Federal Acquisition Regulation; Equal Opportunity for Veterans, 60249-60254 [2010-24218]
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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations
74 FR 52856 on October 14, 2009, to a
final rule with minor changes.
This final rule amends the FAR to
implement section 814 of the John
Warner National Defense Authorization
Act for Fiscal Year 2007 and section 867
of the Duncan Hunter 2009 National
Defense Authorization Act for Fiscal
Year 2009. This rule requires agencies
to—
(1) Link award fees to acquisition
objectives in the areas of cost, schedule,
and technical performance;
(2) Clarify that a base fee amount
greater than zero may be included in a
cost-plus-award-fee type contract at the
discretion of the contracting officer;
(3) Prescribe narrative ratings that will
be utilized in award-fee evaluations;
(4) Prohibit the issuance of award fees
for a rating period if the contractor’s
performance is judged to be below
satisfactory;
(5) Conduct a risk and cost-benefit
analysis and consider the results of the
analysis when determining whether to
use an incentive-fee type contract or
not;
(6) Include specific content in the
award-fee plans; and
(7) Prohibit the rolling over of
unearned award fees to subsequent
rating periods.
This FAR change will integrate where
appropriate, FAR part 7, Acquisition
Planning, and FAR part 16, Contract
Types, to improve agency use and
decision making when using incentive
contracts.
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Item V—Offering a Construction
Requirement—8(a) Program (FAR Case
2009–020)
This final rule amends the FAR to
revise FAR subpart 19.8, Contracting
with the Small Business Administration
(The 8(a) Program), specifically FAR
19.804–2(b) to conform to the Small
Business Administration (SBA)
regulations. The SBA regulation 13 CFR
124.502(b)(2) requires that the offering
letter for an open construction
requirement be submitted to the SBA
District Office for the geographical area
where the work is to be performed. The
SBA regulation 13 CFR 124.502(b)(3)
requires that the offering letter for a
construction requirement offered on
behalf of a specific participant be
submitted to the SBA District Office
servicing that concern. This rule revises
FAR 19.804–2 accordingly.
Item VI—Encouraging Contractor
Policies To Ban Text Messaging While
Driving (FAR Case 2009–028) (Interim)
This interim rule amends the FAR to
implement Executive Order 13513,
entitled ‘‘Federal Leadership on
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Reducing Text Messaging while
Driving,’’ which was issued on October
1, 2009 (74 FR 51225, October 6, 2009).
Section 4 of the Executive order requires
each Federal agency, in procurement
contracts, entered into after the date of
the order, to encourage contractors and
subcontractors to adopt and enforce
policies that ban text messaging while
driving company-owned or -rented
vehicles or Government-owned
vehicles; or privately-owned vehicles
when on official Government business
or when performing any work for or on
behalf of the Government. Section 4 also
requires Federal agencies to encourage
contractors to conduct initiatives such
as establishment of new rules and
programs or re-evaluation of existing
programs to prohibit text messaging
while driving, and education,
awareness, and other outreach programs
to inform employees about the safety
risks associated with texting while
driving. This requirement applies to all
solicitations and contracts. Contracting
officers are encouraged to modify
existing contracts to include the FAR
clause.
Item VII—Buy American Exemption for
Commercial Information Technology—
Construction Material (FAR Case 2009–
039) (Interim)
This interim rule implements section
615 of Division C, Title VI, of the
Consolidated Appropriations Act, 2010
(Pub. L. 111–117). Section 615
authorizes exemption from the Buy
American Act for acquisition of
information technology that is a
commercial item.
Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
[FR Doc. 2010–24217 Filed 9–28–10; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 22, and 52
[FAC 2005–46; FAR Case 2009–007; Item
I; Docket 2010–0101, Sequence 1]
RIN 9000–AL67
Federal Acquisition Regulation; Equal
Opportunity for Veterans
Department of Defense (DoD),
General Services Administration (GSA),
AGENCY:
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60249
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are issuing an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement
Department of Labor (DoL) regulations
on equal opportunity provisions for
various categories of military veterans.
This rule sets forth revised coverage and
definitions of veterans covered under
the Vietnam Era Veterans’ Readjustment
Assistance Act of 1972 (VEVRAA) and
includes new reporting requirements
established under the VEVRAA and the
Jobs for Veterans Act (JVA).
DATES: Effective Date: September 29,
2010.
Applicability date: Contracting
officers may modify existing contracts of
$100,000 or more that were awarded or
modified on or after December 1, 2003,
to require the use of the new VETS–
100A form starting with the report filed
September 30, 2010.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
November 29, 2010 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–46, FAR Case
2009–007, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–007’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2009–007.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and ‘‘FAR
Case 2009–007’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), 1800 F Street, NW., Room
4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–46, FAR Case
2009–007, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
SUMMARY:
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Ernest Woodson, Procurement Analyst,
at (202) 501–3775. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–46, FAR Case 2009–007.
SUPPLEMENTARY INFORMATION:
A. Background
The DoL Office of Federal Contract
Compliance Programs (OFCCP)
published a final rule in the Federal
Register at 72 FR 44393 on August 8,
2007, that implements amendments to
the affirmative action provisions of the
Vietnam Era Veterans’ Readjustment
Assistance Act of 1972 (VEVRAA) as
amended by the Jobs for Veterans Act
(JVA), Public Law 107–288. This final
DoL rule changed the categories of
veterans protected by these laws for
covered Government contracts entered
into or modified on or after December 1,
2003. These changes were published in
41 CFR part 60–300 and specifically
modified the equal opportunity clause
to be included in each covered
Government contract or subcontract.
The JVA amendments eliminated
listing employment openings solely
with America’s Job Bank as an option
for complying with the mandatory job
listing requirement. The final DoL rule
provides that listing employment
openings with the State workforce
agency job bank or with the local
employment service delivery system
where the opening occurs will satisfy
the requirement to list job openings
with the appropriate employment
service delivery system.
The categories of veterans covered by
the equal opportunity provisions
changed to include: Disabled Veterans,
Recently Separated Veterans, Other
Protected Veterans, and Armed Forces
Service Medal Veterans. The JVA
eliminated the separate coverage
category of Vietnam-era veterans;
however, DoL in its rule explained that
many people in this category may be
covered under the other categories. The
JVA expanded the coverage of veterans
with disabilities to all veterans who
were discharged or released from active
duty because of a service-connected
disability.
In addition, the DoL Veterans’
Employment and Training Service
(VETS) published a final rule in the
Federal Register at 73 FR 28710 on May
19, 2008, that further implements the
requirements under the VEVRAA and
the JVA that Government contractors
track and annually report the number of
veteran employees in their workforces.
This final DoL rule adopted a new
Federal Contractor Veterans’
Employment Report, VETS–100A form,
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to be used for reporting the revised
categories of veterans that contractors
are to track and report. These reporting
requirements are published in 41 CFR
part 61–300 and require each covered
contract or subcontract contain the
clause for reporting using the new
VETS–100A form for contracts entered
into or modified on or after December 1,
2003. The new VETS–100A form was
required to be used for the report to be
filed by September 30, 2009.
This interim FAR rule re-titles FAR
subpart 22.13 from ‘‘Special Disabled
Veterans, Veterans of the Vietnam Era,
and Other Eligible Veterans’’ to ‘‘Equal
Opportunity for Veterans.’’ Accordingly,
FAR clause 52.222–35 is also renamed
‘‘Equal Opportunity for Veterans’’ and
incorporates the new categories and
definitions of protected veterans as
established by DoL. In addition, the
FAR clause at 52.222–37, ‘‘Employment
Reports on Special Disabled Veterans,
Veterans of the Vietnam Era, and Other
Eligible Veterans,’’ is renamed
‘‘Employment Reports on Veterans’’ and
the new DoL requirements for using the
VETS–100A report are incorporated.
Lastly, the FAR provision at 52.222–38,
‘‘Compliance with Veterans’
Employment Reporting Requirements,’’
is revised to incorporate new title
references for FAR 52.222–37 and the
new report form VETS–100A.
The interim rule also makes
conforming changes to the lists of FAR
clauses in 52.212–5, 52.213–4, and
52.244–6.
This is a significant regulatory action
and, therefore, was subject to review
under section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
concerning the existing regulations in
parts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAC
2005–46, FAR Case 2009–007) in all
correspondence.
B. Regulatory Flexibility Act
The Councils do not expect this
interim rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because
contractors are already required to
annually track and report their veteran
workforces on the VETS–100 form in
accordance with VEVRAA. This rule
implements a new form, VETS–100A,
that simply includes the revised
categories of veterans for reporting
purposes. Therefore, an Initial
Regulatory Flexibility Analysis has not
been performed. The Councils invite
comments from small business concerns
and other interested parties on the
expected impact of this rule on small
entities.
The Councils will also consider
comments from small entities
List of Subjects in 48 CFR Parts 1, 22,
and 52
Government procurement.
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C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Numbers
1293–0005 and 1215–0072.
D. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary to implement the
Department of Labor (DoL) final rule on
Veterans’ Employment and Training
Service (VETS) published in the Federal
Register at 73 FR 28710 on May 19,
2008, and a DoL final rule, published in
the Federal Register on August 8, 2007,
that implements amendments to the
affirmative action provisions of the
Vietnam Era Veterans’ Readjustment
Assistance Act of 1972 (VEVRAA), as
amended by the Jobs for Veterans Act
(JVA). However, pursuant to 41 U.S.C.
418b and FAR 1.501–3(b), the Councils
will consider public comments received
in response to this interim rule in the
formation of the final rule.
Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 1, 22, and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 1, 22, and 52 continues to read as
follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 1—FEDERAL ACQUISITION
REGULATIONS SYSTEM
1.106
[Amended]
2. Amend section 1.106, in the table
following the introductory text, by
removing from FAR segment 22.13 OMB
■
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Control Number ‘‘1215–0072’’ and
adding ‘‘1293–0005 and 1215–0072’’ in
its place; and adding, in numerical
sequence, FAR segment ‘‘52.222–37’’
and its corresponding OMB Control
Number ‘‘1293–0005’’.
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITION
3. Revise the heading of subpart 22.13
to read as follows:
■
Subpart 22.13—Equal Opportunity for
Veterans
4. Revise sections 22.1300, 22.1301,
and 22.1302 to read as follows:
■
22.1300
Scope of subpart.
This subpart prescribes policies and
procedures for implementing the
following:
(a) The Vietnam Era Veterans’
Readjustment Assistance Act of 1972
(38 U.S.C. 4211 and 4212) (the Act).
(b) The Veterans Employment
Opportunities Act of 1998, Public Law
105–339.
(c) The Jobs for Veterans Act, Public
Law 107–288.
(d) Executive Order 11701, January
24, 1973 (3 CFR, 1971–1975 Comp., p.
752).
(e) The regulations of the Secretary of
Labor (41 CFR part 60–250, part 61–250,
part 60–300, and part 61–300).
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22.1301
Definitions.
As used in this subpart—
Armed Forces service medal veteran
means any veteran who, while serving
on active duty in the U.S. military,
ground, naval, or air service,
participated in a United States military
operation for which an Armed Forces
service medal was awarded pursuant to
Executive Order 12985 (61 FR 1209).
Disabled veteran means—
(1) A veteran of the U.S. military,
ground, naval, or air service, who is
entitled to compensation (or who, but
for the receipt of military retired pay,
would be entitled to compensation)
under laws administered by the
Secretary of Veterans Affairs; or
(2) A person who was discharged or
released from active duty because of a
service-connected disability.
Other protected veteran means a
veteran who served on active duty in
the U.S. military, ground, naval, or air
service, during a war or in a campaign
or expedition for which a campaign
badge has been authorized under the
laws administered by the Department of
Defense.
Qualified disabled veteran means a
disabled veteran who has the ability to
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perform the essential functions of the
employment positions with or without
reasonable accommodation.
Recently separated veteran means any
veteran during the three-year period
beginning on the date of such veteran’s
discharge or release from active duty in
the U.S. military, ground, naval, or air
service.
United States, means the 50 States,
the District of Columbia, Puerto Rico,
the Northern Mariana Islands, American
Samoa, Guam, the U.S. Virgin Islands,
and Wake Island.
22.1302
Policy.
(a) Contractors and subcontractors,
when entering into contracts or
subcontracts subject to the Act, must—
(1) List all employment openings,
with the appropriate employment
service delivery system where the
opening occurs, except for—
(i) Executive and senior management
positions;
(ii) Positions to be filled from within
the contractor’s organization; and
(iii) Positions lasting three days or
less.
(2) Take affirmative action to employ,
advance in employment, and otherwise
treat qualified individuals, including
qualified disabled veterans, without
discrimination based upon their status
as a disabled veteran, recently separated
veteran, other protected veteran, and
Armed Forces service medal veteran, in
all employment practices.
(b) Except for contracts for
commercial items or contracts that do
not exceed the simplified acquisition
threshold, contracting officers must not
obligate or expend funds appropriated
for the agency for a fiscal year to enter
into a contract for the procurement of
personal property and nonpersonal
services (including construction) with a
contractor that has not submitted the
required annual form VETS–100,
Federal Contractor Veterans’
Employment Report (VETS–100 Report
and/or VETS–100A Report), with
respect to the preceding fiscal year if the
contractor was subject to the reporting
requirements of 38 U.S.C. 4212(d) for
that fiscal year.
22.1303
[Amended]
5. Amend section 22.1303 by
removing from paragraph (b) ‘‘Special
Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible’’; and
removing from paragraph (c) ‘‘VETS–100
Report’’ and adding ‘‘VETS–100A
Report’’ in its place.
■ 6. Amend section 22.1304 by revising
the introductory text, and paragraph (a)
to read as follows:
■
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22.1304
60251
Procedures.
To verify if a proposed contractor is
current with its submission of the
VETS–100 and/or the VETS–100A
Report, the contracting officer may—
(a) Query the Department of Labor’s
VETS–100 Database via the Internet at
https://www.vets100.com/login.aspx.
Contracting officer organization, name,
e-mail, telephone, and password
information are required on the
Contracting Officer Registration page to
register for system use.
*
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*
■ 7. Amend section 22.1305 by revising
the introductory text of paragraph (a) to
read as follows:
22.1305
Waivers.
(a) The Director, Office of Federal
Contract Compliance Programs,
Department of Labor, may waive any or
all of the terms of the clause at 52.222–
35, Equal Opportunity for Veterans,
for—
*
*
*
*
*
■ 8. Revise section 22.1306 to read as
follows:
22.1306 Department of Labor notices and
reports.
(a) The contracting officer must
furnish to the contractor appropriate
notices for posting when they are
prescribed by the Deputy Assistant
Secretary of Labor (see https://www.dol.
gov/ofccp/regs/compliance/posters/
ofccpost.htm.
(b) The Act requires contractors and
subcontractors to submit a report at least
annually to the Secretary of Labor
regarding employment of disabled
veterans, recently separated veterans,
other protected veterans, and Armed
Forces service medal veterans, unless all
of the terms of the clause at 52.222–35,
Equal Opportunity for Veterans, have
been waived (see 22.1305). The
contractor and subcontractor must use
form VETS–100A, Federal Contractor
Veterans’ Employment Report, to submit
the required reports (see https://
vets100.vets.dol.gov).
22.1307
[Amended]
9. Amend section 22.1307 by
removing the words ‘‘Special Disabled
Veterans, Veterans of the Vietnam Era,
and Other Eligible’’.
■ 10. Revise section 22.1308 to read as
follows:
■
22.1308
Complaint procedures.
Following agency procedures, the
contracting office must forward any
complaints received about the
administration of the Act to the
Veterans’ Employment and Training
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Service of the Department of Labor, or
to the Director, Office of Federal
Contract Compliance Programs, 200
Constitution Avenue, NW., Washington,
DC 20210, or to any OFCCP regional,
district, or area office or through the
local Veterans’ Employment
Representative or designee, at the local
State employment office. The Director,
Office of Federal Contract Compliance
Programs, is responsible for
investigating complaints.
■ 11. Amend section 22.1309 by
revising the introductory text, and
paragraph (a) to read as follows:
22.1309 Actions because of
noncompliance.
The contracting officer must take
necessary action as soon as possible
upon notification by the appropriate
agency official to implement any
sanctions imposed on a contractor by
the Department of Labor for violations
of the clause at 52.222–35, Equal
Opportunity for Veterans. These
sanctions (see 41 CFR 60–300.66) may
include—
(a) Withholding progress payments;
*
*
*
*
*
■ 12. Amend section 22.1310 by
revising paragraphs (a) and (b) to read
as follows:
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(a)(1) Insert the clause at 52.222–35,
Equal Opportunity for Veterans, in
solicitations and contracts if the
expected value is $100,000 or more,
except when—
(i) Work is performed outside the
United States by employees recruited
outside the United States; or
(ii) The Director, Office of Federal
Contract Compliance Programs, has
waived, in accordance with 22.1305(a)
or the head of the agency has waived,
in accordance with 22.1305(b) all of the
terms of the clause.
(2) If the Director, Office of Federal
Contract Compliance Programs, or the
head of the agency waives one or more
(but not all) of the terms of the clause,
use the basic clause with its Alternate
I.
(b) Insert the clause at 52.222–37,
Employment Reports on Veterans, in
solicitations and contracts containing
the clause at 52.222–35, Equal
Opportunity for Veterans.
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
13. Amend section 52.212–5 by
revising the date of the clause,
paragraphs (b)(24), (b)(26), and (e)(1)(v);
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52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
CONTRACT TERMS AND
CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR
EXECUTIVE ORDERS—COMMERCIAL
ITEMS (SEP 2010)
*
*
*
*
*
(b) * * *
__(24) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212).
*
*
*
*
*
*
*
*
*
*
__(26) 52.222–37, Employment Reports on
Veterans (SEP 2010) (38 U.S.C. 4212).
(e)(1) * * *
(v) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212).
*
*
*
*
*
Alternate II (SEP 2010). * * *
*
*
*
*
*
(e)(1) * * *
(ii) * * *
(E) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212).
*
*
*
*
*
14. Amend section 52.213–4 by
revising the date of the clause, and
paragraphs (a)(2)(vii), (b)(1)(iii) and
(b)(1)(v) to read as follows:
■
22.1310 Solicitation provision and
contract clauses.
■
and the date of Alternate II and
paragraph (e)(1)(ii)(E) of Alternate II to
read as follows:
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
*
*
*
*
TERMS AND CONDITIONS—
SIMPLIFIED ACQUISITIONS (OTHER
THAN COMMERCIAL ITEMS) (SEP
2010)
(a) * * *
(2) * * *
(vii) 52.244–6, Subcontracts for
Commercial Items (SEP 2010).
*
*
*
*
*
(b) * * *
(1) * * *
(iii) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212) (applies
to contracts of $100,000 or more).
*
*
*
*
*
(v) 52.222–37, Employment Reports on
Veterans (SEP 2010) (38 U.S.C. 4212) (applies
to contracts of $100,000 or more).
*
*
*
*
*
15. Revise section 52.222–35 to read
as follows:
■
52.222–35
Equal Opportunity for Veterans.
As prescribed in 22.1310(a)(1), insert
the following clause:
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EQUAL OPPORTUNITY FOR
VETERANS (SEP 2010)
(a) Definitions. As used in this clause—
All employment openings means all
positions except executive and senior
management, those positions that will be
filled from within the Contractor’s
organization, and positions lasting 3 days or
less. This term includes full-time
employment, temporary employment of more
than 3 days duration, and part-time
employment.
Armed Forces service medal veteran means
any veteran who, while serving on active
duty in the U.S. military, ground, naval, or
air service, participated in a United States
military operation for which an Armed
Forces service medal was awarded pursuant
to Executive Order 12985 (61 FR 1209).
Disabled veteran means—
(1) A veteran of the U.S. military, ground,
naval, or air service, who is entitled to
compensation (or who but for the receipt of
military retired pay would be entitled to
compensation) under laws administered by
the Secretary of Veterans Affairs; or
(2) A person who was discharged or
released from active duty because of a
service-connected disability.
Executive and senior management
means—(1) Any employee—
(i) Compensated on a salary basis at a rate
of not less than $455 per week (or $380 per
week, if employed in American Samoa by
employers other than the Federal
Government), exclusive of board, lodging or
other facilities;
(ii) Whose primary duty consists of the
management of the enterprise in which the
individual is employed or of a customarily
recognized department or subdivision
thereof;
(iii) Who customarily and regularly directs
the work of two or more other employees;
and
(iv) Who has the authority to hire or fire
other employees or whose suggestions and
recommendations as to the hiring or firing
and as to the advancement and promotion or
any other change of status of other employees
will be given particular weight; or
(2) Any employee who owns at least a bona
fide 20-percent equity interest in the
enterprise in which the employee is
employed, regardless of whether the business
is a corporate or other type of organization,
and who is actively engaged in its
management.
Other protected veteran means a veteran
who served on active duty in the U.S.
military, ground, naval, or air service, during
a war or in a campaign or expedition for
which a campaign badge has been authorized
under the laws administered by the
Department of Defense.
Positions that will be filled from within the
Contractor’s organization means employment
openings for which the Contractor will give
no consideration to persons outside the
Contractor’s organization (including any
affiliates, subsidiaries, and parent
companies) and includes any openings the
Contractor proposes to fill from regularly
established ‘‘recall’’ lists. The exception does
not apply to a particular opening once an
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employer decides to consider applicants
outside of its organization.
Qualified disabled veteran means a
disabled veteran who has the ability to
perform the essential functions of the
employment positions with or without
reasonable accommodation.
Recently separated veteran means any
veteran during the three-year period
beginning on the date of such veteran’s
discharge or release from active duty in the
U.S. military, ground, naval or air service.
(b) General. (1) The Contractor shall not
discriminate against any employee or
applicant for employment because the
individual is a disabled veteran, recently
separated veteran, other protected veterans,
or Armed Forces service medal veteran,
regarding any position for which the
employee or applicant for employment is
qualified. The Contractor shall take
affirmative action to employ, advance in
employment, and otherwise treat qualified
individuals, including qualified disabled
veterans, without discrimination based upon
their status as a disabled veteran, recently
separated veteran, Armed Forces service
medal veteran, and other protected veteran in
all employment practices including the
following:
(i) Recruitment, advertising, and job
application procedures.
(ii) Hiring, upgrading, promotion, award of
tenure, demotion, transfer, layoff,
termination, right of return from layoff and
rehiring.
(iii) Rate of pay or any other form of
compensation and changes in compensation.
(iv) Job assignments, job classifications,
organizational structures, position
descriptions, lines of progression, and
seniority lists.
(v) Leaves of absence, sick leave, or any
other leave.
(vi) Fringe benefits available by virtue of
employment, whether or not administered by
the Contractor.
(vii) Selection and financial support for
training, including apprenticeship, and onthe-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other
related activities, and selection for leaves of
absence to pursue training.
(viii) Activities sponsored by the
Contractor including social or recreational
programs.
(ix) Any other term, condition, or privilege
of employment.
(2) The Contractor shall comply with the
rules, regulations, and relevant orders of the
Secretary of Labor issued under the Vietnam
Era Veterans’ Readjustment Assistance Act of
1972 (the Act), as amended (38 U.S.C. 4211
and 4212).
(3) The Department of Labor’s regulations
require contractors with 50 or more
employees and a contract of $100,000 or
more to have an affirmative action program
for veterans. See 41 CFR part 60–300, subpart
C.
(c) Listing openings. (1) The Contractor
shall immediately list all employment
openings that exist at the time of the
execution of this contract and those which
occur during the performance of this
contract, including those not generated by
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this contract, and including those occurring
at an establishment of the Contractor other
than the one where the contract is being
performed, but excluding those of
independently operated corporate affiliates,
at an appropriate employment service
delivery system where the opening occurs.
Listing employment openings with the State
workforce agency job bank or with the local
employment service delivery system where
the opening occurs shall satisfy the
requirement to list jobs with the appropriate
employment service delivery system.
(2) The Contractor shall make the listing of
employment openings with the appropriate
employment service delivery system at least
concurrently with using any other
recruitment source or effort and shall involve
the normal obligations of placing a bona fide
job order, including accepting referrals of
veterans and nonveterans. This listing of
employment openings does not require hiring
any particular job applicant or hiring from
any particular group of job applicants and is
not intended to relieve the Contractor from
any requirements of Executive orders or
regulations concerning nondiscrimination in
employment.
(3) Whenever the Contractor becomes
contractually bound to the listing terms of
this clause, it shall advise the State workforce
agency in each State where it has
establishments of the name and location of
each hiring location in the State. As long as
the Contractor is contractually bound to these
terms and has so advised the State agency,
it need not advise the State agency of
subsequent contracts. The Contractor may
advise the State agency when it is no longer
bound by this contract clause.
(d) Applicability. This clause does not
apply to the listing of employment openings
that occur and are filled outside the 50
States, the District of Columbia, Puerto Rico,
the Northern Mariana Islands, American
Samoa, Guam, the U.S. Virgin Islands, and
Wake Island.
(e) Postings. (1) The Contractor shall post
employment notices in conspicuous places
that are available to employees and
applicants for employment.
(2) The employment notices shall—
(i) State the rights of applicants and
employees as well as the Contractor’s
obligation under the law to take affirmative
action to employ and advance in
employment qualified employees and
applicants who are disabled veterans,
recently separated veterans, Armed Forces
service medal veterans, and other protected
veterans; and
(ii) Be in a form prescribed by the Director,
Office of Federal Contract Compliance
Programs, and provided by or through the
Contracting Officer.
(3) The Contractor shall ensure that
applicants or employees who are disabled
veterans are informed of the contents of the
notice (e.g., the Contractor may have the
notice read to a visually disabled veteran, or
may lower the posted notice so that it can be
read by a person in a wheelchair).
(4) The Contractor shall notify each labor
union or representative of workers with
which it has a collective bargaining
agreement, or other contract understanding,
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60253
that the Contractor is bound by the terms of
the Act and is committed to take affirmative
action to employ, and advance in
employment, qualified disabled veterans,
recently separated veterans, other protected
veterans, and Armed Forces service medal
veterans.
(f) Noncompliance. If the Contractor does
not comply with the requirements of this
clause, the Government may take appropriate
actions under the rules, regulations, and
relevant orders of the Secretary of Labor. This
includes implementing any sanctions
imposed on a contractor by the Department
of Labor for violations of this clause (52.222–
35, Equal Opportunity for Veterans). These
sanctions (see 41 CFR 60–300.66) may
include—
(1) Withholding progress payments;
(2) Termination or suspension of the
contract; or
(3) Debarment of the contractor.
(g) Subcontracts. The Contractor shall
insert the terms of this clause in subcontracts
of $100,000 or more unless exempted by
rules, regulations, or orders of the Secretary
of Labor. The Contractor shall act as specified
by the Director, Office of Federal Contract
Compliance Programs, to enforce the terms,
including action for noncompliance.
(End of clause)
Alternate I (Dec 2001). As prescribed
in 22.1310(a)(2), add the following as a
preamble to the clause:
Notice: The following term(s) of this
clause are waived for this contract:
llllllllllll [List term(s)].
16. Revise section 52.222–37 to read
as follows:
52.222–37
Veterans.
Employment Reports on
As prescribed in 22.1310(b), insert the
following clause:
EMPLOYMENT REPORTS ON
VETERANS (SEP 2010)
(a) Definitions. As used in this clause,
‘‘Armed Forces service medal veteran,’’
‘‘disabled veteran,’’ ‘‘other protected veteran,’’
and ‘‘recently separated veteran,’’ have the
meanings given in the Equal Opportunity for
Veterans clause 52.222–35.
(b) Unless the Contractor is a State or local
government agency, the Contractor shall
report at least annually, as required by the
Secretary of Labor, on—
(1) The total number of employees in the
contractor’s workforce, by job category and
hiring location, who are disabled veterans,
other protected veterans, Armed Forces
service medal veterans, and recently
separated veterans.
(2) The total number of new employees
hired during the period covered by the
report, and of the total, the number of
disabled veterans, other protected veterans,
Armed Forces service medal veterans, and
recently separated veterans; and
(3) The maximum number and minimum
number of employees of the Contractor or
subcontractor at each hiring location during
the period covered by the report.
(c) The Contractor shall report the above
items by completing the Form VETS–100A,
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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations
entitled ‘‘Federal Contractor Veterans’
Employment Report (VETS–100A Report).’’
(d) The Contractor shall submit VETS–
100A Reports no later than September 30 of
each year.
(e) The employment activity report
required by paragraphs (b)(2) and (b)(3) of
this clause shall reflect total new hires, and
maximum and minimum number of
employees, during the most recent 12-month
period preceding the ending date selected for
the report. Contractors may select an ending
date—
(1) As of the end of any pay period
between July 1 and August 31 of the year the
report is due; or
(2) As of December 31, if the Contractor has
prior written approval from the Equal
Employment Opportunity Commission to do
so for purposes of submitting the Employer
Information Report EEO–1 (Standard Form
100).
(f) The number of veterans reported must
be based on data known to the contractor
when completing the VETS–100A. The
contractor’s knowledge of veterans status
may be obtained in a variety of ways,
including an invitation to applicants to selfidentify (in accordance with 41 CFR 60–
300.42), voluntary self-disclosure by
employees, or actual knowledge of veteran
status by the contractor. This paragraph does
not relieve an employer of liability for
discrimination under 38 U.S.C. 4212.
(g) The Contractor shall insert the terms of
this clause in subcontracts of $100,000 or
more unless exempted by rules, regulations,
or orders of the Secretary of Labor.
(End of clause)
17. Amend section 52.222–38 by
revising the date of the provision and
the provision to read as follows:
■
52.222–38 Compliance with Veterans’
Employment Reporting Requirements.
*
*
*
*
*
COMPLIANCE WITH VETERANS’
EMPLOYMENT REPORTING
REQUIREMENTS (SEP 2010)
By submission of its offer, the offeror
represents that, if it is subject to the reporting
requirements of 38 U.S.C. 4212(d) (i.e., if it
has any contract containing Federal
Acquisition Regulation clause 52.222–37,
Employment Reports on Veterans), it has
submitted the most recent VETS–100A
Report required by that clause.
(End of provision)
18. Amend section 52.244–6 by
revising the date of the clause and
paragraph (c)(1)(v) to read as follows:
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■
52.244–6
Items.
*
*
Subcontracts for Commercial
*
*
*
SUBCONTRACTS FOR COMMERCIAL
ITEMS (SEP 2010)
*
*
*
*
*
(c)(1) * * *
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(v) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212(a));
*
*
*
*
*
[FR Doc. 2010–24218 Filed 9–28–10; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4, 25 and 52
[FAC 2005–46; FAR Case 2010–012; Item
II; Docket 2010–0102, Sequence 1]
RIN 9000–AL71
Federal Acquisition Regulation;
Certification Requirement and
Procurement Prohibition Relating to
Iran Sanctions
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCY:
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are issuing an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
102 and partially implements section
106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010. Section 102
requires certification that each offeror,
and any person owned or controlled by
the offeror, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act of 1996, as amended (the
Iran Sanctions Act). Section 106
imposes a procurement prohibition
relating to contracts with persons that
export certain sensitive technology to
Iran. There will be further
implementation of section 106 in FAR
Case 2010–018.
DATES: Effective Date: September 29,
2010.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
November 29, 2010 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–46, FAR Case
2010–012, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
SUMMARY:
PO 00000
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Fmt 4701
Sfmt 4700
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2010–012’’ under the heading
‘‘Enter Keyword or ID’’ and selecting
‘‘Search.’’ Select the link ‘‘Submit a
Comment’’ that corresponds with ‘‘FAR
Case 2010–012.’’ Follow the instructions
provided at the ‘‘Submit a Comment’’
screen. Please include your name,
company name (if any), and ‘‘FAR Case
2010–012’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), 1800 F Street, NW., Room
4041, Attn: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–46, FAR Case
2010–012, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Cecelia L. Davis, Procurement Analyst,
at (202) 219–0202. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–46, FAR Case 2010–012.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements section
102 and partially implements section
106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111–
195), enacted July 1, 2010. Section 102,
entitled ‘‘Expansion of Sanctions under
the Iran Sanctions Act of 1996,’’ requires
that, not later than 90 days after the date
of the enactment of Public Law 111–
195, the FAR shall be revised to require
a certification from each person that is
a prospective contractor that the person,
and any person owned or controlled by
the person, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act.
This interim rule has added in FAR
subpart 25.7 a new section 25.703,
Prohibition on contracting with entities
that engage in certain activities relating
to Iran. This section provides a
definition of ‘‘person’’ at FAR 25.703–1,
which is applicable to both of the
following subsections.
FAR 25.703–2 implements section
102 of Public Law 111–195. It explains
the certification requirement at FAR
25.703–2(a) and provides a summary of
the activities for which sanctions may
be imposed, which are described in
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]]>Agencies
[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Rules and Regulations]
[Pages 60249-60254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-24218]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 22, and 52
[FAC 2005-46; FAR Case 2009-007; Item I; Docket 2010-0101, Sequence 1]
RIN 9000-AL67
Federal Acquisition Regulation; Equal Opportunity for Veterans
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing an interim rule
amending the Federal Acquisition Regulation (FAR) to implement
Department of Labor (DoL) regulations on equal opportunity provisions
for various categories of military veterans. This rule sets forth
revised coverage and definitions of veterans covered under the Vietnam
Era Veterans' Readjustment Assistance Act of 1972 (VEVRAA) and includes
new reporting requirements established under the VEVRAA and the Jobs
for Veterans Act (JVA).
DATES: Effective Date: September 29, 2010.
Applicability date: Contracting officers may modify existing
contracts of $100,000 or more that were awarded or modified on or after
December 1, 2003, to require the use of the new VETS-100A form starting
with the report filed September 30, 2010.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before November 29, 2010 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-46, FAR Case 2009-
007, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-007'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-007.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-007'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-46, FAR
Case 2009-007, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr.
[[Page 60250]]
Ernest Woodson, Procurement Analyst, at (202) 501-3775. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at (202) 501-4755. Please cite FAC 2005-46, FAR Case 2009-
007.
SUPPLEMENTARY INFORMATION:
A. Background
The DoL Office of Federal Contract Compliance Programs (OFCCP)
published a final rule in the Federal Register at 72 FR 44393 on August
8, 2007, that implements amendments to the affirmative action
provisions of the Vietnam Era Veterans' Readjustment Assistance Act of
1972 (VEVRAA) as amended by the Jobs for Veterans Act (JVA), Public Law
107-288. This final DoL rule changed the categories of veterans
protected by these laws for covered Government contracts entered into
or modified on or after December 1, 2003. These changes were published
in 41 CFR part 60-300 and specifically modified the equal opportunity
clause to be included in each covered Government contract or
subcontract.
The JVA amendments eliminated listing employment openings solely
with America's Job Bank as an option for complying with the mandatory
job listing requirement. The final DoL rule provides that listing
employment openings with the State workforce agency job bank or with
the local employment service delivery system where the opening occurs
will satisfy the requirement to list job openings with the appropriate
employment service delivery system.
The categories of veterans covered by the equal opportunity
provisions changed to include: Disabled Veterans, Recently Separated
Veterans, Other Protected Veterans, and Armed Forces Service Medal
Veterans. The JVA eliminated the separate coverage category of Vietnam-
era veterans; however, DoL in its rule explained that many people in
this category may be covered under the other categories. The JVA
expanded the coverage of veterans with disabilities to all veterans who
were discharged or released from active duty because of a service-
connected disability.
In addition, the DoL Veterans' Employment and Training Service
(VETS) published a final rule in the Federal Register at 73 FR 28710 on
May 19, 2008, that further implements the requirements under the VEVRAA
and the JVA that Government contractors track and annually report the
number of veteran employees in their workforces. This final DoL rule
adopted a new Federal Contractor Veterans' Employment Report, VETS-100A
form, to be used for reporting the revised categories of veterans that
contractors are to track and report. These reporting requirements are
published in 41 CFR part 61-300 and require each covered contract or
subcontract contain the clause for reporting using the new VETS-100A
form for contracts entered into or modified on or after December 1,
2003. The new VETS-100A form was required to be used for the report to
be filed by September 30, 2009.
This interim FAR rule re-titles FAR subpart 22.13 from ``Special
Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible
Veterans'' to ``Equal Opportunity for Veterans.'' Accordingly, FAR
clause 52.222-35 is also renamed ``Equal Opportunity for Veterans'' and
incorporates the new categories and definitions of protected veterans
as established by DoL. In addition, the FAR clause at 52.222-37,
``Employment Reports on Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans,'' is renamed ``Employment
Reports on Veterans'' and the new DoL requirements for using the VETS-
100A report are incorporated. Lastly, the FAR provision at 52.222-38,
``Compliance with Veterans' Employment Reporting Requirements,'' is
revised to incorporate new title references for FAR 52.222-37 and the
new report form VETS-100A.
The interim rule also makes conforming changes to the lists of FAR
clauses in 52.212-5, 52.213-4, and 52.244-6.
This is a significant regulatory action and, therefore, was subject
to review under section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this interim rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because contractors are already required to annually track and report
their veteran workforces on the VETS-100 form in accordance with
VEVRAA. This rule implements a new form, VETS-100A, that simply
includes the revised categories of veterans for reporting purposes.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils invite comments from small business concerns
and other interested parties on the expected impact of this rule on
small entities.
The Councils will also consider comments from small entities
concerning the existing regulations in parts affected by this rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-46, FAR Case
2009-007) in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Numbers
1293-0005 and 1215-0072.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary to implement the Department of Labor (DoL) final rule on
Veterans' Employment and Training Service (VETS) published in the
Federal Register at 73 FR 28710 on May 19, 2008, and a DoL final rule,
published in the Federal Register on August 8, 2007, that implements
amendments to the affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act of 1972 (VEVRAA), as amended by
the Jobs for Veterans Act (JVA). However, pursuant to 41 U.S.C. 418b
and FAR 1.501-3(b), the Councils will consider public comments received
in response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 1, 22, and 52
Government procurement.
Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 22, and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 1, 22, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by removing from FAR segment 22.13 OMB
[[Page 60251]]
Control Number ``1215-0072'' and adding ``1293-0005 and 1215-0072'' in
its place; and adding, in numerical sequence, FAR segment ``52.222-37''
and its corresponding OMB Control Number ``1293-0005''.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
0
3. Revise the heading of subpart 22.13 to read as follows:
Subpart 22.13--Equal Opportunity for Veterans
0
4. Revise sections 22.1300, 22.1301, and 22.1302 to read as follows:
22.1300 Scope of subpart.
This subpart prescribes policies and procedures for implementing
the following:
(a) The Vietnam Era Veterans' Readjustment Assistance Act of 1972
(38 U.S.C. 4211 and 4212) (the Act).
(b) The Veterans Employment Opportunities Act of 1998, Public Law
105-339.
(c) The Jobs for Veterans Act, Public Law 107-288.
(d) Executive Order 11701, January 24, 1973 (3 CFR, 1971-1975
Comp., p. 752).
(e) The regulations of the Secretary of Labor (41 CFR part 60-250,
part 61-250, part 60-300, and part 61-300).
22.1301 Definitions.
As used in this subpart--
Armed Forces service medal veteran means any veteran who, while
serving on active duty in the U.S. military, ground, naval, or air
service, participated in a United States military operation for which
an Armed Forces service medal was awarded pursuant to Executive Order
12985 (61 FR 1209).
Disabled veteran means--
(1) A veteran of the U.S. military, ground, naval, or air service,
who is entitled to compensation (or who, but for the receipt of
military retired pay, would be entitled to compensation) under laws
administered by the Secretary of Veterans Affairs; or
(2) A person who was discharged or released from active duty
because of a service-connected disability.
Other protected veteran means a veteran who served on active duty
in the U.S. military, ground, naval, or air service, during a war or in
a campaign or expedition for which a campaign badge has been authorized
under the laws administered by the Department of Defense.
Qualified disabled veteran means a disabled veteran who has the
ability to perform the essential functions of the employment positions
with or without reasonable accommodation.
Recently separated veteran means any veteran during the three-year
period beginning on the date of such veteran's discharge or release
from active duty in the U.S. military, ground, naval, or air service.
United States, means the 50 States, the District of Columbia,
Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the
U.S. Virgin Islands, and Wake Island.
22.1302 Policy.
(a) Contractors and subcontractors, when entering into contracts or
subcontracts subject to the Act, must--
(1) List all employment openings, with the appropriate employment
service delivery system where the opening occurs, except for--
(i) Executive and senior management positions;
(ii) Positions to be filled from within the contractor's
organization; and
(iii) Positions lasting three days or less.
(2) Take affirmative action to employ, advance in employment, and
otherwise treat qualified individuals, including qualified disabled
veterans, without discrimination based upon their status as a disabled
veteran, recently separated veteran, other protected veteran, and Armed
Forces service medal veteran, in all employment practices.
(b) Except for contracts for commercial items or contracts that do
not exceed the simplified acquisition threshold, contracting officers
must not obligate or expend funds appropriated for the agency for a
fiscal year to enter into a contract for the procurement of personal
property and nonpersonal services (including construction) with a
contractor that has not submitted the required annual form VETS-100,
Federal Contractor Veterans' Employment Report (VETS-100 Report and/or
VETS-100A Report), with respect to the preceding fiscal year if the
contractor was subject to the reporting requirements of 38 U.S.C.
4212(d) for that fiscal year.
22.1303 [Amended]
0
5. Amend section 22.1303 by removing from paragraph (b) ``Special
Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible'';
and removing from paragraph (c) ``VETS-100 Report'' and adding ``VETS-
100A Report'' in its place.
0
6. Amend section 22.1304 by revising the introductory text, and
paragraph (a) to read as follows:
22.1304 Procedures.
To verify if a proposed contractor is current with its submission
of the VETS-100 and/or the VETS-100A Report, the contracting officer
may--
(a) Query the Department of Labor's VETS-100 Database via the
Internet at https://www.vets100.com/login.aspx. Contracting officer
organization, name, e-mail, telephone, and password information are
required on the Contracting Officer Registration page to register for
system use.
* * * * *
0
7. Amend section 22.1305 by revising the introductory text of paragraph
(a) to read as follows:
22.1305 Waivers.
(a) The Director, Office of Federal Contract Compliance Programs,
Department of Labor, may waive any or all of the terms of the clause at
52.222-35, Equal Opportunity for Veterans, for--
* * * * *
0
8. Revise section 22.1306 to read as follows:
22.1306 Department of Labor notices and reports.
(a) The contracting officer must furnish to the contractor
appropriate notices for posting when they are prescribed by the Deputy
Assistant Secretary of Labor (see https://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm.
(b) The Act requires contractors and subcontractors to submit a
report at least annually to the Secretary of Labor regarding employment
of disabled veterans, recently separated veterans, other protected
veterans, and Armed Forces service medal veterans, unless all of the
terms of the clause at 52.222-35, Equal Opportunity for Veterans, have
been waived (see 22.1305). The contractor and subcontractor must use
form VETS-100A, Federal Contractor Veterans' Employment Report, to
submit the required reports (see https://vets100.vets.dol.gov).
22.1307 [Amended]
0
9. Amend section 22.1307 by removing the words ``Special Disabled
Veterans, Veterans of the Vietnam Era, and Other Eligible''.
0
10. Revise section 22.1308 to read as follows:
22.1308 Complaint procedures.
Following agency procedures, the contracting office must forward
any complaints received about the administration of the Act to the
Veterans' Employment and Training
[[Page 60252]]
Service of the Department of Labor, or to the Director, Office of
Federal Contract Compliance Programs, 200 Constitution Avenue, NW.,
Washington, DC 20210, or to any OFCCP regional, district, or area
office or through the local Veterans' Employment Representative or
designee, at the local State employment office. The Director, Office of
Federal Contract Compliance Programs, is responsible for investigating
complaints.
0
11. Amend section 22.1309 by revising the introductory text, and
paragraph (a) to read as follows:
22.1309 Actions because of noncompliance.
The contracting officer must take necessary action as soon as
possible upon notification by the appropriate agency official to
implement any sanctions imposed on a contractor by the Department of
Labor for violations of the clause at 52.222-35, Equal Opportunity for
Veterans. These sanctions (see 41 CFR 60-300.66) may include--
(a) Withholding progress payments;
* * * * *
0
12. Amend section 22.1310 by revising paragraphs (a) and (b) to read as
follows:
22.1310 Solicitation provision and contract clauses.
(a)(1) Insert the clause at 52.222-35, Equal Opportunity for
Veterans, in solicitations and contracts if the expected value is
$100,000 or more, except when--
(i) Work is performed outside the United States by employees
recruited outside the United States; or
(ii) The Director, Office of Federal Contract Compliance Programs,
has waived, in accordance with 22.1305(a) or the head of the agency has
waived, in accordance with 22.1305(b) all of the terms of the clause.
(2) If the Director, Office of Federal Contract Compliance
Programs, or the head of the agency waives one or more (but not all) of
the terms of the clause, use the basic clause with its Alternate I.
(b) Insert the clause at 52.222-37, Employment Reports on Veterans,
in solicitations and contracts containing the clause at 52.222-35,
Equal Opportunity for Veterans.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
13. Amend section 52.212-5 by revising the date of the clause,
paragraphs (b)(24), (b)(26), and (e)(1)(v); and the date of Alternate
II and paragraph (e)(1)(ii)(E) of Alternate II to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (SEP 2010)
* * * * *
(b) * * *
----(24) 52.222-35, Equal Opportunity for Veterans (SEP 2010)
(38 U.S.C. 4212).
* * * * *
----(26) 52.222-37, Employment Reports on Veterans (SEP 2010)
(38 U.S.C. 4212).
* * * * *
(e)(1) * * *
(v) 52.222-35, Equal Opportunity for Veterans (SEP 2010) (38
U.S.C. 4212).
* * * * *
Alternate II (SEP 2010). * * *
* * * * *
(e)(1) * * *
(ii) * * *
(E) 52.222-35, Equal Opportunity for Veterans (SEP 2010) (38
U.S.C. 4212).
* * * * *
0
14. Amend section 52.213-4 by revising the date of the clause, and
paragraphs (a)(2)(vii), (b)(1)(iii) and (b)(1)(v) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL
ITEMS) (SEP 2010)
(a) * * *
(2) * * *
(vii) 52.244-6, Subcontracts for Commercial Items (SEP 2010).
* * * * *
(b) * * *
(1) * * *
(iii) 52.222-35, Equal Opportunity for Veterans (SEP 2010) (38
U.S.C. 4212) (applies to contracts of $100,000 or more).
* * * * *
(v) 52.222-37, Employment Reports on Veterans (SEP 2010) (38
U.S.C. 4212) (applies to contracts of $100,000 or more).
* * * * *
0
15. Revise section 52.222-35 to read as follows:
52.222-35 Equal Opportunity for Veterans.
As prescribed in 22.1310(a)(1), insert the following clause:
EQUAL OPPORTUNITY FOR VETERANS (SEP 2010)
(a) Definitions. As used in this clause--
All employment openings means all positions except executive and
senior management, those positions that will be filled from within
the Contractor's organization, and positions lasting 3 days or less.
This term includes full-time employment, temporary employment of
more than 3 days duration, and part-time employment.
Armed Forces service medal veteran means any veteran who, while
serving on active duty in the U.S. military, ground, naval, or air
service, participated in a United States military operation for
which an Armed Forces service medal was awarded pursuant to
Executive Order 12985 (61 FR 1209).
Disabled veteran means--
(1) A veteran of the U.S. military, ground, naval, or air
service, who is entitled to compensation (or who but for the receipt
of military retired pay would be entitled to compensation) under
laws administered by the Secretary of Veterans Affairs; or
(2) A person who was discharged or released from active duty
because of a service-connected disability.
Executive and senior management means--(1) Any employee--
(i) Compensated on a salary basis at a rate of not less than
$455 per week (or $380 per week, if employed in American Samoa by
employers other than the Federal Government), exclusive of board,
lodging or other facilities;
(ii) Whose primary duty consists of the management of the
enterprise in which the individual is employed or of a customarily
recognized department or subdivision thereof;
(iii) Who customarily and regularly directs the work of two or
more other employees; and
(iv) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring or firing and
as to the advancement and promotion or any other change of status of
other employees will be given particular weight; or
(2) Any employee who owns at least a bona fide 20-percent equity
interest in the enterprise in which the employee is employed,
regardless of whether the business is a corporate or other type of
organization, and who is actively engaged in its management.
Other protected veteran means a veteran who served on active
duty in the U.S. military, ground, naval, or air service, during a
war or in a campaign or expedition for which a campaign badge has
been authorized under the laws administered by the Department of
Defense.
Positions that will be filled from within the Contractor's
organization means employment openings for which the Contractor will
give no consideration to persons outside the Contractor's
organization (including any affiliates, subsidiaries, and parent
companies) and includes any openings the Contractor proposes to fill
from regularly established ``recall'' lists. The exception does not
apply to a particular opening once an
[[Page 60253]]
employer decides to consider applicants outside of its organization.
Qualified disabled veteran means a disabled veteran who has the
ability to perform the essential functions of the employment
positions with or without reasonable accommodation.
Recently separated veteran means any veteran during the three-
year period beginning on the date of such veteran's discharge or
release from active duty in the U.S. military, ground, naval or air
service.
(b) General. (1) The Contractor shall not discriminate against
any employee or applicant for employment because the individual is a
disabled veteran, recently separated veteran, other protected
veterans, or Armed Forces service medal veteran, regarding any
position for which the employee or applicant for employment is
qualified. The Contractor shall take affirmative action to employ,
advance in employment, and otherwise treat qualified individuals,
including qualified disabled veterans, without discrimination based
upon their status as a disabled veteran, recently separated veteran,
Armed Forces service medal veteran, and other protected veteran in
all employment practices including the following:
(i) Recruitment, advertising, and job application procedures.
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring.
(iii) Rate of pay or any other form of compensation and changes
in compensation.
(iv) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists.
(v) Leaves of absence, sick leave, or any other leave.
(vi) Fringe benefits available by virtue of employment, whether
or not administered by the Contractor.
(vii) Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training.
(viii) Activities sponsored by the Contractor including social
or recreational programs.
(ix) Any other term, condition, or privilege of employment.
(2) The Contractor shall comply with the rules, regulations, and
relevant orders of the Secretary of Labor issued under the Vietnam
Era Veterans' Readjustment Assistance Act of 1972 (the Act), as
amended (38 U.S.C. 4211 and 4212).
(3) The Department of Labor's regulations require contractors
with 50 or more employees and a contract of $100,000 or more to have
an affirmative action program for veterans. See 41 CFR part 60-300,
subpart C.
(c) Listing openings. (1) The Contractor shall immediately list
all employment openings that exist at the time of the execution of
this contract and those which occur during the performance of this
contract, including those not generated by this contract, and
including those occurring at an establishment of the Contractor
other than the one where the contract is being performed, but
excluding those of independently operated corporate affiliates, at
an appropriate employment service delivery system where the opening
occurs. Listing employment openings with the State workforce agency
job bank or with the local employment service delivery system where
the opening occurs shall satisfy the requirement to list jobs with
the appropriate employment service delivery system.
(2) The Contractor shall make the listing of employment openings
with the appropriate employment service delivery system at least
concurrently with using any other recruitment source or effort and
shall involve the normal obligations of placing a bona fide job
order, including accepting referrals of veterans and nonveterans.
This listing of employment openings does not require hiring any
particular job applicant or hiring from any particular group of job
applicants and is not intended to relieve the Contractor from any
requirements of Executive orders or regulations concerning
nondiscrimination in employment.
(3) Whenever the Contractor becomes contractually bound to the
listing terms of this clause, it shall advise the State workforce
agency in each State where it has establishments of the name and
location of each hiring location in the State. As long as the
Contractor is contractually bound to these terms and has so advised
the State agency, it need not advise the State agency of subsequent
contracts. The Contractor may advise the State agency when it is no
longer bound by this contract clause.
(d) Applicability. This clause does not apply to the listing of
employment openings that occur and are filled outside the 50 States,
the District of Columbia, Puerto Rico, the Northern Mariana Islands,
American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.
(e) Postings. (1) The Contractor shall post employment notices
in conspicuous places that are available to employees and applicants
for employment.
(2) The employment notices shall--
(i) State the rights of applicants and employees as well as the
Contractor's obligation under the law to take affirmative action to
employ and advance in employment qualified employees and applicants
who are disabled veterans, recently separated veterans, Armed Forces
service medal veterans, and other protected veterans; and
(ii) Be in a form prescribed by the Director, Office of Federal
Contract Compliance Programs, and provided by or through the
Contracting Officer.
(3) The Contractor shall ensure that applicants or employees who
are disabled veterans are informed of the contents of the notice
(e.g., the Contractor may have the notice read to a visually
disabled veteran, or may lower the posted notice so that it can be
read by a person in a wheelchair).
(4) The Contractor shall notify each labor union or
representative of workers with which it has a collective bargaining
agreement, or other contract understanding, that the Contractor is
bound by the terms of the Act and is committed to take affirmative
action to employ, and advance in employment, qualified disabled
veterans, recently separated veterans, other protected veterans, and
Armed Forces service medal veterans.
(f) Noncompliance. If the Contractor does not comply with the
requirements of this clause, the Government may take appropriate
actions under the rules, regulations, and relevant orders of the
Secretary of Labor. This includes implementing any sanctions imposed
on a contractor by the Department of Labor for violations of this
clause (52.222-35, Equal Opportunity for Veterans). These sanctions
(see 41 CFR 60-300.66) may include--
(1) Withholding progress payments;
(2) Termination or suspension of the contract; or
(3) Debarment of the contractor.
(g) Subcontracts. The Contractor shall insert the terms of this
clause in subcontracts of $100,000 or more unless exempted by rules,
regulations, or orders of the Secretary of Labor. The Contractor
shall act as specified by the Director, Office of Federal Contract
Compliance Programs, to enforce the terms, including action for
noncompliance.
(End of clause)
Alternate I (Dec 2001). As prescribed in 22.1310(a)(2), add the
following as a preamble to the clause:
Notice: The following term(s) of this clause are waived for this
contract: ------------------------ [List term(s)].
16. Revise section 52.222-37 to read as follows:
52.222-37 Employment Reports on Veterans.
As prescribed in 22.1310(b), insert the following clause:
EMPLOYMENT REPORTS ON VETERANS (SEP 2010)
(a) Definitions. As used in this clause, ``Armed Forces service
medal veteran,'' ``disabled veteran,'' ``other protected veteran,''
and ``recently separated veteran,'' have the meanings given in the
Equal Opportunity for Veterans clause 52.222-35.
(b) Unless the Contractor is a State or local government agency,
the Contractor shall report at least annually, as required by the
Secretary of Labor, on--
(1) The total number of employees in the contractor's workforce,
by job category and hiring location, who are disabled veterans,
other protected veterans, Armed Forces service medal veterans, and
recently separated veterans.
(2) The total number of new employees hired during the period
covered by the report, and of the total, the number of disabled
veterans, other protected veterans, Armed Forces service medal
veterans, and recently separated veterans; and
(3) The maximum number and minimum number of employees of the
Contractor or subcontractor at each hiring location during the
period covered by the report.
(c) The Contractor shall report the above items by completing
the Form VETS-100A,
[[Page 60254]]
entitled ``Federal Contractor Veterans' Employment Report (VETS-100A
Report).''
(d) The Contractor shall submit VETS-100A Reports no later than
September 30 of each year.
(e) The employment activity report required by paragraphs (b)(2)
and (b)(3) of this clause shall reflect total new hires, and maximum
and minimum number of employees, during the most recent 12-month
period preceding the ending date selected for the report.
Contractors may select an ending date--
(1) As of the end of any pay period between July 1 and August 31
of the year the report is due; or
(2) As of December 31, if the Contractor has prior written
approval from the Equal Employment Opportunity Commission to do so
for purposes of submitting the Employer Information Report EEO-1
(Standard Form 100).
(f) The number of veterans reported must be based on data known
to the contractor when completing the VETS-100A. The contractor's
knowledge of veterans status may be obtained in a variety of ways,
including an invitation to applicants to self-identify (in
accordance with 41 CFR 60-300.42), voluntary self-disclosure by
employees, or actual knowledge of veteran status by the contractor.
This paragraph does not relieve an employer of liability for
discrimination under 38 U.S.C. 4212.
(g) The Contractor shall insert the terms of this clause in
subcontracts of $100,000 or more unless exempted by rules,
regulations, or orders of the Secretary of Labor.
(End of clause)
0
17. Amend section 52.222-38 by revising the date of the provision and
the provision to read as follows:
52.222-38 Compliance with Veterans' Employment Reporting Requirements.
* * * * *
COMPLIANCE WITH VETERANS' EMPLOYMENT REPORTING REQUIREMENTS (SEP 2010)
By submission of its offer, the offeror represents that, if it
is subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e.,
if it has any contract containing Federal Acquisition Regulation
clause 52.222-37, Employment Reports on Veterans), it has submitted
the most recent VETS-100A Report required by that clause.
(End of provision)
0
18. Amend section 52.244-6 by revising the date of the clause and
paragraph (c)(1)(v) to read as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
SUBCONTRACTS FOR COMMERCIAL ITEMS (SEP 2010)
* * * * *
(c)(1) * * *
(v) 52.222-35, Equal Opportunity for Veterans (SEP 2010) (38
U.S.C. 4212(a));
* * * * *
[FR Doc. 2010-24218 Filed 9-28-10; 8:45 am]
BILLING CODE 6820-EP-P
