FAR Council’s Modified E-Verify/Basic Pilot Mandate Suspended
In November of last year, the FAR Council published a final rule mandating a new modified
version of the E-Verify/Basic Pilot program on federal contractors and subcontractors. (See 73
Fed. Reg. 67,651 (Nov. 14, 2008).) The modified version of the E-Verify/Basic Pilot program
required reverification of the workforce and created some vicarious liability for subcontractors.
Three areas that the Chamber successfully fought for during the 110th Congress included
opposing vicarious liability for subcontractors, opposing the reverification of the workforce, and
supporting a phased in of any mandatory electronic employment verification program.
The new rule was scheduled to become effective on January 15, 2009. After listening to its
members’ concerns, the Chamber spearheaded a legal challenge to this badly thought-out rule
and requested from the government an agreement to suspend application of the rule until we
obtain a final decision from the U.S. District Court. Our leading legal argument is that the
Administration exceeded its authority by attempting to use the procurement process to mandate a
program that Congress explicitly made voluntary. (See Chamber of Commerce of the United
States of America, et al. v. Michael Chertoff, et al., Civil Action No. AW-08-3444 (D. Md.).)
Allowing the use of the procurement process in this manner would set a hazardous precedent
expanding way beyond the immigration law arena.
Yesterday, the litigants reached an accord where the government agreed to suspend applicability
of the rule until February 20, 2009. Thus, solicitations that occur prior to February 20, 2009,
would not contain the contract clauses that the rule would impose. An announcement of the
suspension should appear in the Federal Register early next week. In the meantime, the
Plaintiffs will soon be filing a Motion for Summary Judgment.
The Chamber wants to acknowledge and thank its friends and partners in the business
community that joined in this fight