[Federal Register: May 16, 2001 (Volume 66, Number 95)]
[Rules and Regulations]
[Page 27414-27416]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my01-28]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 17, 22, and 36
[FAC 97-26; FAR Case 2001-016; Item II]
RIN 9000-AJ14
Federal Acquisition Regulation; Executive Order 13202,
Preservation of Open Competition and Government Neutrality Towards
Government Contractors' Labor Relations on Federal and Federally Funded
Construction Projects
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement
Executive Order (E.O.) 13202, Preservation of Open Competition and
Government Neutrality Towards Government Contractors' Labor Relations
on Federal and Federally Funded Construction Projects, which prohibits
including requirements for affiliation with a labor organization as a
condition for award of any contract or subcontract for construction or
construction management services.
DATES: Effective Date: May 16, 2001.
Applicability Date: This rule applies to contracts awarded after
February 17, 2001.
Comment Date: Interested parties must submit comments to the FAR
Secretariat at the address shown below on or before July 16, 2001 to be
considered in the formulation of a final rule.
ADDRESSES: Submit written comments to: General Services Administration,
FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Attn: Ms. Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to: farcase.2001-
016@gsa.gov.
Please submit comments only and cite FAC 97-26, FAR case 2001-016
in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 97-26, FAR case 2001-016.
SUPPLEMENTARY INFORMATION:
A. Background
On February 17, 2001, President George W. Bush signed E.O. 13202
revoking E.O. 12836 of February 1, 1993, and Presidential Memorandum of
June 5, 1997, entitled ``Use of Project Labor Agreements for Federal
Construction Projects.'' The E.O. was published in the Federal Register
at 66 FR 11225, February 22, 2001, and amended by E.O. 13208 published
in the Federal Register at 66 FR 18717, April 11, 2001. The E.O. 13202
is intended to improve the internal management of the Executive branch
by--
Promoting and ensuring open competition on Federal and
federally funded or assisted construction projects;
Maintaining Government neutrality towards Government
contractors' labor relations on Federal and federally funded or
assisted construction projects;
Reducing construction costs to the Government and to the
taxpayers;
Expanding job opportunities, especially for small and
disadvantaged businesses;
Preventing discrimination against Government contractors
or their employees based upon labor affiliation or lack thereof,
thereby promoting the economical, nondiscriminatory, and efficient
administration and completion of Federal and federally funded or
assisted construction projects; and
[[Page 27415]]
Preventing the inefficiency that may result from the
disruption of a previously established contractual relationship in
particular cases.
The interim rule amends the FAR to provide language in Part 36 on
the new E.O. The E.O. provides that agencies may not require or
prohibit offerors, contractors, or subcontractors from entering into or
adhering to agreements with one or more labor organizations. It also
permits agency heads to exempt a project from the requirements of the
E.O. under special circumstances, but the exemption may not be related
to the possibility of or an actual labor dispute. The amended E.O. also
allows for exemption of a project governed by a project labor agreement
in place as of February 17, 2001, which had a construction contract
awarded as of February 17, 2001.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration believe that this
interim rule may 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 will assist in
expanding job opportunities for small and small disadvantaged
businesses in Federal and federally funded construction projects.
Therefore, we have prepared an Initial Regulatory Flexibility Analysis
that is summarized as follows:
The rule amends FAR Parts 17, 22, and 36 to implement Executive
Order 13202 that requires that any construction contract awarded
after February 17, 2001, or any obligation of funds pursuant to such
contract, must not require or prohibit offerors, contractors, or
subcontractors to enter into or adhere to agreements with one or
more labor organizations on the same or other related construction
project(s); or otherwise discriminate against offerors, contractors,
or subcontractors for becoming or refusing to become or remaining
signatories or otherwise adhering to agreements with one or more
organizations, on the same or other related construction projects.
The rule will apply to all large and small entities that seek
Federal construction contracts. The rule should have a positive
economic impact on those small businesses that are not union shops,
and that want to bid on Federal construction contracts, because it
may provide additional opportunities for work on Federal
construction projects by non-union small businesses.
We invite comments from small businesses and other interested
parties. We will consider comments from small entities concerning the
affected FAR Parts in accordance with 5 U.S.C. 610. Small entities must
submit such comments separately and should cite 5 U.S.C. 601, et seq.
(FAC 97-26, FAR Case 2001-016), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the interim rule
does not impose or remove information collection requirements that
require the approval of the Office of Management and Budget under 44
U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary to implement Executive Order (E.O.) 13202, Preservation of
Open Competition and Government Neutrality Towards Government
Contractors' Labor Relations on Federal and Federally Funded
Construction Projects, dated February 17, 2001. Section 7 of the E.O.
directed that, within 60 days of the E.O. the Federal Acquisition
Regulations Council amend the FAR to implement the provisions of the
E.O. However, pursuant to Public Law 98-577 and FAR 1.501, public
comments received in response to this interim rule will be considered
in formulating the final rule.
List of Subjects in 48 CFR Parts 17, 22, and 36
Government procurement.
Dated: May 10, 2001.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 17, 22, and 36 as
set forth below:
1. The authority citation for 48 CFR parts 17, 22, and 36 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 17--SPECIAL CONTRACTING METHODS
2. Amend section 17.603 by adding paragraph (c) to read as follows:
17.603 Limitations.
* * * * *
(c) For use of project labor agreements, see 36.202(d).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
3. Amend section 22.101-1 by removing the paragraph designation
``(b)'' and adding ``(b)(1)'' in its place, and adding a new paragraph
(b)(2) to read as follows:
22.101-1 General.
* * * * *
(b)(1) * * *
(2) For use of project labor agreements, see 36.202(d).
* * * * *
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
4. Amend section 36.202 by adding paragraph (d) to read as follows:
36.202 Specifications.
* * * * *
(d) In accordance with Executive Order 13202, of February 17, 2001,
Preservation of Open Competition and Government Neutrality Towards
Government Contractors' Labor Relations on Federal and Federally Funded
Construction Projects, as amended on April 6, 2001--
(1) The Government, or any construction manager acting on behalf of
the Government, must not--
(i) Require or prohibit offerors, contractors, or subcontractors to
enter into or adhere to agreements with one or more labor organizations
(as defined in 42 U.S.C. 2000e(d)) on the same or other related
construction projects; or
(ii) Otherwise discriminate against offerors, contractors, or
subcontractors for becoming, refusing to become, or remaining
signatories or otherwise adhering to agreements with one or more labor
organizations, on the same or other related construction projects.
(2) Nothing in this paragraph prohibits offerors, contractors, or
subcontractors from voluntarily entering into project labor agreements.
(3) The head of the agency may exempt a construction project from
this policy if the agency head finds that, as of February 17, 2001--
(i) The agency or a construction manager acting on behalf of the
[[Page 27416]]
Government had issued or was a party to bid specifications, project
agreements, agreements with one or more labor organizations, or other
controlling documents with respect to that particular project, which
contained any of the requirements or prohibitions in paragraph (d)(1)
of this section; and
(ii) One or more construction contracts subject to such
requirements or prohibitions had been awarded.
(4) The head of the agency may exempt a particular project,
contract, or subcontract from this policy upon a finding that special
circumstances require an exemption in order to avert an imminent threat
to public health or safety, or to serve the national security. A
finding of ``special circumstances'' may not be based on the
possibility or presence of a labor dispute concerning the use of
contractors or subcontractors who are nonsignatories to, or otherwise
do not adhere to, agreements with one or more labor organizations, or
concerning employees on the project who are not members of or
affiliated with a labor organization.
[FR Doc. 01-12245 Filed 5-15-01; 8:45 am]
BILLING CODE 6820-EP-P