[Federal Register: December 3, 1999 (Volume 64, Number 232)]
[Proposed Rules]
[Page 67991-67996]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de99-41]
[[Page 67991]]
_______________________________________________________________________
Part V
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 12, 13, 22, and 52
Federal Acquisition Regulation; Veterans' Employment; Proposed Rule
[[Page 67992]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12, 13, 22, and 52
[FAR Case 1998-614]
RIN 9000-AI46
Federal Acquisition Regulation; Veterans' Employment
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement Sections 7 and 8 of
the Veterans Employment Opportunities Act of 1998. Section 7 expands
and improves veterans' employment emphasis under Federal contracts.
Section 8 amends the veterans' employment reporting requirements. This
proposed rule also implements the Department of Labor's (DoL) Office of
Federal Contract Compliance Programs (OFCCP) final rule amending 41 CFR
Part 60-250, Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Special Disabled Veterans and
Veterans of the Vietnam Era, which clarifies DoL implementation of the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended.
DATES: Comments should be submitted on or before February 1, 2000 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 1800 F Street,
NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
Address e-mail comments submitted via the Internet to:
farcase.1998-614@gsa.gov.
Please submit comments only and cite FAR case 1998-614 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Jack O'Neill, Procurement Analyst, at (202) 501-
3856. Please cite FAR case 1998-614.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed FAR rule amends FAR 12.503, 13.005, 22.13, and the
associated clauses and provisions at FAR Part 52 to implement recent
statutory and regulatory changes relating to veterans' employment
opportunities and reporting. Paragraph (a) of Section 7 of the
Veterans' Employment Opportunities Act of 1998 (Pub. L. 105-339) amends
38 U.S.C. 4212 in paragraph (a) to increase the threshold for covered
contracts from $10,000 to $25,000, and expands applicability beyond
``special disabled veterans and veterans of the Vietnam era'' to
include other eligible veterans, (i.e., any other veterans who served
on active duty during a war or in a campaign or an expedition for which
a campaign badge has been authorized).
Paragraph (b) of Section 7 amends 31 U.S.C. 1354 to specifically
prohibit contracting officers from obligating or expending appropriated
funds to enter into covered contracts with a contractor that does not
meet veteran's employment reporting requirements (VETS-100 Report). In
accordance with 41 U.S.C. 429 and 41 U.S.C. 430, the Councils have
listed this law as inapplicable to acquisitions not greater than the
simplified acquisition threshold and acquisitions of commercial items.
Paragraph (b) also requires the DoL to maintain a database on those
contractors that have submitted the required VETS-100 Reports for the
current reporting period. However, the database will not contain data
on whether those contractors that did not submit reports were required
to do so. The Councils have added a new provision by which the offeror
represents that, if subject to the reporting requirements of 38 U.S.C.
4212(d), it has not failed to submit the most recent required VETS-100
Reports. This representation is the least burdensome way to comply with
the prohibitions of 31 U.S.C. 1354.
Specific attention is directed to the proposed changes to FAR
12.503, Applicability of certain laws to Executive agency contracts for
the acquisition of commercial items, and FAR 13.005, Federal
Acquisition Streamlining Act of 1994 list of inapplicable laws. 31
U.S.C. 1354(a) was enacted subsequent to the Federal Acquisition
Streamlining Act of 1994 (FASA). As such, it does not apply to
commercial items or those simplified acquisitions unless the Federal
Acquisition Regulatory Council decides to apply them. This rule lists
31 U.S.C. 1354(a) as not applicable to commercial item contracts and
acquisitions not greater than the simplified acquisition threshold of
$100,000 pursuant to FASA at 41 U.S.C. 429 and 41 U.S.C. 430. This is
to avoid encumbering these procurements with Government-unique
requirements. Accordingly, the representation in the provision at
52.222-38, Compliance with Veterans' Employment Reporting Requirements,
is not applicable to commercial item acquisitions and acquisitions not
greater than the simplified acquisition threshold of $100,000.
The Department of Labor believes a wider application of the funding
restrictions, covering commercial items and acquisitions not greater
than the simplified acquisition threshold of $100,000, would provide
better enforcement of the provisions of the VETS-100 reporting
requirement. The Department of Labor believes that all contractors, at
a minimum, should self certify that they are in compliance with the
VETS-100 reporting requirements. The Federal Acquisition Regulatory
Council is interested in the publics views as to whether the
representation should be applied to commercial items and those
simplified acquisitions.
Section 8 of Public Law 105-339 amends 38 U.S.C. 4212(d)(1) to
require reporting of the maximum number and the minimum number of
employees during the period covered by the report. We have added this
requirement to the clause at 52.222-37, which summarizes the DoL
reporting requirements.
The OFCCP issued a final rule in the Federal Register on November
4, 1998 (63 FR 59630), that revised 41 CFR 60-250, regulations that
implement the Vietnam Era Veterans' Readjustment Assistance Act of
1974, as amended (38 U.S.C. 4212). The rule was effective on January 4,
1999.
In conformance with the Veterans Employment Opportunities Act of
1998 and the OFCCP final rule, this proposed rule revises the clause at
52.222-35, adding definitions of ``special disabled veterans,''
``qualified special disabled veteran,'' ``other eligible veteran,'' and
``executive and top management,'' and changes the definition of
``veteran of the Vietnam Era.'' The clause requires contractors to list
all employment openings, except executive and top management, with the
local employment service office. Contractors may fulfill the listing
requirement by listing jobs electronically with Americas Job Bank. The
requirements for posting employment notices have also changed.
[[Page 67993]]
This is not a significant regulatory action and, therefore, was not
subject to Office of Management and Budget review under Section 6(b) of
Executive Order 12866, Regulatory Planning and Review, dated September
30, 1993. This rule is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
implements the Contracting Restrictions of the Veterans Employment
Opportunities Act of 1998 (Pub. L. 105-339) which will only affect
offerors who were required to submit reports but did not do so; and
also, implements the OFCCP final rule, which DoL has certified will not
have a significant economic impact on a substantial number of small
businesses. An Initial Regulatory Flexibility Analysis has, therefore,
not been performed. Comments are invited from small businesses and
other interested parties. The Councils will consider comments from
small entities concerning the affected FAR subparts in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C. 601, et seq. (FAR case 1998-614), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose any reporting and recordkeeping
requirements beyond those imposed by the DoL, for which DoL obtains the
required approval from the Office of Management and Budget (OMB Control
Numbers 1215-0072, 1215-0163, and 1293-0005).
List of Subjects in 48 CFR Parts 12, 13, 22, and 52
Government procurement.
Dated: November 29, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 12, 13, 22,
and 52 be amended as set forth below:
1. The authority citation for 48 CFR parts 12, 13, 22, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 12--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 12.503 to add paragraph (a)(5) to read as follows:
12.503 Applicability of certain laws to Executive agency contracts for
the acquisition of commercial items.
(a) * * *
(5) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for
contracts with entities not meeting veterans' employment reporting
requirements (see 22.1302).
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
3. Amend section 13.005 to add paragraph (a)(10) to read as
follows:
13.005 Federal Acquisition Streamlining Act of 1994 list of
inapplicable laws.
(a) * * *
(10) 31 U.S.C. 1354(a) (Limitation on use of appropriated funds for
contracts with entities not meeting veterans' employment reporting
requirements).
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
4. Revise Subpart 22.13 to read as follows:
Subpart 22.13--Special Disabled Veterans, Veterans of the Vietnam Era,
and Other Eligible Veterans
Sec.
22.1300 Scope of subpart.
22.1301 Definition.
22.1302 Policy.
22.1303 Applicability.
22.1304 Procedures.
22.1305 Waivers.
22.1306 Department of Labor notices and reports.
22.1307 Collective bargaining agreements.
22.1308 Complaint procedures.
22.1309 Actions because of noncompliance.
22.1310 Solicitation provision and contract clauses.
22.1300 Scope of subpart.
This subpart prescribes policies and procedures for implementing
the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38
U.S.C. 4211 and 4212) (the Act); Executive Order 11701, January 24,
1973 (3 CFR 1971-1975 Comp., p. 752); the regulations of the Secretary
of Labor (41 CFR Part 60-250 and Part 61-250); and the Veterans
Employment Opportunities Act of 1998, Public Law 105-339.
22.1301 Definition.
United States, as used in this subpart, means the States, the
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, American Samoa, Guam, the Virgin
Islands of the United States, and Wake Island.
22.1302 Policy.
(a) Contractors and subcontractors, when entering into contracts or
subcontracts subject to the Act, must--
(1) List all employment openings, with the appropriate local
employment service office except for--
(i) Executive and top management positions;
(ii) Positions to be filled from within the contractor's
organization; and
(iii) Positions lasting three days or less.
(2) Take affirmative action to employ, and advance in employment,
qualified special disabled veterans, veterans of the Vietnam era, and
other eligible veterans without discrimination based on their
disability or veteran's status.
(b) Except for contracts for commercial items or contracts that do
not exceed the simplified acquisition threshold, contracting officers
must not obligate or expend funds appropriated for the agency for a
fiscal year to enter into a contract for the procurement of personal
property and nonpersonal services (including construction) with a
contractor that has not submitted a required annual Form VETS-100,
Federal Contractor Veterans' Employment Report (VETS-100 Report), with
respect to the preceding fiscal year if the contractor was subject to
the reporting requirements of 38 U.S.C. 4212(d) for that fiscal year.
22.1303 Applicability.
(a) The Act applies to all contracts and subcontracts for personal
property and nonpersonal services (including construction) of $25,000
or more except as waived by the Secretary of Labor.
(b) The requirements of the clause at 52.222-35, Equal Opportunity
for Special Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans, in any contract with a State or local government (or
any agency, instrumentality, or subdivision) do not apply to any
agency, instrumentality, or subdivision of that government that does
not participate in work on or under the contract.
(c) The Act requires submission of the VETS-100 Report in all cases
where the contractor or subcontractor has received an award of $25,000
or more, except for awards to State and local governments, and foreign
organizations where the workers are recruited outside of the United
States.
22.1304 Procedures.
To verify if a proposed contractor is current with its submission
of the VETS-100 Report, the contracting officer may--
(a) Query the Department of Labor's VETS-100 Database via the
Internet at
[[Page 67994]]
http://nvti.cudenver.edu/vets/vets100Search.htm using the Validation
Code ``vets'' to proceed with the search in the database; or
(b) Contact the VETS-100 Reporting Systems via e-mail at
VETS100@dyncorp.com for confirmation, if the proposed contractor
represents that it has submitted the VETS-100 Report and is not listed
in the database.
22.1305 Waivers.
(a) The Deputy Assistant Secretary for Federal Contract Compliance
Programs (OFCCP), Department of Labor (Deputy Assistant Secretary of
Labor), may waive any or all of the terms of the clause at 52.222-35,
Equal Opportunity for Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans for--
(1) Any contract if a waiver is deemed to be in the national
interest; or
(2) Groups or categories of contracts if a waiver is in the
national interest and it is--
(i) Impracticable to act on each request individually; and
(ii) Determined that the waiver will substantially contribute to
convenience in administering the Act.
(b) The head of the contracting agency may waive any requirement in
this subpart when it is determined that the contract is essential to
the national security, and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency must notify the
Deputy Assistant Secretary of Labor in writing within 30 days.
(c) The contracting officer must submit requests for waivers in
accordance with agency procedures.
(d) The Deputy Assistant Secretary of Labor may withdraw an
approved waiver for a specific contract or group of contracts to be
awarded, when in the Deputy's judgment such action is necessary to
achieve the purposes of the Act. The withdrawal does not apply to
awarded contracts. For procurements entered into by sealed bidding,
such withdrawal does not apply unless the withdrawal is made more than
10 calendar days before the date set for the opening of bids.
22.1306 Department of Labor notices and reports.
(a) The contracting officer must furnish to the contractor
appropriate notices for posting when they are prescribed by the Deputy
Assistant Secretary of Labor.
(b) The Act requires contractors and subcontractors to submit a
report at least annually to the Secretary of Labor regarding employment
of special disabled veterans, veterans of the Vietnam era, and other
eligible veterans unless all of the terms of the clause at 52.222-35,
Equal Opportunity for Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans, have been waived (see
22.1305). The contractor and subcontractor must use Standard Form VETS-
100, Federal Contractor Veterans' Employment Report, to submit the
required reports.
22.1307 Collective bargaining agreements.
If performance under the clause at 52.222-35, Equal Opportunity for
Special Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans, may necessitate a revision of a collective
bargaining agreement, the contracting officer must advise the affected
labor unions that the Department of Labor (DoL) will give them
appropriate opportunity to present their views. However, neither the
contracting officer nor any representative of the contracting officer
may discuss with the contractor or any labor representative any aspect
of the collective bargaining agreement.
22.1308 Complaint procedures.
Following agency procedures, the contracting office must forward
any complaints received about the administration of the Act to the
Veterans' Employment and Training Service of the DoL, or through the
local Veterans' Employment Representative or designee, at the local
State employment office. The Deputy Assistant Secretary of Labor is
responsible for investigating complaints.
22.1309 Actions because of noncompliance.
The contracting officer must take necessary action as soon as
possible upon notification by the appropriate agency official to
implement any sanctions imposed on a contractor by the Department of
Labor for violations of the clause at 52.222-35, Equal Opportunity for
Special Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans. These sanctions (see 41 CFR 60-250.66) may include--
(a) Withholding payments;
(b) Termination or suspension of the contract; or
(c) Debarment of the contractor.
22.1310 Solicitation provision and contract clauses.
(a)(1) Insert the clause at 52.222-35, Equal Opportunity for
Special Disabled Veterans, Veterans of the Vietnam Era, and Other
Eligible Veterans, in solicitations and contracts when the contract is
for $25,000 or more or is expected to amount to $25,000 or more, except
when--
(i) Work is performed outside the United States by employees
recruited outside the United States; or
(ii) The Deputy Assistant Secretary of Labor has waived, in
accordance with 22.1305(a) or the head of the contracting agency has
waived, in accordance with 22.1305(b) all of the terms of the clause.
(2) If the Deputy Assistant Secretary of Labor or the head of the
contracting agency waives one or more (but not all) of the terms of the
clause, use the basic clause with its Alternate I.
(b) Insert the clause at 52.222-37, Employment Reports on Special
Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible
Veterans, in solicitations and contracts containing the clause at
52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans.
(c) Insert the provision at 52.222-38, Compliance with Veterans'
Employment Reporting Requirements, in solicitations when it is
anticipated the contract award will exceed the simplified acquisition
threshold and the contract is not for acquisition of commercial items.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Amend section 52.212-5 by revising the date of the clause,
paragraphs (b)(13) and (b)(15); by removing from the introductory text
of paragraph (e) of the clause ``or'' and adding ``and'' in its place;
and revising (e)(2) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (Date)
* * * * *
(b) * * *
(13) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212).
* * * * *
(15) 52.222-37, Employment Reports on Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212).
* * * * *
(e) * * *
(2) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212);
* * * * *
[[Page 67995]]
6. Amend section 52.213-4 to revise the date of the clause; in
paragraph (b)(1) by redesignating (b)(1)(ii) through (b)(1)(x) as
(b)(1)(iii) through (b)(1)(xi), and by adding (b)(1)(ii). Revise newly
redesignated paragraphs (b)(1)(iv) and (b)(1)(vi) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Date)
* * * * *
(b) * * *
(1) * * *
(ii) 52.222-21, Prohibition of Segregated Facilities (Feb. 1999)
(E.O. 11246) (Applies to contracts over $10,000).
* * * * *
(iv) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (DATE) (38
U.S.C. 4212) (Applies to contracts over $25,000).
* * * * *
(vi) 52.222-37, Employment Reports on Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (DATE) (38
U.S.C. 4212) (Applies to contracts over $25,000).
* * * * *
7. Revise the section heading and text of 52.222-35 to read as
follows:
52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans.
As prescribed in 22.1310(a)(1), insert the following clause:
Equal Opportunity for Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans (Date)
(a) Definitions. As used in this clause--
All employment openings means all positions except executive and
top management, those positions that will be filled from within the
Contractor's organization, and positions lasting 3 days or less.
This term includes full-time employment, temporary employment of
more than 3 days' duration, and part-time employment.
Executive and top management means any employee--
(1) Whose primary duty consists of the management of the
enterprise in which the individual is employed or of a customarily
recognized department or subdivision thereof;
(2) Who customarily and regularly directs the work of two or
more other employees;
(3) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring or firing and
as to the advancement and promotion or any other change of status of
other employees will be given particular weight;
(4) Who customarily and regularly exercises discretionary
powers; and
(5) Who does not devote more than 20 percent or, in the case of
an employee of a retail or service establishment, who does not
devote as much as 40 percent of total hours of work in the work week
to activities that are not directly and closely related to the
performance of the work described in paragraphs (1) through (4) of
this definition. This paragraph (5) does not apply in the case of an
employee who is in sole charge of an establishment or a physically
separated branch establishment, or who owns at least a 20 percent
interest in the enterprise in which the individual is employed.
Other eligible veteran means any other veteran who served on
active duty during a war or in a campaign or expedition for which a
campaign badge has been authorized.
Positions that will be filled from within the Contractor's
organization means employment openings for which the Contractor will
give no consideration to persons outside the Contractor's
organization (including any affiliates, subsidiaries, and parent
companies) and includes any openings the Contractor proposes to fill
from regularly established ``recall'' lists. The exception does not
apply to a particular opening once an employer decides to consider
applicants outside of its organization.
Qualified special disabled veteran means a special disabled
veteran who satisfies the requisite skill, experience, education,
and other job-related requirements of the employment position such
veteran holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of such position.
Special disabled veteran means--
(1) A veteran who is entitled to compensation (or who but for
the receipt of military retired pay would be entitled to
compensation) under laws administered by the Department of Veterans
Affairs for a disability--
(i) Rated at 30 percent or more; or
(ii) Rated at 10 or 20 percent in the case of a veteran who has
been determined under 38 U.S.C. 3106 to have a serious employment
handicap (i.e., a significant impairment of the veteran's ability to
prepare for, obtain, or retain employment consistent with the
veteran's abilities, aptitudes, and interests); or
(2) A person who was discharged or released from active duty
because of a service-connected disability.
Veteran of the Vietnam era means a person who--
(1) Served on active duty for a period of more than 180 days and
was discharged or released from active duty with other than a
dishonorable discharge, if any part of such active duty occurred--
(i) In the Republic of Vietnam between February 28, 1961, and
May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other
cases; or
(2) Was discharged or released from active duty for a service-
connected disability if any part of the active duty was performed--
(i) In the Republic of Vietnam between February 28, 1961, and
May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other
cases.
(b) General. (1) The Contractor shall not discriminate against
the individual because the individual is a special disabled veteran,
a veteran of the Vietnam era, or other eligible veteran, regarding
any position for which the employee or applicant for employment is
qualified. The Contractor shall take affirmative action to employ,
advance in employment, and otherwise treat qualified special
disabled veterans, veterans of the Vietnam era, and other eligible
veterans without discrimination based upon their disability or
veterans' status in all employment practices such as--
(i) Recruitment, advertising, and job application procedures;
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring;
(iii) Rate of pay or any other form of compensation and changes
in compensation;
(iv) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether
or not administered by the Contractor;
(vii) Selection and financial support for training, including
apprenticeship, and on-the-job training under 38 U.S.C. 3687,
professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training;
(viii) Activities sponsored by the Contractor including social
or recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(2) The Contractor shall comply with the rules, regulations, and
relevant orders of the Secretary of Labor issued under the Vietnam
Era Veterans' Readjustment Assistance Act of 1974 (the Act), as
amended (38 U.S.C. 4212).
(c) Listing openings. (1) The Contractor shall immediately list
all employment openings that exist at the time of the execution of
this contract and those which occur during the performance of this
contract, including those not generated by this contract, and
including those occurring at an establishment of the Contractor
other than the one where the contract is being performed, but
excluding those of independently operated corporate affiliates, at
an appropriate local public employment service office of the State
wherein the opening occurs. Listing employment openings with the
U.S. Department of Labor's America's Job Bank shall satisfy the
requirement to list jobs with the local employment service office.
(2) The Contractor shall make the listing of employment openings
with the local employment service office at least concurrently with
using any other recruitment source or effort and shall involve the
normal obligations of placing a bona fide job order, including
accepting referrals of veterans and non-veterans. This listing of
employment openings does not require hiring any particular job
applicant or hiring from any particular group of job applicants and
is not intended to relieve the Contractor from any requirements of
Executive orders or
[[Page 67996]]
regulations concerning nondiscrimination in employment.
(3) Whenever the Contractor becomes contractually bound to the
listing terms of this clause, it shall advise the State public
employment agency in each State where it has establishments of the
name and location of each hiring location in the State. As long as
the Contractor is contractually bound to these terms and has so
advised the State agency, it need not advise the State agency of
subsequent contracts. The Contractor may advise the State agency
when it is no longer bound by this contract clause.
(d) Applicability. This clause does not apply to the listing of
employment openings that occur and are filled outside the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, American Samoa, Guam,
the Virgin Islands of the United States, and Wake Island.
(e) Postings. (1) The Contractor shall post employment notices
in conspicuous places that are available to employees and applicants
for employment.
(2) The employment notices shall--
(i) State the rights of applicants and employees as well as the
Contractor's obligation under the law to take affirmative action to
employ and advance in employment qualified employees and applicants
who are special disabled veterans, veterans of the Vietnam era, and
other eligible veterans; and
(ii) Be in a form prescribed by the Deputy Assistant Secretary
for Federal Contract Compliance Programs, Department of Labor
(Deputy Assistant Secretary of Labor), and provided by or through
the Contracting Officer.
(3) The Contractor shall ensure that applicants or employees who
are special disabled veterans are informed of the contents of the
notice (e.g., the Contractor may have the notice read to a visually
disabled veteran, or may lower the posted notice so that it can be
read by a person in a wheelchair).
(4) The Contractor shall notify each labor union or
representative of workers with which it has a collective bargaining
agreement, or other contract understanding, that the Contractor is
bound by the terms of the Act and is committed to take affirmative
action to employ, and advance in employment, qualified special
disabled veterans, veterans of the Vietnam era, and other eligible
veterans.
(f) Noncompliance. If the Contractor does not comply with the
requirements of this clause, the Government may take appropriate
actions under the rules, regulations, and relevant orders of the
Secretary of Labor issued pursuant to the Act.
(g) Subcontracts. The Contractor shall insert the terms of this
clause in all subcontracts or purchase orders of $25,000 or more
unless exempted by rules, regulations, or orders of the Secretary of
Labor. The Contractor shall act as specified by the Deputy Assistant
Secretary of Labor to enforce the terms, including action for
noncompliance.
(End of clause)
Alternate I (Date). As prescribed in 22.1310(a)(2), add the
following as a preamble to the clause:
Notice: The following term(s) of this clause are waived for this
contract: ________________ [List term(s)].
8. Revise the section heading and text of 52.222-37 to read as
follows:
52.222-37 Employment Reports on Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible Veterans.
As prescribed in 22.1310(b), insert the following clause:
Employment Reports on Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans (Date)
(a) Unless the Contractor is a State or local government agency,
the Contractor shall report at least annually, as required by the
Secretary of Labor, on--
(1) The number of special disabled veterans, the number of
veterans of the Vietnam era, and other eligible veterans in the
workforce of the Contractor by job category and hiring location; and
(2) The total number of new employees hired during the period
covered by the report, and of the total, the number of special
disabled veterans, the number of veterans of the Vietnam era, and
the number of other eligible veterans; and
(3) The maximum number and the minimum number of employees of
such Contractor during the period covered by the report.
(b) The Contractor shall report the above items by completing
the Form VETS-100, entitled ``Federal Contractor Veterans'
Employment Report (VETS-100 Report)''.
(c) The Contractor shall submit VETS-100 Reports no later than
September 30 of each year beginning September 30, 1988.
(d) The employment activity report required by paragraph (a)(2)
of this clause shall reflect total hires during the most recent 12-
month period as of the ending date selected for the employment
profile report required by paragraph (a)(1) of this clause.
Contractors may select an ending date--
(1) As of the end of any pay period during the period June
through August 1st of the year the report is due; or
(2) As of December 31, if the Contractor has prior written
approval from the Equal Employment Opportunity Commission to do so
for purposes of submitting the Employer Information Report EEO-1
(Standard Form 100).
(e) The Contractor shall base the count of veterans reported
according to paragraph (a) of this clause on voluntary disclosure.
Each Contractor subject to the reporting requirements at 38 U.S.C.
4212 shall invite all special disabled veterans, veterans of the
Vietnam era, and other eligible veterans who wish to benefit under
the affirmative action program at 38 U.S.C. 4212 to identify
themselves to the Contractor. The invitation shall state that--
(1) The information is voluntarily provided;
(2) The information will be kept confidential;
(3) Disclosure or refusal to provide the information will not
subject the applicant or employee to any adverse treatment; and
(4) The information will be used only in accordance with the
regulations promulgated under 38 U.S.C. 4212.
(f) The Contractor shall insert the terms of this clause in all
subcontracts or purchase orders of $25,000 or more unless exempted
by rules, regulations, or orders of the Secretary of Labor.
(End of clause)
9. Add section 52.222-38 to read as follows:
52.222-38 Compliance with Veterans' Employment Reporting Requirements.
As prescribed in 22.1310(c), insert the following provision:
Compliance With Veterans' Employment Reporting Requirements (Date)
By submission of its offer, the offeror represents that, if it
is subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e.,
if it has any contract containing Federal Acquisition Regulation
clause 52.222-37, Employment Reports on Disabled Veterans, Veterans
of the Vietnam Era, and Other Eligible Veterans), it has submitted
the most recent VETS-100 Report required by that clause.
(End of provision)
10. Revise the date of the clause and paragraph (c)(2) of 52.244-6
to read as follows:
52.244-6 Subcontracts for Commercial Items and Commercial Components.
* * * * *
Subcontracts for Commercial Items and Commercial Components (Date)
* * * * *
(c) * * *
(2) 52.222-35, Equal Opportunity for Special Disabled Veterans,
Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C.
4212(a));
* * * * *
[FR Doc. 99-31347 Filed 12-2-99; 8:45 am]
BILLING CODE 6820-EP-P