[Weekly Compilation of Presidential Documents Volume 30, Number 42 (Monday, October 24, 1994)]
[Pages 2092-2094]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12933--Nondisplacement of Qualified Workers Under 
Certain Contracts

October 20, 1994

    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 residen- 

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tial 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

[[Page 2094]]

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 employs. 
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.
                                            William J. Clinton
The White House,
October 20, 1994.

[Filed with the Office of the Federal Register, 12:13 p.m., October 21, 
1994]

Note: This Executive order was published in the Federal Register on 
October 24.