{ "id": "R41866", "type": "CRS Report", "typeId": "REPORTS", "number": "R41866", "active": false, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 410280, "date": "2012-07-18", "retrieved": "2016-04-07T00:01:02.223831", "title": "Presidential Authority to Impose Requirements on Federal Contractors", "summary": "Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Such executive orders typically cite the President\u2019s constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA). FPASA authorizes the President to prescribe any policies or directives that he considers necessary to promote \u201ceconomy\u201d or \u201cefficiency\u201d in federal procurement.\nThere have been legal challenges to orders (1) encouraging agencies to require the use of project labor agreements; (2) requiring that contracts include provisions obligating contractors to post notices informing employees of their rights not to be required to join a union or pay dues; and (3) directing departments to require contractors to use E-Verify to check the work authorization of their employees. These challenges have alleged, among other things, that the orders were beyond the President\u2019s authority, under FPASA or otherwise. A 2011 draft executive order that would have directed departments to require contractors to \u201cdisclose certain political contributions and expenditures\u201d raised similar and additional questions, as it resembled legislation that was considered, but not enacted, by the 111th Congress. \nThe outcome of legal challenges to particular executive orders pertaining to federal contractors generally depends upon the authority under which the order was issued and whether the order is consistent with or conflicts with other statutes. Courts will generally uphold orders issued under the authority of FPASA so long as the requisite nexus exists between the challenged executive branch actions and FPASA\u2019s goals of economy and efficiency in procurement. Such a nexus may be present when there is an \u201cattenuated link\u201d between the requirements and economy and efficiency, or when the President offers a \u201creasonable and rational\u201d explanation for how the executive order at issue relates to economy and efficiency in procurement. However, particular applications of presidential authority under the FPASA have been found to be beyond what Congress contemplated when it granted the President authority to prescribe policies and directives that promote economy and efficiency in federal procurement. \nSome courts and commentators also have suggested that Presidents have inherent constitutional authority over procurement. A President\u2019s reliance on his constitutional authority, as opposed to the congressional grant of authority under the FPASA, is more likely to raise separation of powers questions. \nIn the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify its intent to grant the President broader authority over procurement, or limit presidential authority to more narrow \u201chousekeeping\u201d aspects of procurement. Congress also could pass legislation directed at particular requirements of executive orders on federal contractors. For example, the 112th Congress enacted legislation that seeks to forestall implementation of any executive order requiring disclosure of contractors\u2019 political contributions and expenditures. Specifically, the National Defense Authorization Act for FY2012 (P.L. 112-81, \u00a7823) prohibited the heads of defense agencies from requiring contractors to submit \u201cpolitical information\u201d related to the contractor, a subcontractor, or any partner, officer, director, or employee thereof, as part of the solicitation or during contract performance. The Consolidated Appropriations Act, 2012 (P.L. 112-74, \u00a7743) similarly barred the use of appropriated funds to \u201crecommend or require\u201d persons submitting offers for federal contracts to disclose political contributions or expenditures.", "type": "CRS Report", "typeId": "REPORTS", "active": false, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R41866", "sha1": "98320588ecba10f2efad5c8e6a790fa08151f4f9", "filename": "files/20120718_R41866_98320588ecba10f2efad5c8e6a790fa08151f4f9.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R41866", "sha1": "ad922652ef365696ef16056b2445a1babf834e5a", "filename": "files/20120718_R41866_ad922652ef365696ef16056b2445a1babf834e5a.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc87183/", "id": "R41866_2012Jan10", "date": "2012-01-10", "retrieved": "2012-07-03T07:51:21", "title": "Presidential Authority to Impose Requirements on Federal Contractors", "summary": "Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. FPASA \r\nauthorizes the President to prescribe any policies or directives that he considers necessary to promote \u201ceconomy\u201d or \u201cefficiency\u201d in federal procurement. There have been legal challenges to orders (1) encouraging agencies to require the use of project labor agreements; (2) requiring that contracts include provisions obligating contractors to post notices informing employees of their rights not to be required to join a union or pay dues; and (3) directing departments to require contractors to use E-Verify to check the work authorization of their employees. In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify its intent to grant the President broader authority over procurement, or limit presidential authority to more narrow \r\n\u201chousekeeping\u201d aspects of procurement. Congress also could pass legislation directed at particular requirements of executive orders on federal contractors. For example, the 112th Congress enacted legislation that seeks to forestall implementation of any executive order requiring disclosure of contractors' political contributions and expenditures. Details of these processes are described in this report.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20120110_R41866_29b379da451484cd8428aecd500908c15e311dbe.pdf" }, { "format": "HTML", "filename": "files/20120110_R41866_29b379da451484cd8428aecd500908c15e311dbe.html" } ], "topics": [ { "source": "LIV", "id": "Government contractors", "name": "Government contractors" }, { "source": "LIV", "id": "Public contracts", "name": "Public contracts" }, { "source": "LIV", "id": "Presidential powers", "name": "Presidential powers" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc812828/", "id": "R41866_2011Jun14", "date": "2011-06-14", "retrieved": "2016-03-19T13:57:26", "title": "Presidential Authority to Impose Requirements on Federal Contractors", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20110614_R41866_f498b1958e60f45f28399d7e35715a02d20035f7.pdf" }, { "format": "HTML", "filename": "files/20110614_R41866_f498b1958e60f45f28399d7e35715a02d20035f7.html" } ], "topics": [] } ], "topics": [ "Appropriations", "Constitutional Questions", "National Defense" ] }