E8-18290. General Services Administration Acquisition Regulation; Rewrite of GSAR Part 522, Application of Labor Laws to Government Acquisitions

AGENCIES:

General Services Administration (GSA), Office of the Chief Acquisition Officer.

ACTION:

Final rule.

SUMMARY:

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to revise language pertaining to application of labor laws to Government acquisitions. This rule is a product of the General Services Administration Acquisition Manual (GSAM) Rewrite Initiative, undertaken by GSA to revise the regulation to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures for contractors, offerors, and GSA contracting personnel. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

DATES:

Effective Date: August 8, 2008.

FOR FURTHER INFORMATION CONTACT

The Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC, 20405, [phone], for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ernest Woodson, Procurement Analyst, at [phone]. Please cite Amendment 2008-01, GSAR case 2006-G505, (Change 22).

SUPPLEMENTARY INFORMATION:

A. Background

The GSAR Rewrite Project

GSA published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register at 71 FR 7910, February 15, 2006 with request for comments because the agency was beginning the review and update of the General Services Administration Acquisition Regulation (GSAR).

This GSAR rewrite has—

• Changed “you” to “contracting officer.”
• Maintained consistency with the FAR but eliminated duplication.
• Revised GSAR sections that are out of date or imposed inappropriate burdens on the Government or contractors, especially small businesses.
• Streamlined and simplified procedures, guidance, and policies wherever possible.

In addition, GSA has recently reorganized into two (2) operating services rather than three (3). Therefore, the reorganization of the Federal Supply Service (FSS) and the Federal Technology Service (FTS) into the Federal Acquisition Service (FAS) was considered in the Rewrite Initiative.

The Rewrite of Part 522

This final rule contains the revisions made to Part 522, Application of Labor Laws to Government Acquisitions. There are no substantive changes to the policies. Information previously contained in GSAR 522.101-1 regarding the necessary impartiality of GSA personnel in disputes between labor and contractor management is deleted as unnecessary because it repeats Federal Acquisition Regulation (FAR) language. GSAR 522.101-1(b) adds language to require contracting officers to notify the Office of General Counsel and the agency labor advisor when they are contacted by external organizations. GSAR 522.103-5 is revised to clarify that FAR clause 52.222-1, Notice to the Government of Labor Disputes, must be inserted in solicitations and contracts for DX-rated orders under the Defense Priorities and Allocations System (DPAS). GSAR Subpart 522.4, Labor Standards for Contracts, is deleted in its entirety because of its potential for conflict with FAR Subpart 22.4.

GSAR 522.804-1(b) is revised to indicate that contractors, subcontractors, and financial institutions must develop a written affirmative action compliance program for each of its establishments regardless of the contract or holding value, in accordance with 41 CFR 60-1.40. Paragraph 522.805(b) is revised to add websites that list the various Office of Federal Contract Compliance Programs (OFCCP) Regional Offices.

Discussion of Comments

As a result of the ANPR, GSA did not receive any comments pertaining to GSAR Part 522.

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 General Services Administration certifies that this final rule will not 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 no new requirements are being placed on the vendor community. No comments on this issue were received from small business concerns or other interested parties.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C.3501, et seq.

List of Subjects in 48 CFR Part 522

• Government procurement

Dated: July 29, 2008.

David A. Drabkin,

Senior Procurement Executive, Office of the Chief Acquisition Officer, General Services Administration.

Therefore, GSA amends 48 CFR part 522 as set forth below:

PART 522—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

1. The authority citation for 48 CFR part 522 is revised to read as follows:

Authority: 40 U.S.C. 121(c).

2. Revise section 522.001 to read as follows:

522.001

Definition.

Agency labor advisor, as used in this part, means the Director of the Contract Policy Division (VPC) within the Office of the Chief Acquisition Officer (OCAO).

3. Revise section 522.101-1 to read as follows:

522.101-1

General.

The Office of General Counsel (OGC) and the agency labor advisor shall—

(a) Serve as the GSA points of contact on all contractor labor relations matters;

(b) Initiate contact on contractor labor relations matters with national offices of labor organizations, Government departments, agencies or other governmental organizations. Contracting offices shall notify OGC and the agency labor advisor when they are contacted by such external organizations;

(c) Serve as a clearinghouse for information on labor laws applicable to Government acquisitions; and

(d) Respond to questions involving FAR Part 22, Application of Labor Laws to Government Acquisitions, or other contractor labor relations matters concerning GSA acquisition programs. OGC determines the agency's legal position.

4. Revise section 522.103-5 to read as follows:

522.103-5

Contract clauses.

Insert FAR 52.222-1, Notice to the Government of Labor Disputes, in solicitations and contracts for DX rated orders under the Defense Priorities and Allocations System (DPAS). Information on the DPAS can be found at FAR Subpart 11.6, Priorities and Allocations.

5. Revise section 522.406-6 to read as follows:

522.406-6

Payrolls and statements.

Weekly payrolls and statements of compliance with respect to payment of wages are not required from a prime contractor or a subcontractor that personally performs work.

522.803

[Amended]

6. Amend section 522.803 by removing “Submit” and adding “Contracting officers should submit” in its place.

7. Amend section 522.804-1 as follows—

a. Remove from paragraph (a) the word “who” and add “that” in its place;

b. Remove from the end of paragraph (a)(1) the period and add “; or” in its place; and

c. Revise paragraph (b) to read as follows:

522.804-1

Nonconstruction.

* * * * *

(b) The contractors, subcontractors, and financial institutions described in 522.804-1(a) must develop a written affirmative action compliance program for each of its establishments regardless of the contract or holding value, in accordance with 41 CFR 60-1.40.

8. Add section 522.804-2 to read as follows:

522.804-2

Construction.

Goals for the employment of minorities and women in the construction industry are established by the Director, Office of Federal Contract Compliance Programs (OFCCP), Department of Labor. The current goal for the utilization of women is 6.9%, regardless of the location of the Federal contract. This goal was extended indefinitely by the Department of Labor in 1980. The current goals for minority participation vary by location and are listed in Appendix E of DOL's “Technical Assistance Guide for Federal Construction Contractors.” This guide can be accessed at http://www.dol.gov/​esa/​ofccp/​TAguides/​ctaguide.htm.

9. Amend section 522.805 as follows—

a. Removing from paragraph (a) the word “include” and adding “contracting officers shall include” in its place; and

b. Revising paragraphs (b) and (c) to read as follows:

522.805

Procedures.

* * * * *

(b) Contracting officers shall submit preaward clearance requests directly to the appropriate OFCCP regional office. A list of these offices can be found at http://www.dol.gov/​esa/​contacts/​ofccp/​ofcpkeyp.htm.

(c) The EEO poster required by FAR 22.805(b) can be found at: http://www.dol.gov/​esa/​regs/​compliance/​posters/​pdf/​eeopost.pdf. In addition to providing this poster to each non-exempt contractor, the contracting officer shall advise contractors to complete the Employer Information Report (EEO-1) at http://www.eeoc.gov/​eeo1survey/​index.html.