[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