[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