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I was recently asked by a customer whether we could require prospective contractors to hire union labor. I haven't been able to find anything definitively stating the answer, but my instincts say the answer is "no".  This is based on the existence of the FAR Part 22 guidance on collective bargaining agreements (CBA).  If we could require contractors to hire union labor, why wouldn't we just say that instead of (or perhaps in addition to) requiring new contractors to honor the incumbent's wage rates?  Then again, if requiring a CBA or union labor isn't explicitly prohibited, might it be allowable?

Does anyone have any insight on this matter?

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My recollection is that DoE requires the use of specific union labor by contractors working on DoE's nuclear facilities.  The reason given is that the union has a training program that is necessary for work on the unique facilities.

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5 hours ago, Itinerant CO said:

I was recently asked by a customer whether we could require prospective contractors to hire union labor.Does anyone have any insight on this matter?

I assume the interest is academic. If you wish to try mandating only labor union member workers in a solicitation/contract requirement, suggest you contact the agency attorney. This labor relations topic is controversial, political and changeable. See, President Bush's Executive Order 13202 ("anti" FAR 22.5 Project Labor Agreements) at https://www.govinfo.gov/content/pkg/WCPD-2001-02-26/pdf/WCPD-2001-02-26-Pg309.pdf . And, President Obama's Executive Order 13502, which replaced 13202 ("pro"-Project Labor Agreements) at http://thetruthaboutplas.com/wp-content/uploads/2009/06/signed-executive-order-13502-feb-6-2009.pdf  

Question for your customer. When would it be appropriate for the federal government to require only union members or only non-union members in a project funded by the taxpayers? (Perhaps may violate the National Labor Relations Act and/or the equal protection clause of the 14th Amendment to the U.S. Constitution?) 

I do not know at this time where, if anywhere, you will find a regulation right on point in specifically answering your question, "yes you may" or "no, you may not."

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10 hours ago, Vern Edwards said:

What would be the justification?

What would be the response if someone challenged the requirement as unduly restrictive of competition?

Why would the government require union labor?

See FAR 22.5 

“Subpart 22.5 - Use of Project Labor Agreements for Federal Construction Projects

22.501 Scope of subpart.

22.502 Definitions.

22.503 Policy.

22.504 General requirements for project labor agreements.

22.505 Solicitation provision and contract clause.

Parent topic: Part 22 - Application of Labor Laws to Government Acquisitions”


Applicable to large scale construction projects equal to or exceeding $25 million.

See 22.503 Policy:

“ ...(a) Project labor agreements are a tool that agencies may use to promote economy and efficiency in Federal procurement. ****  Pursuant to Executive Order 13502, agencies are encouraged to consider requiring the use of project labor agreements in connection with large-scale construction projects.”

I did not see where President Trump superseded B. Obama’s Executive Order, which I believe reinstated B. Clinton’s original executive order to require use of PLA’s.   G. Bush had superseded Clinton’s EO with an open competition executive order.

**** Ha Ha Ha Ha Ha Ha (B.S.)...

 

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The above is only a response to Vern’s questions.  It has a very specific application to certain construction projects and is directed at agencies, not individual contracting offices.

It doesn’t apply to service contracts, which may be the OP’s area of interest for this discussion thread. 

I found a September 2016 DoD DPAP Policy Memorandum (just prior to the 2016 Presidential Election), with guidance for DoD agencies on how to consider using PLA’s on specific construction projects and stating that the DFARS and PGI would be updated in the first quarter of FY2017. However, there is no coverage in the current DFARS or PGI.  

https://www.acq.osd.mil/dpap/policy/policyvault/USA003701-16-DPAP.pdf

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See FAR 22.101, Labor relations.

It's appropriate to be interested in offerors' labor relations, more so on some jobs than others. But requiring that a contractor hire union labor? I think that's above a CO's pay grade. It strikes me as bordering on a political decision. Any consideration of proceeding with such a requirement should be vetted by lawyers and reviewed and approved by (much) higher-ups.

 

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2 hours ago, Vern Edwards said:

See FAR 22.101, Labor relations.

It's appropriate to be interested in offerors' labor relations, more so on some jobs than others. But requiring that a contractor hire union labor? I think that's above a CO's pay grade. It strikes me as bordering on a political decision. Any consideration of proceeding with such a requirement should be vetted by lawyers and reviewed and approved by (much) higher-ups.

 

Agreed.   With no intent to complicate a Beginners Forum thread when such issues are raised I have always been intrigued by the views by "customers".   By example I wonder if the same "customer" appreciates the micro purchase level for service and construction needs?   And just for a history lesson this might further the interest of the OP and the "customer".

https://www.dol.gov/general/aboutdol/history/dolorigabridge

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On 2/22/2021 at 11:45 AM, Itinerant CO said:

I was recently asked by a customer whether we could require prospective contractors to hire union labor. I haven't been able to find anything definitively stating the answer, but my instincts say the answer is "no".  This is based on the existence of the FAR Part 22 guidance on collective bargaining agreements (CBA).  If we could require contractors to hire union labor, why wouldn't we just say that instead of (or perhaps in addition to) requiring new contractors to honor the incumbent's wage rates?  Then again, if requiring a CBA or union labor isn't explicitly prohibited, might it be allowable?

Does anyone have any insight on this matter?

ICO, did you get an answer herein? Is this for construction or something else? 

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@joel hoffman

I did, thank you! Vern's original questions were similar to what I was asking myself when I was first approached (it also tasted a bit political to me), but since it wasn't in reference to any particular requirement, I felt at a loss to ask meaningful probing questions.  That was also why I thought to turn to policy to see if it was allowable under any circumstances.  

Thanks to everyone for offering your input on this!

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