Eleventh Cir. to Weigh Trump Defense of Biden Project Labor Rule

The Trump administration will mount a rare defense of a Biden-era policy Friday, standing by a requirement that large federal construction efforts use union project labor agreements.

Attorneys for the federal government will ask the US Court of Appeals for the Eleventh Circuit to keep the 2024 project labor agreement rule in place, rebutting a lawsuit brought by a contracting trade organization representing Florida-based firms.

The decision to maintain the PLA rule came as a surprise to industry construction groups, given the President Donald Trump’s early cancellations of other wage and affirmative action requirements for those doing business with the federal government.

The approach has created confusion and hesitation among businesses attempting to read the administration’s moves on procurement issues, attorneys representing current and potential federal contractors say.

“It’s not necessarily easy to pin down or predict the Trump administration’s approach to Procurement Act authority,” said Ken Kanzawa, government contracts counsel at Seyfarth Shaw LLP.

Federal contractors are going to have to remain nimble, added Lauren Hicks of Ogletree Deakins.

“They can anticipate more changes now and in the future, unless the courts significantly narrow rights of the executive branch under the Procurement Act,” she said.

Procurement Act

The Eleventh Circuit will consider whether President Joe Biden was allowed in 2022 to issue an executive order directing the federal government to require pre-hire union pacts on federal construction projects valued at over $35 million.

Construction contractors say that order, and the rule subsequently issued by the General Services Administration to implement the policy in 2023, was an illegal overreach of power that went beyond the authority provided to the president under the Procurement Act.

The argument is similar to the ones lodged by business groups and Republicans against other requirements issued under the Federal Property and Administrative Services Act or the Procurement Act, including the now-defunct Biden-era $15 minimum wage for contractors and Executive Order 11246, the latter of which established most of the Office of Federal Contract Compliance Programs’ audit and enforcement powers.

Federal appellate courts split over whether Biden had the ability to issue the $15 minimum wage for federal contractors, a question the Supreme Court ultimately declined to take up. Trump revoked the executive order establishing the $15 wage floor shortly after taking office.

Supporters of stricter procurement requirements have argued that the Procurement Act gives the president broad discretion to issue policies he considers necessary to promote “economy and efficiency” in the federal procurement process, an argument now being picked up by the Trump administration.

“Courts have long understood the Act to provide the President with broad and flexible authority to issue directives he regards as advancing economy and efficiency in federal procurement,” attorneys for the federal government wrote in briefs to the Eleventh Circuit. “The PLA directive easily passes muster under that standard.”

The Associated Builders and Contractors Florida First Coast Chapter argued that the Procurement Act doesn’t provide a “blank check” to the president and that actions must have a specific link to the language in the statute. The group is requesting that the Eleventh Circuit grant a preliminary injunction to halt implementation of the policy, which the Trump administration has continued to enforce.

Growing Scrutiny

Historically, the courts have interpreted the Procurement Act to provide broad authority to the president, according to Kanzawa. However, judges began placing more scrutiny on the policies issued under the law following the federal government’s efforts to mandate Covid-19 vaccines, he said.

Presidents have frequently used federal contracting as a tool to implement short term policy initiatives, noted Hicks, which has invited legal scrutiny over the bounds of the Procurement Act. Cases like the ABC’s challenge to the PLA mandate could clarify where those lines are, she said.

“Some of this litigation that’s going to play out will help us understand better whether that’s going to be allowed or tolerated by the courts,” Hicks said.

The case is Associated Builders and Contractors Florida First v. General Services Administration, 11th Cir., No. 25-11375, oral argument scheduled for 9/12/25.