On February 17, 2022, the United States Department of Agriculture (USDA) published a Notice of Proposed Rulemaking updating USDA’s Agriculture Acquisition Regulation (AGAR), the agency’s counterpart to the Federal Acquisition Regulation (FAR). In the proposed rulemaking, USDA included a requirement to add two new clauses that would revive and expand the Obama-era “blacklist rule” requiring contractors to disclose violations of certain labor and employment laws, and certify compliance with labor laws during the term of the contract.
USDA’s new AGAR regulation requires the agency to include two clauses in every supply and service (including construction) acquisition above the simplified acquisition threshold. The first clause, entitled “Labor Law Violations,” requires the contractor to certify compliance with 15 specified labor laws, and equivalent state-law enactments, and promptly report to the contracting officer any future adjudications of noncompliance. Contractors must also certify, to the best of their knowledge, that their subcontractors and suppliers are in compliance with the specified laws. Under the clause, these certifications may give rise to False Claims Act liability if untrue. The second clause, entitled “Past Performance Labor Law Violations,” requires contractors submitting offers to certify that they and any subcontractors are in compliance with all previously required corrective actions for adjudicated labor law violations, and to provide a list of any...
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