Nondisplacement of Qualified Workers Under Service Contracts

[Federal Register Volume 86, Number 223 (Tuesday, November 23, 2021)]

[Presidential Documents]

[Pages 66397-66401]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2021-25715]

Presidential Documents

Federal Register / Vol. 86 , No. 223 / Tuesday, November 23, 2021 /

Presidential Documents

___________________________________________________________________

Title 3--

The President

[[Page 66397]]

Executive Order 14055 of November 18, 2021

Nondisplacement of Qualified Workers Under

Service Contracts

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including the Federal Property and

Administrative Services Act, 40 U.S.C. 101 et seq., and

in order to promote economy and efficiency in

procurement, it is hereby ordered as follows:

Section 1. Policy. When a service contract expires, and

a follow-on contract is awarded for the same or similar

services, the Federal Government's procurement

interests in economy and efficiency are best served

when the successor contractor or subcontractor hires

the predecessor's employees, thus avoiding displacement

of these employees. Using a carryover work force

reduces disruption in the delivery of services during

the period of transition between contractors, maintains

physical and information security, and provides the

Federal Government with the benefits of an experienced

and well-trained work force that is familiar with the

Federal Government's personnel, facilities, and

requirements

y of services during

the period of transition between contractors, maintains

physical and information security, and provides the

Federal Government with the benefits of an experienced

and well-trained work force that is familiar with the

Federal Government's personnel, facilities, and

requirements. These same benefits are also often

realized when a successor contractor or subcontractor

performs the same or similar contract work at the same

location where the predecessor contract was performed.

Sec. 2. Definitions.

(a) ``Service contract'' or ``contract'' means any

contract, contract-like instrument, or subcontract for

services entered into by the Federal Government or its

contractors that is covered by the Service Contract Act

of 1965, as amended, 41 U.S.C. 6701 et seq., and its

implementing regulations.

(b) ``Employee'' means a service employee as

defined in the Service Contract Act of 1965, as

amended, 41 U.S.C. 6701(3).

(c) ``Agency'' means an executive department or

agency, including an independent establishment subject

to the Federal Property and Administrative Services

Act, 40 U.S.C. 102(4)(A).

Sec. 3. Nondisplacement of Qualified Workers. (a) Each

agency shall, to the extent permitted by law, ensure

that service contracts and subcontracts that succeed a

contract for performance of the same or similar work,

and solicitations for such contracts and subcontracts,

include the following clause:

Sec. 3. Nondisplacement of Qualified Workers. (a) Each

agency shall, to the extent permitted by law, ensure

that service contracts and subcontracts that succeed a

contract for performance of the same or similar work,

and solicitations for such contracts and subcontracts,

include the following clause:

``Nondisplacement of Qualified Workers: (a) The

contractor and its subcontractors shall, except as

otherwise provided herein, in good faith offer service

employees (as defined in the Service Contract Act of

1965, as amended, 41 U.S.C. 6701(3)) employed under the

predecessor contract and its subcontracts whose

employment would be terminated as a result of the award

of this contract or the expiration of the contract

under which the employees were hired, a right of first

refusal of employment under this contract in positions

for which those employees are qualified. The contractor

and its subcontractors shall determine the number of

employees necessary for efficient performance of this

contract and may elect to employ more or fewer

employees than the predecessor contractor employed in

connection with performance of the work solely on the

basis of that determination. Except as provided in

paragraph (b), there shall be no employment opening

under this contract or subcontract, and the contractor

and any subcontractors shall not offer employment under

this contract to any person prior to having complied

fully with the obligations described in this clause

is of that determination. Except as provided in

paragraph (b), there shall be no employment opening

under this contract or subcontract, and the contractor

and any subcontractors shall not offer employment under

this contract to any person prior to having complied

fully with the obligations described in this clause.

The contractor and its subcontractors shall make an

express offer of employment to each

[[Page 66398]]

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

business days.

``(b) Notwithstanding the obligation under

paragraph (a) above, the contractor and any

subcontractors (1) are 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 Service Contract Act of 1965, as

amended, 41 U.S.C. 6701(3), and (2) are not required to

offer a right of first refusal to any employee(s) of

the predecessor contractor for whom the contractor or

any of its subcontractors reasonably believes, based on

reliable evidence of the particular employees' past

performance, that there would be just cause to

discharge the employee(s) if employed by the contractor

or any subcontractors

loyee(s) of

the predecessor contractor for whom the contractor or

any of its subcontractors reasonably believes, based on

reliable evidence of the particular employees' past

performance, that there would be just cause to

discharge the employee(s) if employed by the contractor

or any subcontractors.

``(c) The contractor shall, not less than 10

business days before the earlier of the completion of

this contract or of its work on this contract, furnish

the Contracting Officer a certified list of the names

of all service employees working under this contract

and its subcontracts during the last month of contract

performance. The list shall also contain anniversary

dates of employment of each service employee under this

contract and its predecessor contracts either with the

current or predecessor contractors or their

subcontractors. The Contracting Officer shall provide

the list to the successor contractor, and the list

shall be provided on request to employees or their

representatives, consistent with the Privacy Act, 5

U.S.C. 552a, and other applicable law.

``(d) If it is determined, pursuant to regulations

issued by the Secretary of Labor (Secretary), that the

contractor or its subcontractors are not in compliance

with the requirements of this clause or any regulation

or order of the Secretary, the Secretary may impose

appropriate sanctions against the contractor or its

subcontractors, as provided in Executive Order (No.)

____, the regulations implementing that order, and

relevant orders of the Secretary, or

with the requirements of this clause or any regulation

or order of the Secretary, the Secretary may impose

appropriate sanctions against the contractor or its

subcontractors, as provided in Executive Order (No.)

____, the regulations implementing that order, and

relevant orders of the Secretary, or as otherwise

provided by law.

``(e) In every subcontract entered into in order to

perform services under this contract, the contractor

will include provisions that ensure that each

subcontractor will honor the requirements of paragraphs

(a) and (b) with respect to the employees of a

predecessor subcontractor or subcontractors working

under this contract, as well as of a predecessor

contractor and its subcontractors. The subcontract

shall also include provisions to ensure that the

subcontractor will provide the contractor with the

information about the employees of the subcontractor

needed by the contractor to comply with paragraph (c)

of this clause. The contractor shall take such action

with respect to any such subcontract as may be directed

by the Secretary as a means of enforcing such

provisions, including the imposition of sanctions for

noncompliance: provided, however, that if the

contractor, as a result of such direction, becomes

involved in litigation with a subcontractor, or is

threatened with such involvement, the contractor may

request that the United States enter into such

litigation to protect the interests of the United

States.''

ance: provided, however, that if the

contractor, as a result of such direction, becomes

involved in litigation with a subcontractor, or is

threatened with such involvement, the contractor may

request that the United States enter into such

litigation to protect the interests of the United

States.''

(b) Nothing in this order shall be construed to

require or recommend that agencies, contractors, or

subcontractors pay the relocation costs of employees

who exercise their right to work for a successor

contractor or subcontractor pursuant to this order.

Sec. 4. Location Continuity. (a) When an agency

prepares a solicitation for a service contract that

succeeds a contract for performance of the same or

similar work, the agency shall consider whether

performance of the work in the same locality or

localities in which the contract is currently being

performed is reasonably necessary to ensure economical

and efficient provision of services.

[[Page 66399]]

(b) If an agency determines that performance of the

contract in the same locality or localities is

reasonably necessary to ensure economical and efficient

provision of services, then the agency shall, to the

extent consistent with law, include a requirement or

preference in the solicitation for the successor

contract that it be performed in the same locality or

localities.

Sec. 5. Exclusions. This order shall not apply to:

(a) contracts under the simplified acquisition

threshold as defined in 41 U.S.C. 134; or

tent with law, include a requirement or

preference in the solicitation for the successor

contract that it be performed in the same locality or

localities.

Sec. 5. Exclusions. This order shall not apply to:

(a) contracts under the simplified acquisition

threshold as defined in 41 U.S.C. 134; or

(b) employees who were hired to work under a

Federal service contract and one or more nonfederal

service contracts as part of a single job, provided

that the employees were not deployed in a manner that

was designed to avoid the purposes of this order.

Sec. 6. Exceptions Authorized by Agencies. (a) A senior

official within an agency may grant an exception from

the requirements of section 3 of this order for a

particular contract by, no later than the solicitation

date, providing a specific written explanation of why

at least one of the following circumstances exists with

respect to that contract:

(i) Adhering to the requirements of section 3 of this order would not

advance the Federal Government's interests in achieving economy and

efficiency in Federal procurement;

(ii) Based on a market analysis, adhering to the requirements of section 3

of this order would:

(A) substantially reduce the number of potential bidders so as to

frustrate full and open competition; and

(B) not be reasonably tailored to the agency's needs for the contract; or

(iii) Adhering to the requirements of section 3 of this order would

otherwise be inconsistent with statutes, regulations, Executive Orders, or

Presidential Memoranda.

rements of section 3

of this order would:

(A) substantially reduce the number of potential bidders so as to

frustrate full and open competition; and

(B) not be reasonably tailored to the agency's needs for the contract; or

(iii) Adhering to the requirements of section 3 of this order would

otherwise be inconsistent with statutes, regulations, Executive Orders, or

Presidential Memoranda.

(b) To the extent permitted by law and consistent

with national security and executive branch

confidentiality interests, each agency shall publish,

on a centralized public website, descriptions of the

exceptions it has granted under this section, and

ensure that the contractor notifies affected workers

and their collective bargaining representatives, if

any, in writing of the agency's determination to grant

an exception.

(c) On a quarterly basis, each agency shall report

to the Office of Management and Budget descriptions of

the exceptions granted under this section.

Sec. 7. Regulations and Implementation. (a) The

Secretary of Labor (Secretary) shall, to the extent

consistent with law, issue final regulations within 180

days of the date of this order to implement the

requirements of this order, other than those specified

in sections 6(b) and (c) of this order.

Sec. 7. Regulations and Implementation. (a) The

Secretary of Labor (Secretary) shall, to the extent

consistent with law, issue final regulations within 180

days of the date of this order to implement the

requirements of this order, other than those specified

in sections 6(b) and (c) of this order.

(b) Within 60 days of the Secretary issuing final

regulations, the Federal Acquisition Regulatory Council

(FAR Council), to the extent consistent with law, shall

amend the Federal Acquisition Regulation to provide for

inclusion in Federal procurement solicitations and

contracts subject to this order the clause described in

section 3 of this order.

(c) The Director of the Office of Management and

Budget shall, to the extent consistent with law, issue

guidance to implement section 6(c) of this order.

Sec. 8. Enforcement. (a) The Secretary shall have the

authority to investigate potential violations of, and

obtain compliance with, this 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 may also provide that, if a contractor or

subcontractor 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 or subcontractor, and its responsible

officers, and any firm in which the contractor

[[Page 66400]]

also provide that, if a contractor or

subcontractor 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 or subcontractor, and its responsible

officers, and any firm in which the contractor

[[Page 66400]]

or subcontractor has a substantial interest, may be

ineligible to be awarded any contract of the United

States for a period of up to 3 years. Neither an order

for debarment of any contractor or subcontractor from

further Federal Government contracts under this section

nor the inclusion of a contractor or subcontractor on a

published list of noncomplying contractors shall be

carried out without affording the contractor or

subcontractor an opportunity to present information and

argument in opposition to the proposed debarment or

inclusion on the list.

(b) This order creates no rights under the Contract

Disputes Act, 41 U.S.C. 7101 et seq., and disputes

regarding the requirements of the contract clause

prescribed by section 3 of this order, to the extent

permitted by law, shall be disposed of only as provided

by the Secretary in regulations issued under this

order.

Sec. 9. Revocation. Executive Order 13897 of October

31, 2019 (Improving Federal Contractor Operations by

Revoking Executive Order 13495), is revoked. Executive

Order 13495 of January 30, 2009 (Nondisplacement of

Qualified Workers Under Service Contracts), remains

revoked.

order.

Sec. 9. Revocation. Executive Order 13897 of October

31, 2019 (Improving Federal Contractor Operations by

Revoking Executive Order 13495), is revoked. Executive

Order 13495 of January 30, 2009 (Nondisplacement of

Qualified Workers Under Service Contracts), remains

revoked.

Sec. 10. Severability. If any provision of this order,

or the application of any provision of this order to

any person or circumstance, is held to be invalid, the

remainder of this order and its application to any

other person or circumstance shall not be affected

thereby.

Sec. 11. Effective Date. This order shall become

effective immediately and shall apply to solicitations

issued on or after the effective date of the final

regulations issued by the FAR Council under section 7

of this order. For solicitations issued between the

date of this order and the date of the action taken by

the FAR Council under section 7 of this order, or

solicitations that have already been issued and are

outstanding as of the date of this order, agencies are

strongly encouraged, to the extent permitted by law, to

include in the relevant solicitation the contract

clause described in section 3 of this order.

Sec. 12. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

ection 3 of this order.

Sec. 12. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

[[Page 66401]]

(c) This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or

entities, its officers, employees, or agents, or any

other person.

(Presidential Sig.)

THE WHITE HOUSE,

November 18, 2021.

[FR Doc. 2021-25715

Filed 11-22-21; 8:45 am]

Billing code 3395-F2-P