A few weeks ago, I wrote about a bid protest decision in which the Government Accountability Office denied the protest of an offeror whose proposal was rejected due to the lack of a proper Project Labor Agreement (“PLA”). Just last week, the GAO issued another PLA-related bid protest decision in which it rejected the protest of an offeror who had argued that the Government had improperly removed the requirement to submit a PLA for a task order award. This decision hinged on the fact that the solicitation was for a task order that would be awarded under a Multiple Award Task Order Contract (“MATOC”) that, itself, lacked the clauses that mandate the submission of PLAs to compete for task order awards. See Walsh Construction Company II, LLC, GAO B-423075.2 (Feb. 20, 2025).

Truth be told, these bid protest decisions are seeming a bit academic at this point. Why? Because President Biden’s Executive Order (No. 14063, signed on February 4, 2022) mandating the use of PLAs for major construction projects (i.e., projects in excess of $35 million) is on life support given a number of severe blows inflicted in the last few weeks. The Executive Order can be found in the Federal Register at 87 FR 7363 and is posted online here: https://www.federalregister.gov/documents/2022/02/09/2022-02869/use-of-project-labor-agreements-for-federal-construction-projects.

The initial, and perhaps deadliest blow, came when the Court of Federal Claims, in bid protests filed in connection with a number of solicitations, held that the inclusion of clauses mandating the use of PLAs violated competition requirements in several respects. See MVL USA, Inc. v. United States, Case Nos. 24-1057, et al. (Fed. Cl. Jan. 21, 2025) . First, it held that inclusion of the PLA mandate was arbitrary and capricious based solely on the Executive Order when market research showed that the PLA mandate was anticompetive. Second, the record was rife with examples of non-PLA offerors excluded solely because they did not enter a PLA when that requirement had no performance-related significance to the procurement. Third, the Court held that the Government lacked authority to abandon the obligation to conduct procurements with full and open competition – the Executive Order and the implementing regulations, in the Court’s view, did not constitute the “express statutory authority” to limit competition.

Since then, the Departments of Defense and Veterans Affairs issued class deviations waiving the requirement to require PLAs on any of their agencies’ solicitations and further directing that the requirement be removed from any existing procurements. See VA Class Deviation here . You can find the DoD class deviation here . The General Services Administration issued a class “exception” (download available here) waiving the PLA requirement for Land Port of Entry projects under the purview of the Public Building Service.

Presently, President Biden’s Executive Order hasn’t been rescinded and no other class deviations have been issued by other civilian agencies. However, I have to think that other agencies will follow suit soon given the COFC’s determination that the PLA Executive Order was an unauthorized breach of the general statutory obligation to conduct procurements with full and open competition.

I expect that the MVL decision and the class deviations could inject some chaos into existing procurements for major construction projects. Surely at the time the deviations were issued some contractors already had entered into PLAs in anticipation of submitting their bids for a project with a looming deadline. Other offerors may not have yet inked their PLA deals for the same project. While I haven’t researched this, I would expect that the PLA-bound contractors will have to honor those PLAs if they receive an award even though the requirement for a PLA was stricken from the contract. This might confer a significant competitive advantage on those offerors that hadn’t signed on to PLAs because their labor costs might be reduced.

I have no answers about how this conundrum should be resolved. But it seems to me that there could be some unfairness inflicted as a consequence of this contractual about face. In the meantime, prospective offerors need to keep track of existing or future class deviations that would remove PLA requirements from ongoing procurements and assess whether the solicitation’s terms are compliant with the class deviation.