President Obama’s Federal Procurement Policies

By Lynn Patton Thompson

If President Obama’s first steps into federal procurement policy are any indication, his will be a pro-labor administration. On January 30, 2009, Obama issued Executive Orders he believes will "level the playing field for workers and the unions that represent their interests". One Executive Order requires successor service contractors to hire employees of the predecessor contractor and another requires contractors to notify their employees that they have the right to unionize and bargain collectively. A third Executive Order prevents federal contractors from being reimbursed for expenses incurred for efforts intended to influence workers’ decisions to form unions or engage in collective bargaining. Failure to comply could result in debarment of a contractor.

The Executive Order requiring successor service contractors to offer a job to the employees of the former contractor does not apply to managerial and supervisory employees. It also does not apply to services contract under the simplified acquisition threshold. However, it would require that employees of the predecessor contractor be given a "right of first refusal" that would be no less then 10 days, that is, the employee would have at least 10 days to decide whether to accept a position with the successor contractor. The primary thrust of the Executive Order is to protect the "rank and file" federal contractor employees.

The Executive Order prohibiting contractor from being reimbursed for expenses incurred to influence workers’ decision concerning unionization is opposed by the U.S. Chamber of Commerce. The Executive Order presumes that the expenses contractors have incurred and which the administration wants to prohibit are expenses discourage unionization. However, the National Labor Relations Act has been interpreted by the Supreme Court to require uninhibited information concerning unionization, which would include information both on the right to unionize and the right not to unionize. The U.S. Chamber of Commerce views this Executive Order as an infringement on employers’ free speech rights.