[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]
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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.
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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: http://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 http://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 http://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