Nondisplacement of Qualified Workers Under Certain Contracts

[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