Construction Bills: Recent Changes to Construction Laws

AuthorBy Brian R. Zimmerman and Rowan T. Mason
THE CONSTRUCTION LAWYER 43Volume 42 Issue 1 2022
Published in
The Construction Lawyer
, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Biden Executive Order: Union
Labor for All Federal Projects
Over $35 Million
On February 4, 2022, President
Biden signed the “Executive
Order on Use of Project Labor
Agreements for Federal Con-
struction Projects.”1 Effective
immediately, the order requires
the use of project labor agree-
ments for all federal construction
projects of $35 million or more,
subject to certain authorized
exemptions. The order requires
that union labor be used for all
projects contracted by any fed-
eral agency or department.
Among the reasons cited by
President Biden were “special
challenges to efcient and timely procurement” caused
by the typically temporary nature of nonunion workforces
and labor disputes that arise from projects that mix union
and nonunion workforces.
While Biden’s order is mandatory, it is limited to purely
federal projects—it does not extend to all projects that
include some federal funding. The order is clear that it
applies to any federal agency “awarding any contract,
whereas for projects only receiving federal nancial assis-
tance, the order simply states that such agencies are not
precluded from requiring the use of project labor agree-
ments.2 As a result, labor agreements are not required for
most projects funded by the Infrastructure Investment and
Jobs Act because most projects resulting from this law will
be headed by various states and nonfederal agencies across
the country.
The 2022 order also enumerates certain requirements
for labor agreements to be used on federal projects. The
labor agreements must (a) bind all contractors and sub-
contractors on the project, (b) allow participation by any
bidders regardless of afliation with other collective bar-
gaining agreements, (c) prohibit strikes and lockouts, (d)
contain binding labor dispute resolution provisions, (e)
contain labor-management cooperation mechanisms, and
(f) comply with all statutes, regulations, executive orders,
and Presidential Memoranda.3
The order grants agencies a limited number of discre-
tionary exemptions for projects over $35 million. The rst
such exemption occurs where the agency determines it is in
the best interest of the federal government to avoid a proj-
ect labor agreement based on a series of “factors.” These
factors include projects that (a) are fast and noncomplex,
(b) include only one craft or trade, (c) involve specialized
construction from a limited pool of bidders, or (d) involve
an unusual and compelling urgency.
Agencies can also
exempt themselves through a market analysis showing that
such an order would reduce potential bidders to the point
that it would “frustrate full and open competition.”5
Initial reaction from some industry groups was in signif-
icant part, negative. On February 15, 2022, a group of 16
trade associations sent a letter to President Biden criticizing
the executive order.6 The letter stated that the order would
dampen the impact of the recent infrastructure explanation
and lessen the reach of tax dollars committed to federal
projects. The letter further cited statistics showing that
since a prior 2009 order encouraging labor agreements,
agencies had chosen to mandate them on just 12 out of
over 2,000 large-scale projects.7 The group also claimed
that studies have found that mandating labor agreements
typically increases project costs between 12 percent to 20
Court challenges to the order may be forthcoming. Pres-
ident Biden’s order was explicitly premised on authority
under the Federal Property and Administrative Services
Act, 40 U.S.C. §101 et seq.9 This was the same author-
ity cited as support for Executive Order 14,042, which
required COVID policy compliance for all federal contrac-
tors, including employee vaccine mandates.
That executive
order has since been enjoined nationwide on the basis that
the order likely exceeded the authority granted by the Fed-
eral Property and Administrative Services Act.
the vaccine policy challenge is not fully resolved (with an
appeal pending), and applicability of the same logic to the
order on project labor agreements is unclear, court action
in the near future is a possibility.
1. Exec. Order No. 14,063, 87 Fed. Reg. 7363 (Feb. 9, 2022).
2. Id. § 4.
3. Id. § 5(a).
4. Id. § 5(b).
5. See, e.g., Letter from SBE Council, Coalition Letter to
President Biden Opposing Infrastructure Executive Order (EO)
on Project Labor Agreements (Feb. 15, 2022), https://sbecouncil.
6. Id.
7. Id.
8. Exec. Order No. 14,063.
9. See Exec. Order No. 14,042, 86 Fed. Reg. 50,985 (Sept. 9,
10. Georgia v. Biden, No. 1:21-CV-163, 2021 WL 5779939, at
*9 (S.D. Ga. Dec. 7, 2021).
Rowan T. Mason
Brian R. Zimmerman
By Rowan T. Mason and Brian R. Zimmerman

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