[Federal Register Volume 59, Number 204 (Monday, October 24, 1994)]
[Presidential Documents]
[Pages 53559-53561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26516]
[[Page Unknown]]
[Federal Register: October 24, 1994]
Presidential Documents
Executive Order 12933 of October 20, 1994
Nondisplacement of Qualified Workers Under
Certain
Contracts
When a service contract for the maintenance of a public
building expires and a follow-on contract is awarded
for the same service, the successor contractor
typically hires the majority of the predecessor's
employees. On occasion, however, a follow-on contractor
will hire a new work force, and the predecessor's
employees are displaced.
As a buyer and participant in the marketplace, the
Government is concerned about hardships to individuals
that may result from the operation of our procurement
system.
Furthermore, the Government's procurement interests in
economy and efficiency benefit from the fact that a
carryover work force will minimize disruption to the
delivery of services during any period of transition
and provide the Government the benefits of an
experienced and trained work force rather than one that
may not be familiar with the Government facility.
Therefore, by the authority vested in me as President
by the Constitution and the laws of the United States
of America, including 40 U.S.C. 486(a), and in order to
promote economy and efficiency, it is hereby ordered as
follows:
Section 1. Statement of Policy. It is the policy of the
Federal Government that solicitations and building
service contracts for public buildings shall include a
clause that requires the contractor under a contract
that succeeds a contract for performance of similar
services at the same public building to offer those
employees (other than managerial or supervisory
employees) under the predecessor contract whose
employment will be terminated as a result of the award
of the successor contract, a right of first refusal to
employment under the contract in positions for which
they are qualified. There shall be no employment
openings under the contract until such right of first
refusal has been provided. Nothing in this order shall
be construed to permit a contractor to fail to comply
with any provision of any other Executive order or laws
of the United States.
Sec. 2. Definitions. (a) ``Public building'' means any
Government-owned building, whether single or multi-
tenant occupancy, its grounds, approaches, and
appurtenances, which is generally suitable for office
or storage space or both for the use of one or more
Federal agencies or mixed ownership corporations, and
shall include the following: (1) Federal office
buildings; (2) customhouses; (3) courthouses; (4)
border inspection facilities; (5) warehouses; (6)
records centers; (7) appraiser stores; and (8)
relocation facilities and similar Federal facilities;
but shall not include any such buildings: (A) on the
public domain (including that reserved for national
forests and other purposes); (B) on properties of the
United States in foreign countries; (C) on Native
American and Native Eskimo properties held in trust by
the United States; (D) on lands used in connection with
Federal programs for agricultural, recreational, and
conservation purposes, including research in connection
therewith; (E) on or used in connection with river,
harbor, flood control, reclamation, or power projects;
or for chemical manufacturing or development projects;
or for nuclear production, research, or development
projects; (F) on or used in connection with housing and
residential projects; (G) on properties of the United
States Postal Service; (H) on military installations
(including any fort, camp, post, naval training
station, airfield, proving ground, military supply
depot, military school, or any similar facility of the
Department of Defense); (I) on installations of the
National Aeronautic and Space Administration, except
regular office buildings; and (J) on Department of
Veterans Affairs installations used for hospital or
domiciliary purposes.
(b) ``Building services contract'' means a contract for
recurring services related to the maintenance of a
public building, e.g., janitorial, window washing, food
service, laundry, protective services, lawn and grounds
care, and inspection, maintenance, and repair of fixed
equipment such as elevators, air-conditioning, and
heating systems.
Sec. 3. Exclusions. This order shall not apply to (a)
contracts under the simplified acquisition threshold;
(b) contracts awarded pursuant to the Javits-
Wagner-O'Day Act, 41 U.S.C. 46-48a; and any future
enacted law creating an employment preference for some
group of workers under building services contracts;
(c) guard, elevator operator, messenger, or
custodial services provided to the Government under
contracts with sheltered workshops employing the
severely handicapped as outlined in the Edgar
Amendment, section 505 of the Treasury, Postal Services
and General Government Appropriations Act, 1995, Public
Law 103-329;
(d) agreements for vending facilities entered into
under the preference provisions of the Randolph-
Sheppard Act, 20 U.S.C. 107; or
(e) services where the contractor's employees
perform work at the public building and at other
locations under contracts not subject to this order
(e.g., pest control or trash removal where the
contractor's employees visit the site periodically and
where the employees under the contract respond to
service calls), provided that employees shall not be
deployed in a manner that is designed to avoid the
purposes of this order.
Sec. 4. Contract Clause. The following contract clause
shall be included in solicitations and contracts for
maintenance of public buildings that succeed contracts
for performance of similar work at the same public
building:
``NONDISPLACEMENT OF QUALIFIED WORKERS
(a) Consistent with the efficient performance of
this contract, the contractor shall, except as
otherwise provided herein, in good faith offer those
employees (other than managerial and supervisory
employees) 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 to employment under the contract in positions
for which employees are qualified. The contractor 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), there shall be no
employment opening under the contract, and the
contractor shall not offer employment under the
contract, to any person prior to having complied fully
with this obligation. The contractor shall make an
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) Notwithstanding the contractor's obligation
under paragraph (a) above, the contractor (1) may
employ on the contract any employee who has worked for
the contractor for at least 3 months immediately
preceding the commencement of this contract and who
would otherwise face lay-off or discharge, and (2) is
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 McNamara-
O'Hara Service Contract Act, 41 U.S.C. 357(b), and (3)
is not required to offer a right of first refusal to
any employee(s) of the predecessor contractor whom the
contractor reasonably believes, based on the particular
employee's past performance, has failed to perform
suitably on the job.
(c) In accordance with Federal Acquisition
Regulation 52.222-41(n), the contractor shall, not less
than 60 days before completion of this contract,
furnish the Contracting Officer a certified list of the
names of all service employees working at the Federal
facility during the last month of contract performance.
The list shall also contain anniversary dates of
employment on the contract either with the current or
predecessor contractors of each service employee. The
Contracting Officer will provide the list to the
successor contractor, and the list shall be provided on
request to employees or their representatives.
(d) If it is determined, pursuant to regulations
issued by the Secretary of Labor, that the contractor
is 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, as provided in
Executive Order No. 12933, the regulations, and
relevant orders of the Secretary of Labor, or as
otherwise provided by law.''
Sec. 5. Enforcement. The Secretary of Labor is
responsible for investigating and obtaining compliance
with this Executive order. In such proceedings the
Secretary shall have the authority to issue final
orders prescribing appropriate sanctions and remedies,
including, but not limited to, orders requiring
employment and payment of wages lost. The Secretary
also may provide that where a contractor has failed to
comply with any order of the Secretary or has committed
willful violations of this order or the regulations
issued pursuant thereto, the contractor and its
responsible officers, and any firm in which the
contractor has a substantial interest, shall be
ineligible to be awarded any contract or subcontract of
the United States for a period of up to 3 years. This
Executive order creates no rights under the Contract
Disputes Act, and disputes regarding the requirement of
the contract clause shall be disposed of only as
provided by the Secretary of Labor in regulations
issued under this Executive order. To the extent
practicable, such regulations shall favor the
resolution of disputes by efficient and informal
alternative dispute resolution methods. The Secretary
of Labor shall, in consultation with the Federal
Acquisition Regulatory Council, issue regulations,
within 180 days of the date of this order, to implement
the requirements of this Executive order. The Federal
Acquisition Regulatory Council shall issue, within 180
days of the date of this order, regulations in the
Federal Acquisition Regulation to provide for inclusion
of the contract clause in Federal solicitations and
contracts subject to this Executive order.
Sec. 6. Judicial Review. Nothing in this order is
intended to provide a constitutional or statutory
interpretation of any kind and it is not intended, and
should not be construed, to create any right or
benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its
officers, or its employees. This order is not intended,
however, to preclude judicial review of final decisions
by the Secretary of Labor in accordance with the
Administrative Procedure Act, 5 U.S.C. 701 et seq.
(Presidential Sig.)>
THE WHITE HOUSE,
October 20, 1994.
[FR Doc. 94-26516
Filed 10-12-94; 12:13 pm]
Billing code 3195-01-P
