Contractors may be required to perform background checks on all employees working on federal jobsites that are funded by the Environmental Protection Agency if an amendment to the EPA Acquisition Regulation is finalized. Announced in the January 22 issue of the Federal Register, the proposal was made to increase national security on federal projects and thwart any possible terrorist activity.
Many construction organizations, however, have opposed the proposal and its stipulation that contractors be responsible for “suitability determinations” for employees. The Associated Builders and Contractors sent official comments on the proposal to EPA March 24, stating that such a regulation could lead to the loss of contracts and expose contractors to liability. ABC stated that although the association supports the concept of background checks, the government should conduct suitability determinations, not contractors. The organization worries that because the process is subjective, contractors may be held liable if EPA finds faults with their determination.
“EPA wants contractors to determine suitability by assessing whether or not each individual presents ‘an undue risk to the interests of the government and the national security,'” said Michael Pearlstein, ABC spokesman. “EPA, however, has failed to define or provide sufficient guidance as to what would constitute such an undue risk.”
Much of the opposition roots from the fear the proposal could prevent contractors from working on federal sites because of technicalities or difficulties with third-party background checks. ABC is concerned that contractors may be held liable for the errors or omissions of third parties that perform the background checks. To avoid this problem, the ABC suggested EPA conduct the background checks itself or provide liability exclusion to contractors who make suitability determinations.