[Federal Register: March 7, 2002 (Volume 67, Number 45)]
[Rules and Regulations]
[Page 10527-10529]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07mr02-12]
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Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Chapter 1 and Parts 17, et al.
Federal Acquisition Regulations; Final Rule
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 17, 22, and 36
[FAC 2001-05; FAR Case 2001-016 (stay)]
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; stay with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) published an interim rule in
the Federal Register at 66 FR 27414, May 16, 2001, implementing
Executive Order 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. Executive Order 13202, as amended, is
currently the subject of litigation in the Federal courts, and an
appeal is pending in the United States Court of Appeals for the
District of Columbia Circuit. Pending resolution of this litigation,
the Councils are now issuing a stay of a paragraph of the rule. After
final judicial resolution of the dispute, the Councils will, as
appropriate, issue a notice regarding the status of the rule. The
Councils request comments on this action.
DATES: Effective Date: Effective March 7, 2002 paragraph 36.202(d) of
the interim rule published in the Federal Register at 66 FR 27414, May
16, 2001, is stayed indefinitely.
Comment Date: Interested parties must submit comments to the FAR
Secretariat at the address shown below on or before May 6, 2002 to be
considered in the formulation of a rule concerning the stay and the
length of the stay.
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-
016stay@gsa.gov. Please submit comments only and cite FAC 2001-05, FAR
case 2001-016 (stay), 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 2001-05, FAR case 2001-016 (stay).
SUPPLEMENTARY INFORMATION:
A. Background
On February 17, 2001, President George W. Bush signed Executive
Order 13202 revoking Executive Order 12836 of February 1, 1993, and
Presidential Memorandum of June 5, 1997, entitled ``Use of Project
Labor Agreements for Federal Construction Projects.'' The Executive
order was published in the Federal Register at 66 FR 11225, February
22, 2001, and was amended by Executive Order 13208, which was published
in the Federal Register at 66 FR 18717, April 11, 2001. Executive Order
13202, as amended, 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
Preventing the inefficiency that may result from the
disruption of a previously established contractual relationship in
particular cases.
To implement Executive Order 13202, as amended, an interim rule was
published in the Federal Register on May 16, 2001, 66 FR 27414, as Item
II of FAC 97-26. Consistent with Executive Order 13202, as amended, FAR
36.202(d) of that interim rule specified that agencies could not
require or prohibit offerors, contractors, or subcontractors from
entering into or adhering to agreements with one or more labor
organizations. It also permitted agency heads to exempt a project from
the requirements of the Executive order under special circumstances,
but specified that such an exemption could not be related to a possible
or an actual labor dispute. FAR 36.202(d) also provided for the
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.
Public comments were received from 179 respondents.
Executive Order 13202, as amended, is currently the subject of
litigation in the Federal courts, and an appeal is pending in the
United States Court of Appeals for the District of Columbia Circuit.
Building and Construction Trades Department, AFL-CIO v. Allbaugh, 172
F.Supp. 2d 138 (D.D.C. 2001), appeal pending, No. 01-5436 (D.C. Cir.).
Based on guidance received from the Administrator of the Office of
Federal Procurement Policy, Office of Management and Budget, the
Councils are issuing this notice staying FAR 36.202(d), pending
resolution of the litigation. After final judicial resolution of the
dispute, the Councils will, as appropriate, issue a notice regarding
the status of FAR 36.202(d).
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
stay 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 action stays a rule that would have
assisted in expanding job opportunities for small and small
disadvantaged businesses in Federal construction projects. Therefore,
we have prepared an Initial Regulatory Flexibility Analysis:
Description of the reasons why action by the agency is being
considered: An interim rule was published in the Federal Register on
May 16, 2001, 66 FR 27414, as Item II of
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FAC 97-26. That interim rule amended the FAR to implement Executive
Order 13202, as amended. Consistent with the Executive Order, FAR
36.202(d) 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 these requirements
under special circumstances, as long as the exemption is not related
to the possibility of or an actual labor dispute. FAR 36.202(d) 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. Public comments were
received from 179 respondents. There were no public comments
received in response to the Initial Regulatory Flexibility Analysis.
Executive Order 13202, as amended, is currently the subject of
litigation in the Federal courts, and an appeal is pending in the
United States Court of Appeals for the District of Columbia Circuit.
See Building and Construction Trades Department, AFL-CIO v.
Allbaugh, 172 F.Supp. 2d 138 (D.D.C. 2001), appeal pending, No. 01-
5436 (D.C. Cir.). Based on guidance received from the Administrator
of the Office of Federal Procurement Policy, Office of Management
and Budget, the Councils are staying FAR 36.202(d) pending
resolution of the litigation. After final judicial resolution of the
dispute, the Councils will, as appropriate, issue a notice regarding
the status of FAR 36.202(d).
Succinct statement of the objectives of, and legal basis for,
the interim rule stay: This action stays FAR 36.202(d), which
implemented Executive Order 13202, as amended, pending judicial
resolution of litigation related to the Executive Order.
Description of, and where feasible, estimate of the number of
small entities to which the interim rule stay will apply: The stay
applies to all large and small entities that seek construction
contracts that are awarded by executive agencies. For fiscal year
2001, through the third quarter, there were 1,143 construction
contract actions awarded. It is not known how many were union or
nonunion. The interim rule published as Item II of FAC 97-26 had an
Initial Regulatory Flexibility Act statement that said it was likely
to have an economic impact on entities that had nonunion shops
because it would have provided additional work opportunities.
Description of projected reporting, recordkeeping, and other
compliance requirements of the interim rule stay, including an
estimate of the classes of small entities that will be subject to
the requirement and the type of professional skills necessary for
preparation of the report or record: The interim rule stay imposes
no reporting, recordkeeping, or other compliance requirements.
Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
interim rule stay: The interim rule stay does not duplicate,
overlap, or conflict with any other Federal rules.
Description of any significant alternatives to the interim rule
stay that accomplish the stated objectives of applicable statutes
and that minimize any significant economic impact of the interim
rule stay on small entities: There are no practical alternatives
that will accomplish the objectives of this stay.
We invite comments from small businesses and other interested
parties. We will consider comments from small entities concerning the
affected FAR Parts 17, 22, and 36 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 2001-05, FAR Case 2001-016 (stay)), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the interim stay
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 Stay
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 stay without prior opportunity for public comment. This action
is necessary because Executive Order 13202, as amended, which FAR
36.202(d) implements, is currently the subject of litigation in the
Federal courts, and an appeal is pending in the United States Court of
Appeals for the District of Columbia Circuit. However, pursuant to
Public Law 98-577 and FAR 1.501, public comments received in response
to this interim rule stay will be considered in formulating a final
rule.
List of Subjects in 48 CFR Parts 17, 22, and 36
Government procurement.
Dated: March 1, 2002.
Al Matera,
Director, Acquisition Policy Division.
Federal Acquisition Circular
Federal Acquisition Circular (FAC) 2001-05 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and
Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 2001-05 are
effective March 7, 2002.
Dated: February 28, 2002.
Deidre A. Lee,
Director, Defense Procurement.
Dated: February 27, 2002.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy,
General Services Administration.
Dated: February 27, 2002.
Anne Guenther,
Acting Assistant Administrator for Procurement, National Aeronautics
and Space Administration.
Accordingly, paragraph 36.202(d) of the interim rule amending 48
CFR parts 17, 22, and 36, which was published on May 16, 2001 in the
Federal Register at 66 FR 27414 as Item II of FAC 97-26, is stayed
indefinitely.
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
[FR Doc. 02-5385 Filed 3-6-02; 8:45 am]
BILLING CODE 6820-EP-P