The protest consolidated seven challenges brought by offerors on seven different federal projects for the US Army Corps of Engineers, Naval Facilities Engineering Systems Command, and the General Services Administration. Attorneys from Smith Currie Oles acted as lead counsel for three of the seven consolidated matters.

After complex briefing and rigorous oral argument, the court issued a decision holding that the application of FAR Subpart 22.5, requiring that all construction contracts of $35 million or more include a PLA, violates CICA. The court determined that restricting the offeror pool to offerors that execute PLAs with labor organizations did not meet agency-specific needs in any of the challenged procurements. The court further found that there is no statutory exception permitting this blanket restriction of full and open competition. Thus, the automatic requirement to implement a PLA on every large scale construction project violates CICA’s full and open competition requirement.

The court passed on the question of whether the Federal Property and Administrative Services Act (“FPASA”) vests the President with the authority “to issue expansive construction industry labor policies.” Readers may recall that FPASA also served as the basis for a number of controversial Executive Orders related to procurement in the shadow of COVID-19, including the mandate that all contractor personnel working on or in connection with a federal contract be vaccinated.

The court granted the protesters’ requests for injunctive relief. However, the court has allowed the government until February 3, 2025, to file a status report explaining how the agencies will apply the court’s decision to each procurement. Until that time, it remains difficult to predict precisely what impact this decision will have on the challenged procurements.

One thing for certain is that the PLA mandate has not been rescinded and remains in effect for any other large scale construction procurement that was not part of this consolidated protest. If a contractor wishes to object to the PLA requirement in an ongoing solicitation, it generally must do so before the deadline for proposal submission. If and when the new administration rescinds the requirement, the need to protest will be eliminated, but for the time being, this remains a live issue for many contractors.

Attorneys at Smith Currie Oles are ready and able to assist if you have any questions on this topic.