[Federal Register Volume 64, Number 42 (Thursday, March 4, 1999)]
[Rules and Regulations]
[Pages 10545-10546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5208]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAC 97-11; FAR Case 94-610; Item VI]
RIN 9000-AH62
Federal Acquisition Regulation; Executive Order 12933,
Nondisplacement of Qualified Workers Under Certain Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to implement Executive Order
12933, Nondisplacement of Qualified Workers under Certain Contracts,
signed by the President on October 20, 1994 (59 FR 53559, October 24,
1994). The Executive Order requires that workers on certain building
service contracts be given the right of first refusal for employment
with the successor contractor, if the workers would otherwise lose
their jobs as a result of the termination of the contract.
An interim rule for this FAR case was published in the Federal
Register at 62 FR 44823, August 22, 1997, as Item XII of Federal
Acquisition Circular 97-01. This final rule amends the definition of
``building service contract'' in FAR 22.1202, and provides guidance
regarding the quality of work performed on predecessor contracts and
disputes resolution in the clause at 52.222-50.
EFFECTIVE DATE: May 3, 1999.
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 Mr. Jack O'Neill, Procurement Analyst, at (202) 501-
3856. Please cite FAC 97-11, FAR case 94-610.
SUPPLEMENTARY INFORMATION:
A. Background
Executive Order 12933 was signed October 20, 1994, by President
Clinton and published in the Federal Register on October 24, 1994 (59
FR 53559). To obtain public input and assist in the
[[Page 10546]]
development of implementing regulations, the Department of Labor (DoL)
invited comment through a notice of proposed rulemaking in the Federal
Register on July 18, 1995 (60 FR 36756). The final DoL rule was
published in the Federal Register on May 22, 1997 (62 FR 28175). An
interim rule for this FAR case was published in the Federal Register at
62 FR 44823, August 22, 1997, as Item XII of Federal Acquisition
Circular 97-01. This final rule makes further changes to FAR part 22,
and the clause at 52.222-50, that are the result of resolution of
public comments received in response to publication of the interim rule
in the Federal Register.
The definition of ``building service contract'' at FAR 22.1202 is
amended by deleting concessions other than food services or laundry
services from the definition. The clause at FAR 52.222-50,
Nondisplacement of Qualified Workers, is amended by inserting a cross-
reference to performance standards in 29 CFR 9.8, and inserting the
concept of presumption of satisfactory performance by employees on
predecessor contracts.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and 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 certify 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 the rule and the
Executive order mandate a practice that is already followed in most
cases. This rule implements the requirements of the Executive order, as
implemented by the DoL in its final rule of May 22, 1997 (62 FR 28175).
The DoL certified that its final rule will not have a significant
economic impact on a substantial number of small entities. In those
cases where the practice was not followed before the Executive order,
the impact would be a result of the Executive order and the DoL
regulation; it would not be a result of the FAR implementation.
C. Paperwork Reduction Act
This final rule will not impose any additional paperwork burdens
beyond the information collection and recordkeeping requirements
required under sections 9.6(c), 9.9(b), and 9.11 of the Department of
Labor Regulations, 29 CFR part 9, and approved under DoL Office of
Management and Budget Control 1215-0190.
List of Subjects in 48 CFR Parts 22 and 52
Government procurement.
Dated: February 25, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 22 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 22 and 52 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 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1200 [Amended]
2. Section 22.1200 is amended by adding ``(E.O.)'' after ``Order''.
22.1201 [Amended]
3. Section 22.1201 is amended in the first sentence by removing
``Federal''; and in the last sentence by removing ``Executive Order''
and adding ``E.O.''.
22.1202 [Amended]
4. Section 22.1202 is amended--
A. In the third sentence of the definition ``Building service
contract'' by removing ``Executive Order'' and adding ``E.O.'';
B. At the end of paragraph (1) of the definition by adding ``and''
after the semicolon;
C. In paragraph (2) by removing ``; or'' and adding a period; and
by removing paragraph (3);
D. In paragraph (2) introductory text of the definition ``Public
building'' by removing the colon and adding ``--''.
22.1203-1 [Amended]
5. Section 22.1203-1 is amended in the first sentence of paragraph
(b)(1) by revising ``non-covered'' to read ``noncovered'', and by
revising ``non-service'' to read ``nonservice''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 52.222-50 is amended by revising the date of the clause;
by revising paragraph (c); and by revising the second sentence of
paragraph (j). The new text reads as follows:
52.222-50 Nondisplacement of Qualified Workers.
* * * * *
Nondisplacement of Qualified Workers (May 1999)
* * * * *
(c) Notwithstanding the Contractor's obligation under paragraph
(b) of this clause, 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 layoff or
discharge;
(2) Is not required to offer a right of first refusal to any
employee(s) of the predecessor contractor who are not service
employees; and
(3) Is not required to offer a right of first refusal to any
employee(s) of the predecessor contractor who the Contractor
reasonably believes, based on the particular employee's past
performance, has failed to perform suitably on the job (see 29 CFR
9.8).
(4) Must presume, unless demonstrated otherwise, that all
employees working on the predecessor contract in the last month of
performance performed suitable work on the contract. Offers of
employment are governed by the following:
(i) The offer shall state the time within which the employee
must accept such offer, but in no case shall the period for
acceptance be less than 10 days.
(ii) The offer may be made by separate written notice to each
employee, or orally at a meeting attended by a group of the
predecessor contractor's employees.
(iii) An offer need not be to a position similar to that which
the employee previously held, but the employee must be qualified for
the position.
(iv) An offer to a position providing lower pay or benefits than
the employee held with the predecessor contractor will be considered
bona fide if the Contractor shows valid business reasons.
(v) To ensure that an offer is effectively communicated, the
Contractor should take reasonable efforts to make the offer in a
language that each worker understands; for example, by having a
coworker or other person fluent in the worker's language at the
meeting to translate or otherwise assist an employee who is not
fluent in English.
* * * * *
(j) * * * Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR part 9. *
* *
[FR Doc. 99-5208 Filed 3-3-99; 8:45 am]
BILLING CODE 6820-EP-P
