Federal Acquisition Regulation; Nondisplacement of Qualified Workers Under Service Contracts, 26232-26238 [2012-10708]
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26232
Federal Register / Vol. 77, No. 86 / Thursday, May 3, 2012 / Proposed Rules
Friday, excluding legal holidays. The
telephone number for the Library is
(404) 562–8190.
Tennessee Department of Environment
and Conservation, 6th Floor, 401
Church Street, Nashville, Tennessee
32743, The Library is open from
9:00 a.m.–4:00 p.m. Monday through
Friday, excluding legal holidays. The
telephone number for the Library is
(615) 532–0191.
State of Tennessee; Underground
Injection Control (UIC) Program
Primacy Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.
NW., Washington, DC. The Public
Reading Room is open from
8:30 a.m.–4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the OW
Docket is (202) 566–2426.
FOR FURTHER INFORMATION CONTACT:
Nancy H. Marsh, Safe Drinking Water
Branch, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303; telephone
number: 404–562–9450. Fax number:
404–562–9439; email address:
marsh.nancy@epa.gov. Comments
should also be sent to this address.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 430, 431, 435, 436, 440,
441, and 447
[CMS–2249–CN]
RIN 0938–AO53
Medicaid Program; State Plan Home
and Community-Based Services,
5-Year Period for Waivers, Provider
Payment Reassignment, and Setting
Requirements for Community First
Choice; Correction
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Proposed rule; correction.
AGENCY:
This document corrects a
technical error that appeared in the
proposed rule published elsewhere in
this Federal Register entitled ‘‘Medicaid
Program; State Plan Home and
Community-Based Services, 5-Year
Period for Waivers, Provider Payment
Reassignment, and Setting
Requirements for Community First
Choice.’’ The proposed rule was
intended to carry a 60-day comment
period, but was submitted with a 30-day
comment period. This document
corrects that error.
DATES: The comment close date for the
proposed rule under the same heading
published elsewhere in this issue is
correctly extended to July 2, 2012.
FOR FURTHER INFORMATION CONTACT:
Annette Brewer, (410) 786–6580.
SUPPLEMENTARY INFORMATION:
SUMMARY:
comment before the provisions of a rule
take effect in accordance with section
553(b) of the Administrative Procedure
Act (APA) (5 U.S.C. 553(b)). However,
we can waive this notice and comment
procedure if the Secretary finds, for
good cause, that the notice and
comment process is impracticable,
unnecessary, or contrary to the public
interest, and incorporates a statement of
the finding and the reasons therefore in
the notice. We are not issuing additional
rulemaking at this time since this notice
extends the comment period for the
proposed rule to 60 days to allow the
public additional time to submit
comments.
IV. Correction of Errors
In proposed rule that is published
elsewhere in this Federal Register,
make the following corrections:
In the DATES section, the date ‘‘June 4,
2012’’ is corrected to read ‘‘July 2,
2012’’.
(Catalog of Federal Domestic Assistance
Program No. 93.778, Medical Assistance
Program)
Dated: April 30, 2012.
Jennifer M. Cannistra
Executive Secretary to the Department.
[FR Doc. 2012–10677 Filed 5–1–12; 11:15 am]
BILLING CODE 4120–01–P
The State
of Tennessee has submitted an
application to regulate Class I, II, III, IV
and V injection wells in the State. The
application was determined to be
complete because it included all of the
requirements of 40 CFR § 145.22(a): a
letter from the Governor requesting
program approval; a complete
description of the State Underground
Injection Control program; a statement
of legal authority; a memorandum of
agreement between the State of
Tennessee and the EPA, Region 4;
copies of all applicable rules and forms;
and a showing of the State’s public
participation process prior to program
submission.
I. Background
48 CFR Parts 2, 22, and 52
[FAR Case 2011–028; Docket 2011–0028;
Sequence 1]
Dated: April 19, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
In the proposed rule that is published
elsewhere in this Federal Register, there
was a technical error that is identified
and corrected in the Correction of Errors
section below. The provisions in this
correction document are effective as if
they had been included in the document
that is published elsewhere in this
Federal Register.
II. Summary of Errors
In the DATES section of the proposed
rule, we inadvertently stated that the
comment period would close on June 4,
2012 allowing a 30-day comment
period. This notice is being issued to
correct that error and to allow a 60-day
comment period.
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
SUMMARY:
SUPPLEMENTARY INFORMATION:
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[FR Doc. 2012–10619 Filed 5–2–12; 8:45 am]
BILLING CODE 6560–50–P
III. Waiver of Proposed Rulemaking
We ordinarily publish a notice of
proposed rulemaking in the Federal
Register to provide a period for public
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DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
RIN 9000–AM21
Federal Acquisition Regulation;
Nondisplacement of Qualified Workers
Under Service Contracts
AGENCIES:
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement an Executive order for
nondisplacement of qualified workers
under service contracts, as implemented
in Department of Labor regulations.
DATES: Interested parties should submit
written comments to the Regulatory
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Federal Register / Vol. 77, No. 86 / Thursday, May 3, 2012 / Proposed Rules
Secretariat at one of the addressees
shown below on or before July 2, 2012
to be considered in the formation of the
final rule.
ADDRESSES: Submit comments in
response to FAR Case 2011–028 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching ‘‘FAR Case 2011–028’’. Select
the link ‘‘Submit a Comment’’ that
corresponds with ‘‘FAR Case 2011–
028.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘FAR Case 2011–
028’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAR Case 2011–028, 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: Mr.
Edward Loeb, Procurement Analyst, at
202–501–0650, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAR Case 2011–028.
SUPPLEMENTARY INFORMATION:
wreier-aviles on DSK7SPTVN1PROD with PROPOSALS
I. Background
DoD, GSA, and NASA are proposing
to amend the FAR to implement
Executive Order (E.O.) 13495,
Nondisplacement of Qualified Workers
Under Service Contracts, dated January
30, 2009, published in the Federal
Register at 74 FR 6103 on February 4,
2009, and the Department of Labor
(DOL) implementing regulations,
published in the Federal Register at 76
FR 53720, August 29, 2011, with an
effective date to be established later.
The E.O. revoked E.O. 13204 of
February 17, 2001, which had resulted
in the deletion of FAR subpart 22.12 in
its entirety. This proposed rule would
amend the FAR to add subpart 22.12
and a new clause at FAR 52.222–XX,
providing the policy of the Federal
Government, as expressed in E.O.
13495, to require service contractors and
their subcontractors under successor
contracts to offer employees of the
predecessor contractor and its
subcontractors a right of first refusal of
employment for positions for which
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they are qualified. The E.O. provides a
clause for service contracts that will
succeed service contracts for
performance of the same or similar work
at the same location.
Executive Order 13495 specifically
excludes service contracts and
subcontracts in the following categories:
• Under the simplified acquisition
threshold;
• Awarded through the AbilityOne
Program pursuant to the rules of the
Committee for Purchase From People
Who Are Blind or Severely Disabled (41
U.S.C. chapter 85);
• Guard, elevator operator,
messenger, or custodial services
provided to the Federal Government by
sheltered workshops employing the
‘‘severely handicapped’’ as described in
40 U.S.C. 593;
• Vending facility agreements entered
into under the Randolph-Sheppard Act;
and
• Employees who were hired to work
under a Federal service contract and one
or more nonfederal service contracts as
part of a single job, provided that the
employees were not deployed in a
manner that was designed to avoid the
purposes of E.O. 13495.
The E.O. and DOL regulations provide
(see 29 CFR 9.1(b)) that nothing in either
document can be used as a reason for
failure to comply with any provision of
law or other E.O. With this policy, the
E.O. and the DOL implementing
regulations allow for compliance with
(a) the HUBZone Program (15 U.S.C.
657a and 632(p) and FAR subpart
19.13), (b) Executive Order 11246 (Equal
Employment Opportunity), and (c) the
Vietnam Era Veterans’ Readjustment
Assistance Act of 1974 (38 U.S.C. 4212).
For these reasons, the FAR proposed
rule includes a paragraph regarding
such compliance, at FAR 22.1202(b),
Policy, and paragraph (b)(2) of the
clause at FAR 52.222–XX, to be used in
procurements where one of the offerors
for the successor contract may have
been certified by the Small Business
Administration as a HUBZone small
business concern.
In addition to the exemptions listed
above, the E.O. provides, at section 4,
the authority for the head of a
contracting department or agency to
waive the application of the E.O. to a
contract, subcontract, or purchase order
(or a class of contracts, subcontracts, or
purchase orders) upon a determination
that its application would impair the
ability of the Government to procure
services on an economical and efficient
basis or would not serve the purposes of
the E.O. (see also 29 CFR 9.4(d)). A
decision to exempt a procurement or
class of procurements from one or more
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provisions of the E.O. is a requirements
decision, and the associated analysis,
documentation, and other requirements
necessary for an exemption are subject
to 29 CFR part 9. However, the FAR
puts contracting officials on notice that
any waiver that is not completed in
accordance with 29 CFR part 9 prior to
the contract solicitation date
automatically makes the agency waiver
determination inoperative. Failure to
comply will require resolicitation.
The E.O. tasked the Secretary of Labor
with enforcement, authorized the
Secretary of Labor, among other things,
to issue final orders prescribing
appropriate sanctions and remedies, and
required the Secretary of Labor to issue
regulations that implement the
requirements of the E.O.
The E.O. required FAR regulations
180 days after the date of the E.O. FAR
Case 2009–001 was opened February 5,
2009. However, that FAR case was
closed and a new FAR case opened
upon publication of the final DOL rule,
which occurred on August 29, 2011.
II. Discussion and Analysis
This proposed rule would add FAR
subpart 22.12, entitled
Nondisplacement of Qualified Workers
Under Service Contracts, and the
associated clause at FAR 52.222–XX,
entitled Nondisplacement of Qualified
Workers. The requirements in FAR
subpart 22.12 and the associated clause
are taken directly from E.O. 13495 and
the implementing regulations published
August 29, 2011, by the Department of
Labor at 29 CFR part 9 (see 76 FR
53720). However, the FAR does not
repeat elements of the investigative
methods, available reviews, or
enforcement mechanisms established by
the Department of Labor except as
necessary to ensure that contracting
officers and contractors, including
subcontractors, are aware of their
requirements and responsibilities.
For the reasons listed above, FAR
subpart 22.12 includes the following,
using as its source both the text of E.O.
13495 and 29 CFR part 9:
A. The definitions ‘‘service contract’’
and ‘‘United States’’ at FAR 22.1201
apply to the new subpart. The definition
of ‘‘service employee’’ has been moved
to FAR 22.001 to apply to all of part 22.
B. Statement of policy: The sources
for the coverage at FAR 22.1202(a) are
section 1 of E.O. 13495 and 29 CFR
section 9.1. The coverage applies only to
service contracts for performance of the
same or similar services at the same
location.
C. Exemptions: The sources for this
coverage are section 3 of E.O. 13495 and
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29 CFR 9.4. The five exemptions in the
E.O. are repeated in FAR 22.1203–2.
D. Waiver authority and limitations:
The sources of this coverage are section
4 of E.O. 13495 and 29 CFR section
9.4(d), both of which permit waiver,
with certain limitations, of the E.O.’s
requirements by the head of a
contracting department or agency. By
longstanding FAR convention, agencies
would be able to delegate this authority
pursuant to FAR 1.108(b). DoD, GSA,
and NASA are evaluating the need for
potential restrictions on the level to
which the authority may be delegated.
When an agency exercises its waiver
authority, it must notify DOL of its
decision in accordance with 29 CFR
9.4(d)(2) and provide the Department of
Labor with a copy of its written analysis
no later than 5 business days after the
solicitation date which DOL will then
post on its Web site. The waiver
authority has specific penalties for
agencies that do not comply.
Contracting officers are impacted
because the agency’s failure to comply
with DOL regulations regarding waivers
makes the waiver inoperative and
requires the contracting officer to insert
the clause in the solicitation.
E. Certified employee lists: The
sources of this coverage are section 5 of
E.O. 13495 and 29 CFR section 9.12(e).
The predecessor contractor is required
to provide a certified list of its
employees who are qualified to work on
the successor contract. The contracting
officer must provide the list to the
successor contractor in a timely manner.
F. Required notifications to
contractors and employees: The sources
for this coverage are 29 CFR 9.11 and
9.12. 29 CFR 9.11(b) states that ‘‘the
Contracting Officer will ensure that the
predecessor contractor provides written
notice to its service employees * * * of
their possible right to an offer of
employment.’’ In addition, 29 CFR
9.12(e) states that ‘‘the contractor shall,
not less than 30 days before completion
of the contactor’s performance of
services on a contract, furnish the
Contracting Officer with a list of the
names of all service employees working
under the contract and its subcontracts
at the time the list is submitted.’’ The
likelihood exists that, during the initial
implementation of the E.O., service
employees of the predecessor contractor
may not receive written notice and
Contracting Officers (and hence
successor contractors) may not receive
the list 30 days before the end of the
contract. As a general matter,
predecessor contractors will be
operating under the existing notification
clause set forth at FAR 52.222–41(n)
(applicable to contracts subject to the
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Service Contract Act (SCA)). This clause
does not address notification to service
employees because there was not
previously a right of first refusal. In
addition, the clause permits submission
of the list to the Contracting Officer as
few as 10 days prior to completion of
the contract. DoD, GSA, and NASA note
that under 29 CFR 9.12(a)(2), a
successor contractor’s obligation to offer
a right of first refusal exists even if the
information is not provided by the
incumbent within the 30-day window
(i.e., ‘‘even if the successor contractor
was not provided a list of the
predecessor contractor’s employees or
the list did not contain the names of all
persons employed during the final
month of contract performance.’’) The
FAR Council is considering possible
steps that might be taken, as agencies
transition to the new clause, to reduce
instances where service employees of
the predecessor contractor and
successor contractors do not receive
notice of their rights and successors
receive lists less than 30 days before the
end of the contract. One possible step
the FAR Council is considering is to
encourage agencies to enter into
bilateral modifications (starting with the
largest SCA-covered contracts) that
obligate predecessor contractors to (1)
inform their service employees of their
right of first refusal and (2) provide the
list to the Contracting Officer no less
than 30 days before contract
completion. DoD, GSA, and NASA
invite the public to offer their views and
ideas as part of their comments on this
rulemaking.
G. Remedies and sanctions: The
sources of this coverage are section 6 of
E.O. 13495 and 29 CFR 9.24. This area
is within the purview of the DOL. The
FAR, at section 22.1206, addresses the
contracting officer’s role.
H. Contract clause: The sources of
this coverage are section 5 of E.O. 13495
and Appendix A of 29 CFR part 9. The
paragraphs in the proposed FAR clause
have been reordered by importance and
in accordance with FAR drafting
procedures.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
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flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
DOD, GSA, and NASA do not believe
that this rule will 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. Nonetheless,
they are preparing an Initial Regulatory
Flexibility Analysis (IRFA), in the
interest of soliciting public comments,
which is summarized as follows:
DoD, GSA, and NASA are issuing a
proposed rule to amend the Federal
Acquisition Regulation (FAR) to implement
Executive Order (E.O.) 13495, entitled
Nondisplacement of Qualified Workers
Under Service Contracts (dated January 30,
2009) and the Department of Labor final rule
implementing the E.O. (29 CFR part 9,
published at 76 FR 53720, dated August 29,
2011).
It is the policy of the Federal Government
to require service contractors and their
subcontractors under successor contracts to
offer employees of the predecessor contractor
and its subcontractors a right of first refusal
of employment for positions for which they
are qualified. The E.O. provides a clause for
service contracts that will succeed service
contracts for performance of the same or
similar work at the same location. The E.O.
revoked E.O. 13204 of February 17, 2001,
which resulted in the deletion of FAR
subpart 22.12 in its entirety. This FAR
proposed rule would add subpart 22.12 and
a new clause at FAR 52.222–XX.
Executive Order 13495 excludes service
contracts and subcontracts in the following
categories:
• Under the simplified acquisition
threshold.
• Awarded through the AbilityOne
Program pursuant to the rules of the
Committee for Purchase From People Who
Are Blind or Severely Disabled (41 U.S.C.
chapter 85).
• Guard, elevator operator, messenger, or
custodial services provided to the Federal
Government by sheltered workshops
employing the severely handicapped as
described in 40 U.S.C. 593.
• Vending facility agreements entered into
under the Randolph-Sheppard Act.
• Employees who were hired to work
under a Federal service contract and one or
more nonfederal service contracts as part of
a single job, provided that the employees
were not deployed in a manner that was
designed to avoid the purposes of E.O. 13495.
The FAR proposed rule adds coverage that
allows for compliance with (a) the HUBZone
Program (see FAR subpart 19.13),(b)
Executive Order 11246 (Equal Employment
Opportunity), and (c) the Vietnam Era
Veterans’ Readjustment Assistance Act of
1974.
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In addition to the exemptions above, the
E.O. provides, at section 4, the authority for
the head of a contracting department or
agency to waive the application of the E.O.
to a contract, subcontract, or purchase order
(or a class of contracts, subcontracts, or
purchase orders) upon a determination its
application would impair the ability of the
Government to procure services on an
economical and efficient basis or would not
serve the purposes of E.O. 13495 (see also 29
CFR 9.4(d)). A decision to exempt a
procurement or class of procurements from
one or more provisions of the E.O. is a
requirements decision, and the associated
analysis, documentation, and other
requirements necessary for an exemption are
subject to 29 CFR part 9. However, the FAR
puts contracting officials on notice in this
FAR proposed rule that any waiver that is not
completed in accordance with 29 CFR part 9
prior to the contract solicitation date
automatically makes the agency
determination inoperative.
The E.O. tasked the Secretary of Labor with
enforcement authority that, among other
things, authorizes the Secretary Labor to
issue final orders prescribing appropriate
sanctions and remedies, including but not
limited to, orders requiring employment and
payment of wages lost, and required the
Secretary to develop implementing
regulations. These matters are not addressed
in the FAR because they are outside the
contracting function.
The estimated impact that follows is based
entirely upon the DOL figures reported in the
proposed and final rules that it published
implementing E.O. 13495. Although DOL
prepared an initial regulatory flexibility
analysis, the agency, in the final rule,
certified that 29 CFR part 9 does not have a
significant economic impact on a substantial
number of small entities. There is no
additional impact due to the implementation
of the DOL regulations in the FAR. The
requirements in the FAR are taken from the
E.O. and 29 CFR part 9 without addition.
DOL estimated that 28,800 small entities
will be subject to its regulation and the
majority of these small entities will incur
compliance costs of less than $100. The
analysis offsets the actions that a successor
contractor would already be taking, such as
determining an individual’s suitability for
available positions and documentting
employment decisions. Further, DOL
assumed a time/cost savings on the part of
small entities because the entities will not
have to engage in recruiting and training an
entirely new workforce.
The predecessor contractor is required to
provide a certified list of the names of all
service employees working under that
contract, and its subcontracts, to the
contracting agency no later than 30 days
before completion of performance of the
predecessor contract. DOL notes, however,
that there is little or no cost associated with
this requirement because the certified list is
the same list as the certified seniority list
currently required to be provided under the
Service Contract Act clause, FAR 52.222–
41(n). The minimal new reporting
requirements mandated by the DOL
implementation of E.O. 13495 are addressed
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in the information collection justification
submitted by DOL in connection with its
final rule (see 76 FR 53720 dated August 29,
2011). No additional reporting requirements
are imposed by the FAR rule, which merely
relocates the contract clause from the E.O.
into FAR part 52.
The rule does not duplicate, overlap, or
conflict with any other Federal rules. The
requirements of E.O. 13495 do not allow for
any alternatives.
The FAR Secretariat has submitted a
copy of the IRFA to the Chief Counsel
for Advocacy of the Small Business
Administration. A copy of the IRFA may
be obtained from the Regulatory
Secretariat. DoD, GSA, and NASA invite
comments from small business concerns
and other interested parties on the
expected impact of this rule on small
entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2011–028), in
correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does apply; however
these changes to the FAR do not
imposed additional information
collection requirements to the
paperwork burden previously approved
under the Office of Management and
Budget Control Number 1235–0007 and
1235–XXXX, titled: Labor Standards for
Federal Service Contracts—Regulations
29 CFR, Part 4 and Nondisplacement of
Qualified Workers Under Service
Contracts Executive Order 13495,
respectively.
List of Subjects in 48 CFR Parts 2, 22,
and 52
Government procurement.
Dated: April 30, 2012.
Laura Auletta,
Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 2, 22,
and 52 as set forth below:
1. The authority citation for 48 CFR
parts 2, 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 2—DEFINITIONS OF WORDS
AND TERMS
2. Amend section 2.101, in paragraph
(a), in the definition ‘‘United States’’ by
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redesignating paragraphs 4 through 10
as paragraphs 5 through 11,
respectively; and adding a new
paragraph 4 to read as follows:
2.101
Definitions.
*
*
*
*
*
(a) * * *
Unites States * * *
(4) For use in subpart 22.13, see the
definition at 22.1201.
*
*
*
*
*
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
3. Amend section 22.001 by adding,
in alphabetical order, the definition
‘‘Service employee’’ to read as follows:
22.001
Definitions.
*
*
*
*
*
Service employee means any person
engaged in the performance of a service
contract other than any person
employed in a bona fide executive,
administrative, or professional capacity,
as those terms are defined in 29 CFR
part 541. The term ‘‘service employee’’
includes all such persons regardless of
any contractual relationship that may be
alleged to exist between a contractor or
subcontractor and such persons.
*
*
*
*
*
22.1001
[Amended]
4. Amend section 22.1001 by
removing the definition ‘‘Service
employee’’.
5. Add subpart 22.12 to read as
follows:
Subpart 22.12—Nondisplacement of
Qualified Workers Under Service Contracts
22.1200 Scope of subpart.
22.1201 Definitions.
22.1202 Policy.
22.1203 Applicability.
22.1203–1 General.
22.1203–2 Exemptions.
22.1203–3 Waiver.
22.1204 Certified employee lists.
22.1205 Notification to contractors and
employees.
22.1206 Remedies and sanctions for
violations of this subpart.
22.1207 Contract clause.
Subpart 22.12—Nondisplacement of
Qualified Workers Under Service
Contracts
22.1200
Scope of subpart.
This subpart prescribes policies and
procedures for implementing Executive
Order 13495 of January 30, 2009,
Nondisplacement of Qualified Workers
Under Service Contracts.
22.1201
Definitions.
As used in this subpart—
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Service contract means any
Government contract, the principal
purpose of which is to furnish services
in the United States through the use of
service employees, except as exempted
under the Service Contract Labor
Standards (41 U.S.C. chapter 67; see
22.1003–3 and 22.1003–4), or any
subcontract at any tier thereunder. See
22.1003–5 and 29 CFR 4.130 for a
partial list of services covered by the
Act.
United States means the 50 States, the
District of Columbia, Puerto Rico, the
Northern Mariana Islands, American
Samoa, Guam, the U.S. Virgin Islands,
Johnston Island, Wake Island, and outer
Continental Shelf as defined in the outer
Continental Shelf Lands Act (43 U.S.C.
1331, et seq.), but does not include any
other place subject to United States
jurisdiction or any United States base or
possession in a foreign country (29 CFR
4.112).
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22.1202
Policy.
(a) When a service contract succeeds
a contract for performance of the same
or similar services at the same location,
the successor contractor and its
subcontractors are required to offer
those employees (other than managerial
and supervisory employees) that are
employed under the predecessor
contract, and whose employment will
be terminated as a result of the award
of the successor contract, a right of first
refusal of employment under the
contract in positions for which they are
qualified. Executive Order 13495
generally prohibits employment
openings under the successor contract
until such right of first refusal has been
provided, when consistent with
applicable law.
(b) Nothing in Executive Order 13495
shall be construed to permit a contractor
or subcontractor to fail to comply with
any provision of any other Executive
order or law. For example, the
requirements of the HUBZone Program
(see subpart 19.13), Executive Order
11246 (Equal Employment
Opportunity), and the Vietnam Era
Veterans’ Readjustment Assistance Act
of 1974 may conflict with the
requirements of Executive Order 13495.
Those laws and Executive orders must
be satisfied in tandem with, and if
necessary prior to, the requirements of
Executive Order 13495 and this subpart.
22.1203
Applicability.
22.1203–1
General.
This subpart applies to service
contracts that succeed contracts for the
same or similar services at the same
location.
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22.1203–2
Exemptions.
(a) This subpart does not apply to—
(1) Contracts and subcontracts under
the simplified acquisition threshold;
(2) Contracts or subcontracts awarded
pursuant to 41 U.S.C. chapter 85,
Committee for Purchase from People
Who Are Blind or Severely Disabled;
(3) Guard, elevator operator,
messenger, or custodial services
provided to the Government under
contracts or subcontracts with sheltered
workshops employing the ‘‘severely
handicapped’’ as described in 40 U.S.C.
593;
(4) Agreements for vending facilities
entered into pursuant to the preference
regulations issued under the Randolph
Sheppard Act, 20 U.S.C. 107; or
(5) Employees who were hired to
work under a Federal service contract
and one or more nonfederal service
contracts as part of a single job,
provided that the employees were not
deployed in a manner that was designed
to avoid the purposes of this subpart.
(b) The exclusions in paragraphs (a)(2)
through (a)(4) of this subsection apply
when either the predecessor or
successor contract has been awarded for
services produced or provided by the
‘‘severely handicapped.’’
22.1203–3
Waiver.
(a) If the head of the procuring agency
determines in writing that the
application of this subpart would not
serve the purposes of Executive Order
13495 or would impair the ability of the
Federal Government to procure services
on an economical and efficient basis,
the agency head may waive some or all
of the provisions of this subpart. Such
waivers may be made for a contract,
subcontract, or purchase order, or with
respect to a class of contracts,
subcontracts, or purchase orders. See 29
CFR 9.4(d)(4) for regulatory provisions
addressing circumstances in which a
waiver could or would not be
appropriate. The waiver must be
reflected in a written analysis as
described in 29 CFR 9.4(d)(4)(i) and
must be completed prior to the contract
solicitation date, or the waiver is
inoperative.
(b)(1) When an agency exercises its
waiver authority with respect to any
contract, subcontract, or purchase order,
the contracting officer shall direct the
contractor to notify affected workers and
their collective bargaining
representative in writing, no later than
five business days after the solicitation
issuance date, of the agency’s
determination. The notice shall include
facts supporting the determination. The
contracting officer’s failure to direct that
the contractor provide the notice as
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provided in this subparagraph shall
render the waiver decision inoperative,
and the contracting officer shall include
the clause at 52.222–XX in the
solicitation.
(2) Where a contracting agency waives
application to a class of contracts,
subcontracts, or purchase orders, the
contracting officer shall, with respect to
each individual solicitation, direct the
contractor to notify incumbent workers
and their collective bargaining
representatives in writing, no later than
five business days after each solicitation
issuance date, of the agency’s
determination. The notice shall include
facts supporting the determination. The
contracting officer’s failure to direct that
the contractor provide the notice
provided in this subparagraph shall
render the waiver decision inoperative,
and the contracting officer shall include
the clause at 52.222–XX in the
solicitation.
(3) In addition, the agency shall notify
the Department of Labor of its waiver
decision and provide the Department of
Labor with a copy of its written analysis
no later than five business days after the
solicitation issuance date. Failure to
comply with this notification
requirement shall render the waiver
decision inoperative, and the
contracting officer shall include the
clause at 52.222–XX in the solicitation.
22.1204
Certified employee lists.
(a) The predecessor contractor is
required to furnish to the contracting
officer, not less than 30 days before
completion of the predecessor contract,
a certified list of the names of all service
employees working under the contract
and its subcontracts at the time the list
is submitted. The certified list must also
contain anniversary dates of
employment of each service employee
under the contract and subcontracts for
services. This list is the same as the
seniority list required by paragraph (n)
of the clause at 52.222–41, Service
Contract Act of 1965. If there are no
changes to the workforce before the
predecessor contract is completed, then
the predecessor contractor is not
required to submit a revised list 10 days
prior to completion of performance and
the requirements of 52.222–41(n) are
met. When there are changes to the
workforce after submission of the 30day list, the predecessor contractor shall
submit a revised certified list not less
than 10 days prior to performance
completion.
(b) The contracting officer shall
provide the seniority list to the
successor contractor and, if requested,
to employees of the predecessor
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contractor or subcontractors or their
authorized representatives.
subcontractor for a period of up to three
years.
22.1205 Notification to contractors and
employees.
22.1207
(a) The contracting officer shall
ensure that the predecessor contractor
provides written notice to service
employees of their possible right to an
offer of employment with the successor
contractor. The written notice shall be—
(1) Posted in a conspicuous place at
the worksite; or
(2) Delivered to the employees
individually. If such delivery is via
email, the notification must result in an
electronic delivery receipt or some other
reliable confirmation that the intended
recipient received the notice.
(b) Contracting officers may advise
contractors to provide the notice in
Appendix B to 29 CFR chapter 9. Where
a significant portion of the predecessor
contractor’s workforce is not fluent in
English, the notice shall be provided in
English and language(s) with which
employees are more familiar. English
and Spanish versions of the notice are
available on the Department of Labor
Web site at https://www.dol.gov/whd.
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22.1206 Remedies and sanctions for
violations of this subpart.
(a) The Secretary of Labor has the
authority to issue orders prescribing
appropriate remedies, including, but not
limited to, requiring the successor
contractor to offer employment, in
positions for which the employees are
qualified, to employees from the
predecessor contract and payment of
wages lost.
(b) After an investigation and a
determination by the Administrator,
Wage and Hour Division, Department of
Labor, that lost wages or other monetary
relief is due, the Administrator may
direct that so much of the accrued
payments due on either the contract or
any other contract between the
contractor and the Government shall be
withheld as are necessary to pay the
monies due. Upon the final order of the
Secretary of Labor that such monies are
due, the Administrator may direct that
such withheld funds be transferred to
the Department of Labor for
disbursement.
(c) If the contracting officer or the
Administrator, Wage and Hour Division,
Department of Labor, finds that the
predecessor contractor has failed to
provide the list required by 22.1204, the
contracting officer may in his or her
discretion, or on request by the
Administrator, suspend contract
payment until such time as the list is
provided to the contracting officer.
(d) The Secretary of Labor may also
suspend or debar a contractor or
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Contract clause.
The contracting officer shall insert the
clause at 52.222–XX, Nondisplacement
of Qualified Workers, in solicitations
and contracts for services (1) defined at
22.1201, (2) that succeed contracts for
performance of the same or similar work
at the same location, and (3) that are not
exempted by 22.1203–2 or waived in
accordance with 22.1203–3.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
6. Amend section 52.212–5 by—
a. Revising the date of the clause;
b. Redesignating paragraphs (c)(7) and
(c)(8) as paragraphs (c)(8) and (c)(9),
respectively;
c. Adding a new paragraph (c)(7);
d. Redesignating paragraphs
(e)(1)(xiii) and (e)(1)(xiv) as paragraphs
(e)(1)(xiv) and (e)(1)(xv), respectively;
and
e. Adding a new paragraph (e)(1)(xiii)
to read as follows.
52.212–5 Contract Terms and Conditions
Required To Implement Statutes of
Executive Orders—Commercial Items.
*
*
*
*
*
Contract Terms and Conditions
Required To Implement Statutes of
Executive Orders—Commercial Items
(DATE)
*
*
*
*
*
(c) * * *
__(7) 52.222–XX, Nondisplacement of
Qualified Workers (DATE) (E.O. 13495).
*
*
*
*
*
(e)(1) * * *
(i) * * *
(xiii) 52.222–XX, Nondisplacement of
Qualified Workers (DATE) (E.O. 13495).
*
*
*
*
*
7. Add section 52.222–XX to read as
follows:
52.222–XX
Workers.
Nondisplacement of Qualified
As prescribed in 22.1207, insert the
following clause:
Nondisplacement of Qualified Workers
(DATE)
(a) Consistent with the efficient
performance of this contract, the Contractor
and its subcontractors shall, except as
otherwise provided herein, in good faith offer
those employees (other than managerial and
supervisory employees) employed under the
predecessor contract whose employment will
be terminated as a result of award of this
contract or the expiration of the contract
under which the employees were hired, a
right of first refusal of employment under
this contract in positions for which
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26237
employees are qualified. The Contractor and
its subcontractors shall determine the
number of employees necessary for efficient
performance of this contract and may elect to
employ fewer employees than the
predecessor Contractor employed in
connection with performance of the work.
Except as provided in paragraph (b) of this
clause, there shall be no employment
opening under this contract, and the
Contractor and any subcontractors shall not
offer employment under this contract, to any
person prior to having complied fully with
this obligation. The Contractor and its
subcontractors shall make a bona fide express
offer of employment to each employee as
provided herein and shall state the time
within which the employee must accept such
offer, but in no case shall the period within
which the employee must accept the offer of
employment be less than 10 days.
(b)(1) Notwithstanding the obligation
under paragraph (a) of this clause, the
Contractor and any subcontractors (i) may
employ under this contract any employee
who has worked for the Contractor or
subcontractor for at least three months
immediately preceding the commencement
of this contract and who would otherwise
face lay-off or discharge, (ii) are not required
to offer a right of first refusal to any
employee(s) of the predecessor Contractor
who are not service employees within the
meaning of the Service Contract Act of 1965,
as amended, 41 U.S.C. 6701(3), and (iii) are
not required to offer a right of first refusal to
any employee(s) of the predecessor
Contractor whom the Contractor or any of its
subcontractors reasonably believes, based on
the particular employee’s past performance,
has failed to perform suitably on the job.
(2) In addition, any Contractor or
subcontractor that has been certified by the
U.S. Small Business Administration as a
HUBZone small business concern must
ensure that it complies with the statutory and
regulatory requirements of the HUBZone
Program (e.g., it must ensure that at least 35
percent of all of its employees reside within
a HUBZone). The HUBZone small business
Contractor or subcontractor must consider
whether it can meet the requirements of this
clause and Executive Order 13495 while also
ensuring it meets the HUBZone Program’s
requirements.
(3) Nothing in this clause shall be
construed to permit a Contractor or
subcontractor to fail to comply with any
provision of any other Executive order or
law. For example, the requirements of the
HUBZone Program (see FAR subpart 19.13),
Executive Order 11246 (Equal Employment
Opportunity), and the Vietnam Era Veterans’
Readjustment Assistance Act of 1974 may
conflict with the requirements of Executive
Order 13495. Those laws and Executive
orders must be satisfied in tandem with, and
if necessary prior to, the requirements of
Executive Order 13495, 29 CFR part 9, and
this clause.
(c)(1) The Contractor shall, not less than 30
days before completion of the Contractor’s
performance of services on a contract, furnish
the Contracting Officer with a certified list of
the names of all service employees working
under this contract and its subcontracts at the
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time the list is submitted. The list shall also
contain anniversary dates of employment of
each service employee under this contract
and its predecessor contracts with either the
current or predecessor contractors or their
subcontractors. Where changes to the
workforce are made after the submission of
the certified list described in this paragraph,
the Contractor shall, in accordance with
paragraph (d) of this clause, not less than 10
days before completion of the services on a
contract, furnish the Contracting Officer with
an updated certified list of the names of all
service employees employed within the last
month of contract performance. The updated
list shall also contain anniversary dates of
employment, and, where applicable, dates of
separation of each service employee under
the contract and its predecessor contracts
with either the current or predecessor
Contractors or their subcontractors. Only
Contractors experiencing a change in their
workforce between the 30- and 10-day
periods will have to submit a list in
accordance with paragraph (d) of this clause.
(2) The Contracting Officer will provide the
list to the successor Contractor, and the list
shall be provided on request to employees or
their representatives.
(3) The Contracting Officer will direct the
predecessor Contractor to provide written
notice (Appendix B to 29 CFR chapter 9) to
service employees of their possible right to
an offer of employment with the successor
Contractor. Where a significant portion of the
predecessor Contractor’s workforce is not
fluent in English, the notice shall be
provided in English and language(s) with
which employees are more familiar. The
written notice shall be—
(i) Posted in a conspicuous place at the
worksite; or
(ii) Delivered to the employees
individually. If such delivery is via email, the
notification must result in an electronic
delivery receipt or some other reliable
confirmation that the intended recipient
received the notice.
(d)(1) If required in accordance with
52.222–41(n), the Contractor shall, not less
than 10 days before completion of this
contract, furnish the Contracting Officer a
certified list of the names of all service
employees working under this contract and
its subcontracts during the last month of
contract performance. The list shall also
contain anniversary dates of employment of
each service employee under this contract
and its predecessor contracts either with the
current or predecessor Contractors or their
subcontractors. If there are no changes to the
workforce before the predecessor contract is
completed, then the predecessor Contractor
is not required to submit a revised list 10
days prior to completion of performance and
the requirements of 52.222–41(n) are met.
When there are changes to the workforce
after submission of the 30-day list, the
predecessor Contractor shall submit a revised
certified list not less than 10 days prior to
performance completion.
(2) The Contracting Officer will provide the
list to the successor Contractor, and the list
shall be provided on request to employees or
their authorized representatives.
(e) The Contractor and subcontractor shall
maintain the following records (regardless of
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format, e.g., paper or electronic) of its
compliance with this clause for not less than
a period of three years from the date the
records were created.
(1) Copies of any written offers of
employment or a contemporaneous written
record of any oral offers of employment,
including the date, location, and attendance
roster of any employee meeting(s) at which
the offers were extended, a summary of each
meeting, a copy of any written notice that
may have been distributed, and the names of
the employees from the predecessor contract
to whom an offer was made.
(2) A copy of any record that forms the
basis for any exemption claimed under this
part.
(3) A copy of the employee list provided
to or received from the contracting agency.
(4) An entry on the pay records of the
amount of any retroactive payment of wages
or compensation under the supervision of the
Administrator of the Wage and Hour Division
to each employee, the period covered by such
payment, and the date of payment, and a
copy of any receipt form provided by or
authorized by the Wage and Hour Division.
The Contractor shall also deliver a copy of
the receipt to the employee and file the
original, as evidence of payment by the
Contractor and receipt by the employee, with
the Administrator or an authorized
representative within 10 days after payment
is made.
(f) Disputes concerning the requirements of
this clause shall not be subject to the general
disputes clause (52.233–1) of this contract.
Such disputes shall be resolved in
accordance with the procedures of the
Department of Labor set forth in 29 CFR part
9. Disputes within the meaning of this clause
include disputes between or among any of
the following: The Contractor, the contracting
agency, the U.S. Department of Labor, and
the employees under the contract or its
predecessor contract. The Contracting Officer
will refer any employee who wishes to file
a complaint, or ask questions concerning this
contract clause, to the Branch of Government
Contracts Enforcement, Wage and Hour
Division, U.S. Department of Labor,
Washington, DC 20210. Contact email:
displaced@dol.gov.
(g) The Contractor shall cooperate in any
review or investigation by the Department of
Labor into possible violations of the
provisions of this clause and shall make such
records requested by such official(s) available
for inspection, copying, or transcription upon
request.
(h) If it is determined, pursuant to
regulations issued by the Secretary of Labor
(Secretary), that the Contractor or its
subcontractors are not in compliance with
the requirements of this clause or any
regulation or order of the Secretary,
appropriate sanctions may be imposed and
remedies invoked against the Contractor or
its subcontractors, as provided in Executive
Order 13495, the regulations, and relevant
orders of the Secretary, or as otherwise
provided by law.
(i) The Contractor shall take such action
with respect to any such subcontract as may
be directed by the Secretary as a means of
enforcing such provisions, including the
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imposition of sanctions for noncompliance.
However, if the Contractor, as a result of such
direction, becomes involved in litigation
with a subcontractor, or is threatened with
such involvement, the Contractor may
request that the United States, through the
Secretary of Labor, enter into such litigation
to protect the interests of the United States.
(j) The Contracting Officer will withhold,
or cause to be withheld, from the prime
Contractor under this or any other
Government contract with the same prime
Contractor, such sums as an authorized
official of the Department of Labor requests,
upon a determination by the Administrator,
the Administrative Law Judge, or the
Administrative Review Board, that there has
been a failure to comply with the terms of
this clause and that wages lost as a result of
the violations are due to employees or that
other monetary relief is appropriate. If the
Contracting Officer or the Administrator,
upon final order of the Secretary, finds that
the Contractor has failed to provide a list of
the names of employees working under the
contract, the Contracting Officer may, in his
or her discretion, or upon request by the
Administrator, take such action as may be
necessary to cause the suspension of the
payment of contract funds until such time as
the list is provided to the Contracting Officer.
(k) Subcontracts. In every subcontract over
the simplified acquisition threshold entered
into in order to perform services under this
contract, the Contractor shall include a
provision that ensures—
(1) That each subcontractor will honor the
requirements of paragraphs (a) through (b) of
this clause with respect to the employees of
a predecessor subcontractor or subcontractors
working under this contract, as well as of a
predecessor Contractor and its
subcontractors;
(2) That the subcontractor will provide the
Contractor with the information about the
employees of the subcontractor needed by
the Contractor to comply with paragraphs (c)
and (d) of this clause; and
(3) The recordkeeping requirements of
paragraph (e) of this clause.
(End of clause)
[FR Doc. 2012–10708 Filed 5–2–12; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 600
[Docket No. 120425420–2420–01]
RIN 0648–BB92
Fisheries of the United States; National
Standard 1 Guidelines
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Advance notice of proposed
rulemaking; request for comments;
AGENCY:
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Agencies
[Federal Register Volume 77, Number 86 (Thursday, May 3, 2012)]
[Proposed Rules]
[Pages 26232-26238]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10708]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAR Case 2011-028; Docket 2011-0028; Sequence 1]
RIN 9000-AM21
Federal Acquisition Regulation; Nondisplacement of Qualified
Workers Under Service Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement an Executive order for
nondisplacement of qualified workers under service contracts, as
implemented in Department of Labor regulations.
DATES: Interested parties should submit written comments to the
Regulatory
[[Page 26233]]
Secretariat at one of the addressees shown below on or before July 2,
2012 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2011-028 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching ``FAR Case
2011-028''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2011-028.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2011-028'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR Case 2011-
028, 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: Mr. Edward Loeb, Procurement Analyst,
at 202-501-0650, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2011-028.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers
Under Service Contracts, dated January 30, 2009, published in the
Federal Register at 74 FR 6103 on February 4, 2009, and the Department
of Labor (DOL) implementing regulations, published in the Federal
Register at 76 FR 53720, August 29, 2011, with an effective date to be
established later. The E.O. revoked E.O. 13204 of February 17, 2001,
which had resulted in the deletion of FAR subpart 22.12 in its
entirety. This proposed rule would amend the FAR to add subpart 22.12
and a new clause at FAR 52.222-XX, providing the policy of the Federal
Government, as expressed in E.O. 13495, to require service contractors
and their subcontractors under successor contracts to offer employees
of the predecessor contractor and its subcontractors a right of first
refusal of employment for positions for which they are qualified. The
E.O. provides a clause for service contracts that will succeed service
contracts for performance of the same or similar work at the same
location.
Executive Order 13495 specifically excludes service contracts and
subcontracts in the following categories:
Under the simplified acquisition threshold;
Awarded through the AbilityOne Program pursuant to the
rules of the Committee for Purchase From People Who Are Blind or
Severely Disabled (41 U.S.C. chapter 85);
Guard, elevator operator, messenger, or custodial services
provided to the Federal Government by sheltered workshops employing the
``severely handicapped'' as described in 40 U.S.C. 593;
Vending facility agreements entered into under the
Randolph-Sheppard Act; and
Employees who were hired to work under a Federal service
contract and one or more nonfederal service contracts as part of a
single job, provided that the employees were not deployed in a manner
that was designed to avoid the purposes of E.O. 13495.
The E.O. and DOL regulations provide (see 29 CFR 9.1(b)) that
nothing in either document can be used as a reason for failure to
comply with any provision of law or other E.O. With this policy, the
E.O. and the DOL implementing regulations allow for compliance with (a)
the HUBZone Program (15 U.S.C. 657a and 632(p) and FAR subpart 19.13),
(b) Executive Order 11246 (Equal Employment Opportunity), and (c) the
Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C.
4212). For these reasons, the FAR proposed rule includes a paragraph
regarding such compliance, at FAR 22.1202(b), Policy, and paragraph
(b)(2) of the clause at FAR 52.222-XX, to be used in procurements where
one of the offerors for the successor contract may have been certified
by the Small Business Administration as a HUBZone small business
concern.
In addition to the exemptions listed above, the E.O. provides, at
section 4, the authority for the head of a contracting department or
agency to waive the application of the E.O. to a contract, subcontract,
or purchase order (or a class of contracts, subcontracts, or purchase
orders) upon a determination that its application would impair the
ability of the Government to procure services on an economical and
efficient basis or would not serve the purposes of the E.O. (see also
29 CFR 9.4(d)). A decision to exempt a procurement or class of
procurements from one or more provisions of the E.O. is a requirements
decision, and the associated analysis, documentation, and other
requirements necessary for an exemption are subject to 29 CFR part 9.
However, the FAR puts contracting officials on notice that any waiver
that is not completed in accordance with 29 CFR part 9 prior to the
contract solicitation date automatically makes the agency waiver
determination inoperative. Failure to comply will require
resolicitation.
The E.O. tasked the Secretary of Labor with enforcement, authorized
the Secretary of Labor, among other things, to issue final orders
prescribing appropriate sanctions and remedies, and required the
Secretary of Labor to issue regulations that implement the requirements
of the E.O.
The E.O. required FAR regulations 180 days after the date of the
E.O. FAR Case 2009-001 was opened February 5, 2009. However, that FAR
case was closed and a new FAR case opened upon publication of the final
DOL rule, which occurred on August 29, 2011.
II. Discussion and Analysis
This proposed rule would add FAR subpart 22.12, entitled
Nondisplacement of Qualified Workers Under Service Contracts, and the
associated clause at FAR 52.222-XX, entitled Nondisplacement of
Qualified Workers. The requirements in FAR subpart 22.12 and the
associated clause are taken directly from E.O. 13495 and the
implementing regulations published August 29, 2011, by the Department
of Labor at 29 CFR part 9 (see 76 FR 53720). However, the FAR does not
repeat elements of the investigative methods, available reviews, or
enforcement mechanisms established by the Department of Labor except as
necessary to ensure that contracting officers and contractors,
including subcontractors, are aware of their requirements and
responsibilities.
For the reasons listed above, FAR subpart 22.12 includes the
following, using as its source both the text of E.O. 13495 and 29 CFR
part 9:
A. The definitions ``service contract'' and ``United States'' at
FAR 22.1201 apply to the new subpart. The definition of ``service
employee'' has been moved to FAR 22.001 to apply to all of part 22.
B. Statement of policy: The sources for the coverage at FAR
22.1202(a) are section 1 of E.O. 13495 and 29 CFR section 9.1. The
coverage applies only to service contracts for performance of the same
or similar services at the same location.
C. Exemptions: The sources for this coverage are section 3 of E.O.
13495 and
[[Page 26234]]
29 CFR 9.4. The five exemptions in the E.O. are repeated in FAR
22.1203-2.
D. Waiver authority and limitations: The sources of this coverage
are section 4 of E.O. 13495 and 29 CFR section 9.4(d), both of which
permit waiver, with certain limitations, of the E.O.'s requirements by
the head of a contracting department or agency. By longstanding FAR
convention, agencies would be able to delegate this authority pursuant
to FAR 1.108(b). DoD, GSA, and NASA are evaluating the need for
potential restrictions on the level to which the authority may be
delegated. When an agency exercises its waiver authority, it must
notify DOL of its decision in accordance with 29 CFR 9.4(d)(2) and
provide the Department of Labor with a copy of its written analysis no
later than 5 business days after the solicitation date which DOL will
then post on its Web site. The waiver authority has specific penalties
for agencies that do not comply. Contracting officers are impacted
because the agency's failure to comply with DOL regulations regarding
waivers makes the waiver inoperative and requires the contracting
officer to insert the clause in the solicitation.
E. Certified employee lists: The sources of this coverage are
section 5 of E.O. 13495 and 29 CFR section 9.12(e). The predecessor
contractor is required to provide a certified list of its employees who
are qualified to work on the successor contract. The contracting
officer must provide the list to the successor contractor in a timely
manner.
F. Required notifications to contractors and employees: The sources
for this coverage are 29 CFR 9.11 and 9.12. 29 CFR 9.11(b) states that
``the Contracting Officer will ensure that the predecessor contractor
provides written notice to its service employees * * * of their
possible right to an offer of employment.'' In addition, 29 CFR 9.12(e)
states that ``the contractor shall, not less than 30 days before
completion of the contactor's performance of services on a contract,
furnish the Contracting Officer with a list of the names of all service
employees working under the contract and its subcontracts at the time
the list is submitted.'' The likelihood exists that, during the initial
implementation of the E.O., service employees of the predecessor
contractor may not receive written notice and Contracting Officers (and
hence successor contractors) may not receive the list 30 days before
the end of the contract. As a general matter, predecessor contractors
will be operating under the existing notification clause set forth at
FAR 52.222-41(n) (applicable to contracts subject to the Service
Contract Act (SCA)). This clause does not address notification to
service employees because there was not previously a right of first
refusal. In addition, the clause permits submission of the list to the
Contracting Officer as few as 10 days prior to completion of the
contract. DoD, GSA, and NASA note that under 29 CFR 9.12(a)(2), a
successor contractor's obligation to offer a right of first refusal
exists even if the information is not provided by the incumbent within
the 30-day window (i.e., ``even if the successor contractor was not
provided a list of the predecessor contractor's employees or the list
did not contain the names of all persons employed during the final
month of contract performance.'') The FAR Council is considering
possible steps that might be taken, as agencies transition to the new
clause, to reduce instances where service employees of the predecessor
contractor and successor contractors do not receive notice of their
rights and successors receive lists less than 30 days before the end of
the contract. One possible step the FAR Council is considering is to
encourage agencies to enter into bilateral modifications (starting with
the largest SCA-covered contracts) that obligate predecessor
contractors to (1) inform their service employees of their right of
first refusal and (2) provide the list to the Contracting Officer no
less than 30 days before contract completion. DoD, GSA, and NASA invite
the public to offer their views and ideas as part of their comments on
this rulemaking.
G. Remedies and sanctions: The sources of this coverage are section
6 of E.O. 13495 and 29 CFR 9.24. This area is within the purview of the
DOL. The FAR, at section 22.1206, addresses the contracting officer's
role.
H. Contract clause: The sources of this coverage are section 5 of
E.O. 13495 and Appendix A of 29 CFR part 9. The paragraphs in the
proposed FAR clause have been reordered by importance and in accordance
with FAR drafting procedures.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DOD, GSA, and NASA do not believe that this rule will 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. Nonetheless, they are preparing an Initial Regulatory Flexibility
Analysis (IRFA), in the interest of soliciting public comments, which
is summarized as follows:
DoD, GSA, and NASA are issuing a proposed rule to amend the
Federal Acquisition Regulation (FAR) to implement Executive Order
(E.O.) 13495, entitled Nondisplacement of Qualified Workers Under
Service Contracts (dated January 30, 2009) and the Department of
Labor final rule implementing the E.O. (29 CFR part 9, published at
76 FR 53720, dated August 29, 2011).
It is the policy of the Federal Government to require service
contractors and their subcontractors under successor contracts to
offer employees of the predecessor contractor and its subcontractors
a right of first refusal of employment for positions for which they
are qualified. The E.O. provides a clause for service contracts that
will succeed service contracts for performance of the same or
similar work at the same location. The E.O. revoked E.O. 13204 of
February 17, 2001, which resulted in the deletion of FAR subpart
22.12 in its entirety. This FAR proposed rule would add subpart
22.12 and a new clause at FAR 52.222-XX.
Executive Order 13495 excludes service contracts and
subcontracts in the following categories:
Under the simplified acquisition threshold.
Awarded through the AbilityOne Program pursuant to the
rules of the Committee for Purchase From People Who Are Blind or
Severely Disabled (41 U.S.C. chapter 85).
Guard, elevator operator, messenger, or custodial
services provided to the Federal Government by sheltered workshops
employing the severely handicapped as described in 40 U.S.C. 593.
Vending facility agreements entered into under the
Randolph-Sheppard Act.
Employees who were hired to work under a Federal
service contract and one or more nonfederal service contracts as
part of a single job, provided that the employees were not deployed
in a manner that was designed to avoid the purposes of E.O. 13495.
The FAR proposed rule adds coverage that allows for compliance
with (a) the HUBZone Program (see FAR subpart 19.13),(b) Executive
Order 11246 (Equal Employment Opportunity), and (c) the Vietnam Era
Veterans' Readjustment Assistance Act of 1974.
[[Page 26235]]
In addition to the exemptions above, the E.O. provides, at
section 4, the authority for the head of a contracting department or
agency to waive the application of the E.O. to a contract,
subcontract, or purchase order (or a class of contracts,
subcontracts, or purchase orders) upon a determination its
application would impair the ability of the Government to procure
services on an economical and efficient basis or would not serve the
purposes of E.O. 13495 (see also 29 CFR 9.4(d)). A decision to
exempt a procurement or class of procurements from one or more
provisions of the E.O. is a requirements decision, and the
associated analysis, documentation, and other requirements necessary
for an exemption are subject to 29 CFR part 9. However, the FAR puts
contracting officials on notice in this FAR proposed rule that any
waiver that is not completed in accordance with 29 CFR part 9 prior
to the contract solicitation date automatically makes the agency
determination inoperative.
The E.O. tasked the Secretary of Labor with enforcement
authority that, among other things, authorizes the Secretary Labor
to issue final orders prescribing appropriate sanctions and
remedies, including but not limited to, orders requiring employment
and payment of wages lost, and required the Secretary to develop
implementing regulations. These matters are not addressed in the FAR
because they are outside the contracting function.
The estimated impact that follows is based entirely upon the DOL
figures reported in the proposed and final rules that it published
implementing E.O. 13495. Although DOL prepared an initial regulatory
flexibility analysis, the agency, in the final rule, certified that
29 CFR part 9 does not have a significant economic impact on a
substantial number of small entities. There is no additional impact
due to the implementation of the DOL regulations in the FAR. The
requirements in the FAR are taken from the E.O. and 29 CFR part 9
without addition.
DOL estimated that 28,800 small entities will be subject to its
regulation and the majority of these small entities will incur
compliance costs of less than $100. The analysis offsets the actions
that a successor contractor would already be taking, such as
determining an individual's suitability for available positions and
documentting employment decisions. Further, DOL assumed a time/cost
savings on the part of small entities because the entities will not
have to engage in recruiting and training an entirely new workforce.
The predecessor contractor is required to provide a certified
list of the names of all service employees working under that
contract, and its subcontracts, to the contracting agency no later
than 30 days before completion of performance of the predecessor
contract. DOL notes, however, that there is little or no cost
associated with this requirement because the certified list is the
same list as the certified seniority list currently required to be
provided under the Service Contract Act clause, FAR 52.222-41(n).
The minimal new reporting requirements mandated by the DOL
implementation of E.O. 13495 are addressed in the information
collection justification submitted by DOL in connection with its
final rule (see 76 FR 53720 dated August 29, 2011). No additional
reporting requirements are imposed by the FAR rule, which merely
relocates the contract clause from the E.O. into FAR part 52.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. The requirements of E.O. 13495 do not allow for any
alternatives.
The FAR Secretariat has submitted a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and
NASA invite comments from small business concerns and other interested
parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2011-028),
in correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however these changes to the FAR do not imposed additional information
collection requirements to the paperwork burden previously approved
under the Office of Management and Budget Control Number 1235-0007 and
1235-XXXX, titled: Labor Standards for Federal Service Contracts--
Regulations 29 CFR, Part 4 and Nondisplacement of Qualified Workers
Under Service Contracts Executive Order 13495, respectively.
List of Subjects in 48 CFR Parts 2, 22, and 52
Government procurement.
Dated: April 30, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 22,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 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 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101, in paragraph (a), in the definition
``United States'' by redesignating paragraphs 4 through 10 as
paragraphs 5 through 11, respectively; and adding a new paragraph 4 to
read as follows:
2.101 Definitions.
* * * * *
(a) * * *
Unites States * * *
(4) For use in subpart 22.13, see the definition at 22.1201.
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
3. Amend section 22.001 by adding, in alphabetical order, the
definition ``Service employee'' to read as follows:
22.001 Definitions.
* * * * *
Service employee means any person engaged in the performance of a
service contract other than any person employed in a bona fide
executive, administrative, or professional capacity, as those terms are
defined in 29 CFR part 541. The term ``service employee'' includes all
such persons regardless of any contractual relationship that may be
alleged to exist between a contractor or subcontractor and such
persons.
* * * * *
22.1001 [Amended]
4. Amend section 22.1001 by removing the definition ``Service
employee''.
5. Add subpart 22.12 to read as follows:
Subpart 22.12--Nondisplacement of Qualified Workers Under Service
Contracts
22.1200 Scope of subpart.
22.1201 Definitions.
22.1202 Policy.
22.1203 Applicability.
22.1203-1 General.
22.1203-2 Exemptions.
22.1203-3 Waiver.
22.1204 Certified employee lists.
22.1205 Notification to contractors and employees.
22.1206 Remedies and sanctions for violations of this subpart.
22.1207 Contract clause.
Subpart 22.12--Nondisplacement of Qualified Workers Under Service
Contracts
22.1200 Scope of subpart.
This subpart prescribes policies and procedures for implementing
Executive Order 13495 of January 30, 2009, Nondisplacement of Qualified
Workers Under Service Contracts.
22.1201 Definitions.
As used in this subpart--
[[Page 26236]]
Service contract means any Government contract, the principal
purpose of which is to furnish services in the United States through
the use of service employees, except as exempted under the Service
Contract Labor Standards (41 U.S.C. chapter 67; see 22.1003-3 and
22.1003-4), or any subcontract at any tier thereunder. See 22.1003-5
and 29 CFR 4.130 for a partial list of services covered by the Act.
United States means the 50 States, the District of Columbia, Puerto
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S.
Virgin Islands, Johnston Island, Wake Island, and outer Continental
Shelf as defined in the outer Continental Shelf Lands Act (43 U.S.C.
1331, et seq.), but does not include any other place subject to United
States jurisdiction or any United States base or possession in a
foreign country (29 CFR 4.112).
22.1202 Policy.
(a) When a service contract succeeds a contract for performance of
the same or similar services at the same location, the successor
contractor and its subcontractors are required to offer those employees
(other than managerial and supervisory employees) that are employed
under the predecessor contract, and whose employment will be terminated
as a result of the award of the successor contract, a right of first
refusal of employment under the contract in positions for which they
are qualified. Executive Order 13495 generally prohibits employment
openings under the successor contract until such right of first refusal
has been provided, when consistent with applicable law.
(b) Nothing in Executive Order 13495 shall be construed to permit a
contractor or subcontractor to fail to comply with any provision of any
other Executive order or law. For example, the requirements of the
HUBZone Program (see subpart 19.13), Executive Order 11246 (Equal
Employment Opportunity), and the Vietnam Era Veterans' Readjustment
Assistance Act of 1974 may conflict with the requirements of Executive
Order 13495. Those laws and Executive orders must be satisfied in
tandem with, and if necessary prior to, the requirements of Executive
Order 13495 and this subpart.
22.1203 Applicability.
22.1203-1 General.
This subpart applies to service contracts that succeed contracts
for the same or similar services at the same location.
22.1203-2 Exemptions.
(a) This subpart does not apply to--
(1) Contracts and subcontracts under the simplified acquisition
threshold;
(2) Contracts or subcontracts awarded pursuant to 41 U.S.C. chapter
85, Committee for Purchase from People Who Are Blind or Severely
Disabled;
(3) Guard, elevator operator, messenger, or custodial services
provided to the Government under contracts or subcontracts with
sheltered workshops employing the ``severely handicapped'' as described
in 40 U.S.C. 593;
(4) Agreements for vending facilities entered into pursuant to the
preference regulations issued under the Randolph Sheppard Act, 20
U.S.C. 107; or
(5) Employees who were hired to work under a Federal service
contract and one or more nonfederal service contracts as part of a
single job, provided that the employees were not deployed in a manner
that was designed to avoid the purposes of this subpart.
(b) The exclusions in paragraphs (a)(2) through (a)(4) of this
subsection apply when either the predecessor or successor contract has
been awarded for services produced or provided by the ``severely
handicapped.''
22.1203-3 Waiver.
(a) If the head of the procuring agency determines in writing that
the application of this subpart would not serve the purposes of
Executive Order 13495 or would impair the ability of the Federal
Government to procure services on an economical and efficient basis,
the agency head may waive some or all of the provisions of this
subpart. Such waivers may be made for a contract, subcontract, or
purchase order, or with respect to a class of contracts, subcontracts,
or purchase orders. See 29 CFR 9.4(d)(4) for regulatory provisions
addressing circumstances in which a waiver could or would not be
appropriate. The waiver must be reflected in a written analysis as
described in 29 CFR 9.4(d)(4)(i) and must be completed prior to the
contract solicitation date, or the waiver is inoperative.
(b)(1) When an agency exercises its waiver authority with respect
to any contract, subcontract, or purchase order, the contracting
officer shall direct the contractor to notify affected workers and
their collective bargaining representative in writing, no later than
five business days after the solicitation issuance date, of the
agency's determination. The notice shall include facts supporting the
determination. The contracting officer's failure to direct that the
contractor provide the notice as provided in this subparagraph shall
render the waiver decision inoperative, and the contracting officer
shall include the clause at 52.222-XX in the solicitation.
(2) Where a contracting agency waives application to a class of
contracts, subcontracts, or purchase orders, the contracting officer
shall, with respect to each individual solicitation, direct the
contractor to notify incumbent workers and their collective bargaining
representatives in writing, no later than five business days after each
solicitation issuance date, of the agency's determination. The notice
shall include facts supporting the determination. The contracting
officer's failure to direct that the contractor provide the notice
provided in this subparagraph shall render the waiver decision
inoperative, and the contracting officer shall include the clause at
52.222-XX in the solicitation.
(3) In addition, the agency shall notify the Department of Labor of
its waiver decision and provide the Department of Labor with a copy of
its written analysis no later than five business days after the
solicitation issuance date. Failure to comply with this notification
requirement shall render the waiver decision inoperative, and the
contracting officer shall include the clause at 52.222-XX in the
solicitation.
22.1204 Certified employee lists.
(a) The predecessor contractor is required to furnish to the
contracting officer, not less than 30 days before completion of the
predecessor contract, a certified list of the names of all service
employees working under the contract and its subcontracts at the time
the list is submitted. The certified list must also contain anniversary
dates of employment of each service employee under the contract and
subcontracts for services. This list is the same as the seniority list
required by paragraph (n) of the clause at 52.222-41, Service Contract
Act of 1965. If there are no changes to the workforce before the
predecessor contract is completed, then the predecessor contractor is
not required to submit a revised list 10 days prior to completion of
performance and the requirements of 52.222-41(n) are met. When there
are changes to the workforce after submission of the 30-day list, the
predecessor contractor shall submit a revised certified list not less
than 10 days prior to performance completion.
(b) The contracting officer shall provide the seniority list to the
successor contractor and, if requested, to employees of the predecessor
[[Page 26237]]
contractor or subcontractors or their authorized representatives.
22.1205 Notification to contractors and employees.
(a) The contracting officer shall ensure that the predecessor
contractor provides written notice to service employees of their
possible right to an offer of employment with the successor contractor.
The written notice shall be--
(1) Posted in a conspicuous place at the worksite; or
(2) Delivered to the employees individually. If such delivery is
via email, the notification must result in an electronic delivery
receipt or some other reliable confirmation that the intended recipient
received the notice.
(b) Contracting officers may advise contractors to provide the
notice in Appendix B to 29 CFR chapter 9. Where a significant portion
of the predecessor contractor's workforce is not fluent in English, the
notice shall be provided in English and language(s) with which
employees are more familiar. English and Spanish versions of the notice
are available on the Department of Labor Web site at https://www.dol.gov/whd.
22.1206 Remedies and sanctions for violations of this subpart.
(a) The Secretary of Labor has the authority to issue orders
prescribing appropriate remedies, including, but not limited to,
requiring the successor contractor to offer employment, in positions
for which the employees are qualified, to employees from the
predecessor contract and payment of wages lost.
(b) After an investigation and a determination by the
Administrator, Wage and Hour Division, Department of Labor, that lost
wages or other monetary relief is due, the Administrator may direct
that so much of the accrued payments due on either the contract or any
other contract between the contractor and the Government shall be
withheld as are necessary to pay the monies due. Upon the final order
of the Secretary of Labor that such monies are due, the Administrator
may direct that such withheld funds be transferred to the Department of
Labor for disbursement.
(c) If the contracting officer or the Administrator, Wage and Hour
Division, Department of Labor, finds that the predecessor contractor
has failed to provide the list required by 22.1204, the contracting
officer may in his or her discretion, or on request by the
Administrator, suspend contract payment until such time as the list is
provided to the contracting officer.
(d) The Secretary of Labor may also suspend or debar a contractor
or subcontractor for a period of up to three years.
22.1207 Contract clause.
The contracting officer shall insert the clause at 52.222-XX,
Nondisplacement of Qualified Workers, in solicitations and contracts
for services (1) defined at 22.1201, (2) that succeed contracts for
performance of the same or similar work at the same location, and (3)
that are not exempted by 22.1203-2 or waived in accordance with
22.1203-3.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Amend section 52.212-5 by--
a. Revising the date of the clause;
b. Redesignating paragraphs (c)(7) and (c)(8) as paragraphs (c)(8)
and (c)(9), respectively;
c. Adding a new paragraph (c)(7);
d. Redesignating paragraphs (e)(1)(xiii) and (e)(1)(xiv) as
paragraphs (e)(1)(xiv) and (e)(1)(xv), respectively; and
e. Adding a new paragraph (e)(1)(xiii) to read as follows.
52.212-5 Contract Terms and Conditions Required To Implement Statutes
of Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes of
Executive Orders--Commercial Items (DATE)
* * * * *
(c) * * *
----(7) 52.222-XX, Nondisplacement of Qualified Workers (DATE)
(E.O. 13495).
* * * * *
(e)(1) * * *
(i) * * *
(xiii) 52.222-XX, Nondisplacement of Qualified Workers (DATE)
(E.O. 13495).
* * * * *
7. Add section 52.222-XX to read as follows:
52.222-XX Nondisplacement of Qualified Workers.
As prescribed in 22.1207, insert the following clause:
Nondisplacement of Qualified Workers (DATE)
(a) Consistent with the efficient performance of this contract,
the Contractor and its subcontractors shall, except as otherwise
provided herein, in good faith offer those employees (other than
managerial and supervisory employees) employed under the predecessor
contract whose employment will be terminated as a result of award of
this contract or the expiration of the contract under which the
employees were hired, a right of first refusal of employment under
this contract in positions for which employees are qualified. The
Contractor and its subcontractors shall determine the number of
employees necessary for efficient performance of this contract and
may elect to employ fewer employees than the predecessor Contractor
employed in connection with performance of the work. Except as
provided in paragraph (b) of this clause, there shall be no
employment opening under this contract, and the Contractor and any
subcontractors shall not offer employment under this contract, to
any person prior to having complied fully with this obligation. The
Contractor and its subcontractors shall make a bona fide express
offer of employment to each employee as provided herein and shall
state the time within which the employee must accept such offer, but
in no case shall the period within which the employee must accept
the offer of employment be less than 10 days.
(b)(1) Notwithstanding the obligation under paragraph (a) of
this clause, the Contractor and any subcontractors (i) may employ
under this contract any employee who has worked for the Contractor
or subcontractor for at least three months immediately preceding the
commencement of this contract and who would otherwise face lay-off
or discharge, (ii) are not required to offer a right of first
refusal to any employee(s) of the predecessor Contractor who are not
service employees within the meaning of the Service Contract Act of
1965, as amended, 41 U.S.C. 6701(3), and (iii) are not required to
offer a right of first refusal to any employee(s) of the predecessor
Contractor whom the Contractor or any of its subcontractors
reasonably believes, based on the particular employee's past
performance, has failed to perform suitably on the job.
(2) In addition, any Contractor or subcontractor that has been
certified by the U.S. Small Business Administration as a HUBZone
small business concern must ensure that it complies with the
statutory and regulatory requirements of the HUBZone Program (e.g.,
it must ensure that at least 35 percent of all of its employees
reside within a HUBZone). The HUBZone small business Contractor or
subcontractor must consider whether it can meet the requirements of
this clause and Executive Order 13495 while also ensuring it meets
the HUBZone Program's requirements.
(3) Nothing in this clause shall be construed to permit a
Contractor or subcontractor to fail to comply with any provision of
any other Executive order or law. For example, the requirements of
the HUBZone Program (see FAR subpart 19.13), Executive Order 11246
(Equal Employment Opportunity), and the Vietnam Era Veterans'
Readjustment Assistance Act of 1974 may conflict with the
requirements of Executive Order 13495. Those laws and Executive
orders must be satisfied in tandem with, and if necessary prior to,
the requirements of Executive Order 13495, 29 CFR part 9, and this
clause.
(c)(1) The Contractor shall, not less than 30 days before
completion of the Contractor's performance of services on a
contract, furnish the Contracting Officer with a certified list of
the names of all service employees working under this contract and
its subcontracts at the
[[Page 26238]]
time the list is submitted. The list shall also contain anniversary
dates of employment of each service employee under this contract and
its predecessor contracts with either the current or predecessor
contractors or their subcontractors. Where changes to the workforce
are made after the submission of the certified list described in
this paragraph, the Contractor shall, in accordance with paragraph
(d) of this clause, not less than 10 days before completion of the
services on a contract, furnish the Contracting Officer with an
updated certified list of the names of all service employees
employed within the last month of contract performance. The updated
list shall also contain anniversary dates of employment, and, where
applicable, dates of separation of each service employee under the
contract and its predecessor contracts with either the current or
predecessor Contractors or their subcontractors. Only Contractors
experiencing a change in their workforce between the 30- and 10-day
periods will have to submit a list in accordance with paragraph (d)
of this clause.
(2) The Contracting Officer will provide the list to the
successor Contractor, and the list shall be provided on request to
employees or their representatives.
(3) The Contracting Officer will direct the predecessor
Contractor to provide written notice (Appendix B to 29 CFR chapter
9) to service employees of their possible right to an offer of
employment with the successor Contractor. Where a significant
portion of the predecessor Contractor's workforce is not fluent in
English, the notice shall be provided in English and language(s)
with which employees are more familiar. The written notice shall
be--
(i) Posted in a conspicuous place at the worksite; or
(ii) Delivered to the employees individually. If such delivery
is via email, the notification must result in an electronic delivery
receipt or some other reliable confirmation that the intended
recipient received the notice.
(d)(1) If required in accordance with 52.222-41(n), the
Contractor shall, not less than 10 days before completion of this
contract, furnish the Contracting Officer a certified list of the
names of all service employees working under this contract and its
subcontracts during the last month of contract performance. The list
shall also contain anniversary dates of employment of each service
employee under this contract and its predecessor contracts either
with the current or predecessor Contractors or their subcontractors.
If there are no changes to the workforce before the predecessor
contract is completed, then the predecessor Contractor is not
required to submit a revised list 10 days prior to completion of
performance and the requirements of 52.222-41(n) are met. When there
are changes to the workforce after submission of the 30-day list,
the predecessor Contractor shall submit a revised certified list not
less than 10 days prior to performance completion.
(2) The Contracting Officer will provide the list to the
successor Contractor, and the list shall be provided on request to
employees or their authorized representatives.
(e) The Contractor and subcontractor shall maintain the
following records (regardless of format, e.g., paper or electronic)
of its compliance with this clause for not less than a period of
three years from the date the records were created.
(1) Copies of any written offers of employment or a
contemporaneous written record of any oral offers of employment,
including the date, location, and attendance roster of any employee
meeting(s) at which the offers were extended, a summary of each
meeting, a copy of any written notice that may have been
distributed, and the names of the employees from the predecessor
contract to whom an offer was made.
(2) A copy of any record that forms the basis for any exemption
claimed under this part.
(3) A copy of the employee list provided to or received from the
contracting agency.
(4) An entry on the pay records of the amount of any retroactive
payment of wages or compensation under the supervision of the
Administrator of the Wage and Hour Division to each employee, the
period covered by such payment, and the date of payment, and a copy
of any receipt form provided by or authorized by the Wage and Hour
Division. The Contractor shall also deliver a copy of the receipt to
the employee and file the original, as evidence of payment by the
Contractor and receipt by the employee, with the Administrator or an
authorized representative within 10 days after payment is made.
(f) Disputes concerning the requirements of this clause shall
not be subject to the general disputes clause (52.233-1) of this
contract. Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR part 9.
Disputes within the meaning of this clause include disputes between
or among any of the following: The Contractor, the contracting
agency, the U.S. Department of Labor, and the employees under the
contract or its predecessor contract. The Contracting Officer will
refer any employee who wishes to file a complaint, or ask questions
concerning this contract clause, to the Branch of Government
Contracts Enforcement, Wage and Hour Division, U.S. Department of
Labor, Washington, DC 20210. Contact email: displaced@dol.gov.
(g) The Contractor shall cooperate in any review or
investigation by the Department of Labor into possible violations of
the provisions of this clause and shall make such records requested
by such official(s) available for inspection, copying, or
transcription upon request.
(h) If it is determined, pursuant to regulations issued by the
Secretary of Labor (Secretary), that the Contractor or its
subcontractors are not in compliance with the requirements of this
clause or any regulation or order of the Secretary, appropriate
sanctions may be imposed and remedies invoked against the Contractor
or its subcontractors, as provided in Executive Order 13495, the
regulations, and relevant orders of the Secretary, or as otherwise
provided by law.
(i) The Contractor shall take such action with respect to any
such subcontract as may be directed by the Secretary as a means of
enforcing such provisions, including the imposition of sanctions for
noncompliance. However, if the Contractor, as a result of such
direction, becomes involved in litigation with a subcontractor, or
is threatened with such involvement, the Contractor may request that
the United States, through the Secretary of Labor, enter into such
litigation to protect the interests of the United States.
(j) The Contracting Officer will withhold, or cause to be
withheld, from the prime Contractor under this or any other
Government contract with the same prime Contractor, such sums as an
authorized official of the Department of Labor requests, upon a
determination by the Administrator, the Administrative Law Judge, or
the Administrative Review Board, that there has been a failure to
comply with the terms of this clause and that wages lost as a result
of the violations are due to employees or that other monetary relief
is appropriate. If the Contracting Officer or the Administrator,
upon final order of the Secretary, finds that the Contractor has
failed to provide a list of the names of employees working under the
contract, the Contracting Officer may, in his or her discretion, or
upon request by the Administrator, take such action as may be
necessary to cause the suspension of the payment of contract funds
until such time as the list is provided to the Contracting Officer.
(k) Subcontracts. In every subcontract over the simplified
acquisition threshold entered into in order to perform services
under this contract, the Contractor shall include a provision that
ensures--
(1) That each subcontractor will honor the requirements of
paragraphs (a) through (b) of this clause with respect to the
employees of a predecessor subcontractor or subcontractors working
under this contract, as well as of a predecessor Contractor and its
subcontractors;
(2) That the subcontractor will provide the Contractor with the
information about the employees of the subcontractor needed by the
Contractor to comply with paragraphs (c) and (d) of this clause; and
(3) The recordkeeping requirements of paragraph (e) of this
clause.
(End of clause)
[FR Doc. 2012-10708 Filed 5-2-12; 8:45 am]
BILLING CODE 6820-EP-P