federal contractors to certify to USDA that they, all their subcontractors at any tier, and suppliers are in compliance with all federal labor laws. The proposed rule also would require federal contractors to report promptly to contracting officers when formal allegations or formal findings of non-compliance with labor laws are determined.
In expressing the poultry industry’s opposition, NCC, NTF and USPOULTRY said in their official comments that the proposed rule “is inconsistent with existing laws and will impose a regulatory burden and potential liability on federal contractors disproportionate to its purported benefits, which at best duplicate existing legal responsibilities and, at worst, expose contractors to uncontrollable liability, while denying U.S. taxpayers their money’s worth in federal acquisitions.”
The groups noted there is no express statutory authorization for the proposed rule andlisted several other specific concerns for opposing the rule, among them:
- Federal contractors would be required to report all violations and allegations of violations of all labor laws, as well as determinations by courts or agencies. This offends the Due Process clause and the Fifth Amendment to the U.S. Constitution.
- The proposed rule offends constitutional free-speech protections, if the employer’s speech is alleged to violate labor law, as when an employer exercises its rights under the National Labor Relations Act (NLRA) to inform employees about the disadvantages to union representation during an organization campaign.
- The proposed rule makes contractors vulnerable to groundless allegations, giving potential accusers leverage over their employers. An accuser could subject a contractor to liability for failure to report, or repercussions for reporting, a “violation” even if the accuser knows the claim ultimately will prove false.
- The proposed rule is inconsistent with the Competition in Contracting Act of 1984.
- The proposed rule would impose significant recordkeeping and reporting burdens on contractors.
- Contractors could face serious liability under the False Claims Act for conspiracy, including treble damages and attorneys’ fees, for what could amount to no more than a failure to certify and report matters that already will have been made known to federal enforcement agencies such as the NLRB or the EEOC.
- The proposed rule places unacceptable and extraordinary administrative burdens on an overworked federal acquisition workforce.
- The proposed rule does not comply with the Regulatory Flexibility Act (RFA), the Paperwork Reduction Act, or the Unfunded Mandates Reform Act of 1995.
“This amendment should be withdrawn,” the comments concluded. “Alternatively, USDA should conduct a full notice-and-comment proceeding, including public hearings, to develop the public record before this regulation is adopted. NCC, NTF and USPOULTRY are confident that, if the public understands the full implications of the proposed rule change, this amendment will not be adopted.”
A full copy of the comments is available here.