[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30651]


[Federal Register: December 28, 1994]


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GENERAL SERVICES ADMINISTRATION
DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 22

[FAC 90-23; FAR Case 92-7; Item XVIII]
RIN 9000-AF75


Federal Acquisition Regulation; Collective Bargaining Agreement, 
Contingency Clauses

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 to amend 
the Federal Acquisition Regulation (FAR) to implement the direction 
contained in Department of Labor (DOL) Memorandum Nos. 159 and 166 
concerning contingencies in collective bargaining agreements subject to 
section 4(c) of the Service Contract Act and requests for substantial 
variance hearings. This rule also makes editorial changes to more 
accurately reflect the DOL regulations on the Service Contract Act. 
This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993.

EFFECTIVE DATE: February 27, 1995.

FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in 
reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-23, FAR case 92-7.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule incorporates guidance from two memorandums which 
the DOL's Wage and Hour Division has issued to all contracting agencies 
of the Federal Government and the District of Columbia concerning 
collective bargaining agreements (CBA's) subject to section 4(c) of the 
Service Contract Act. Memorandum No. 159 explains a DOL conclusion that 
certain contingencies in CBA's generally reflect a lack of arm's length 
negotiations. Memorandum No. 166 amplifies the DOL's regulatory 
requirements for substantial variance hearings. This final rule also 
includes changes to more accurately reflect the DOL's regulations on 
the Service Contract Act at 29 CFR Part 4.

B. Regulatory Flexibility Act

    This final rule does not constitute a significant FAR revision 
within the meaning of FAR 1.501 and Public Law 98-577, and publication 
for public comments is not required. Therefore, the Regulatory 
Flexibility Act does not apply. However, comments from small entities 
concerning the affected subpart will be considered in accordance with 5 
U.S.C. 610. Such comments must be submitted separately and cite 5 
U.S.C. 601, et seq. (FAC 90-23, FAR case 92-7), in correspondence.

C. Paperwork Reduction Act

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

List of Subjects in 48 CFR Part 22

    Government procurement.

    Dated: December 7, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.

    Therefore, 48 CFR part 22 is amended as set forth below:

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    1. The authority citation for 48 CFR part 22 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).

    2. and 3. Section 22.1008-3 is amended by revising paragraph (e) to 
read as follows:


22.1008-3  Section 4(c) successorship with incumbent contractor 
collective bargaining agreement.

* * * * *
    (e) Section 4(c) of the Act will not apply if the Secretary of 
Labor determines (1) after a hearing, that the wages and fringe 
benefits in the predecessor contractor's collective bargaining 
agreement are substantially at variance with those which prevail for 
services of a similar character in the locality, or (2) that the wages 
and fringe benefits in the predecessor contractor's collective 
bargaining agreement are not the result of arm's length negotiations 
(see 22.1013 and 22.1021). The Department of Labor (DOL) has concluded 
that contingent collective bargaining agreement provisions that attempt 
to limit a contractor's obligations by means such as requiring issuance 
of a wage determination by the DOL, requiring inclusion of the wage 
determination in the contract, or requiring the Government to 
adequately reimburse the contractor, generally reflect a lack of arm's 
length negotiations.
* * * * *
    3. Section 22.1021 is revised to read as follows:


22.1021  Requests for hearing.

    (a) A contracting agency or other interested party may request a 
hearing on an issue presented in 22.1013(a). To obtain a hearing for 
the contracting agency, the contracting officer shall submit a written 
request through appropriate channels (ordinarily the agency labor 
advisor) to: Administrator, Wage and Hour Division, Employment 
Standards Administration, U.S. Department of Labor, Washington, DC 
20210.
    (b) A request for a substantial variance hearing shall include 
sufficient data to show that the rates at issue vary substantially from 
those prevailing for similar services in the locality. The request 
shall also include--
    (1) The number of the wage determinations at issue;
    (2) The name of the contracting agency whose contract is involved;
    (3) A brief description of the services to be performed under the 
contract;
    (4) The status of the procurement and any estimated procurement 
dates, such as bid opening, contract award, and commencement date of 
the contract or its follow-up option period;
    (5) A statement of the applicant's case, setting forth in detail 
the reasons why the applicant believes that a substantial variance 
exists with respect to some or all of the wages and/or fringe benefits;
    (6) Names and addresses (to the extent known) of interested 
parties; and
    (7) Any other data required by the Administrator.
    (c) A request for an arm's length hearing shall include--
    (1) A statement of the applicant's case setting forth in detail the 
reasons why the applicant believes that the wages and fringe benefits 
contained in the collective bargaining agreement were not reached as a 
result of arm's length negotiations;
    (2) A statement regarding the status of the procurement and any 
estimated procurement dates, such as bid opening, contract award, and 
commencement date of the contract or its follow-up option period; and
    (3) Names and addresses (to the extent known) of interested 
parties.
    (d) Unless the Administrator determines that extraordinary 
circumstances exist, the Administrator will not consider requests for a 
hearing unless received as follows:
    (1) For sealed bid contracts, more than 10 days before the award of 
the contract; or
    (2) For negotiated contracts and for contracts with provisions 
exceeding the initial term by option, before the commencement date of 
the contract or the follow-up option period.

[FR Doc. 94-30651 Filed 12-27-94; 8:45 am]
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