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Robert Tibbitts

FAR 52.222-60 (Executive Order 13673)(OCT 2016)

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I'm reviewing FAR clauses in a new solicitation and came across FAR 52.222-60 (Executive Order 13673)(OCT 2016). This is the first time I've come across this clause in a solicitation. In my review, I came across an article that stated President Trump revoked this Executive Order in March 2017. The article stated Trump's Order directs the Department of Labor and other executive agencies to "consider promptly rescinding any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing the revoked Executive Order." Under clause 52.222-60, we would need to change our wage statements (bi-weekly) to break out the hours worked and overtime hours to correspond to the period for which the overtime is calculated and paid (typically, weekly). Has anyone else run across this clause in new solicitations? How are you addressing it? Is it still applicable given Trump's revocation? Any comments would be appreciated. Thank you.

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House Joint Resolution 37 (Pub. L. 115-11), signed on March 27, 2017, disapproves the final rule implementing Executive Order (E.O) E.O. 13673, Fair Pay and Safe Workplaces, as amended by E.O. 13683 and E.O. 13738 (FAR rule 2014-025, 81 Fed. Reg. 58562, August 25, 2016), and states that the rule shall have no force or effect.  On March 27, 2017, the President signed E.O. 13782, which revoked the E.O.s underlying this rule. Many sections of E.O. 13673 and FAR rule 2014-025 (e.g., FAR 52.222-57, 52.222-58, 52.222-59, and 52.222-61) had already been enjoined by the United States District Court for the Eastern District of Texas in October 2016.  However, the Court Order did not enjoin implementation of those sections of the FAR rule that addressed the paycheck transparency requirements contained in the E.O. (i.e., section 5 of E.O. 13673), including FAR 22.2005, 22.2007(d), and FAR clause 52.222-60.  The paycheck transparency requirements, which became effective for solicitations issued on or after January 1, 2017, are now by law null and void.

The FAR Council has initiated FAR Case 2017-015 to remove the Fair Pay and Safe Workplaces requirements from the FAR but the final rule has not yet been published in the Federal Register. 

Because FAR rule 2014-025 is now null and void, departments and agencies are taking steps to comply with House Joint Resolution 37 in anticipation of this removal by the FAR change. These steps include:

1.    Contracting officers are being advised to ensure that open solicitations and solicitations to be issued do not include any of the provisions or clauses at FAR 52.222-57, 52.222-58, 52.222-59, 52.222-60, or 52.222-61.

2.   Contracting officers are being advised if a solicitation has been issued with one or more of the provisions or clauses at FAR 52.222-57, 52.222-58, 52.222-59, 52.222-60, or 52.222-61, that they immediately amend the solicitation to remove such provisions or clauses.

3.    If an existing contract contains one or more of the clauses at 52.222-59, 52.222-60, or 52.222-61, in accordance with FAR 1.108(d), contracting officers are being advised to attempt to modify the contract to remove any of the aforementioned clauses.  By law, FAR rule 2014-025 shall be treated as if it had never taken effect.

I would suggest you check and see if an amendment to the solicitation has been issued to remove the questioned clause.  If not I would then contact the contracting officer that issued the solicitation and see if he or she is aware of these changes as well what action they plan on taking e.g. are they going to issue an amendment to the solicitation removing the questioned clause.

I hope this information helps.

Edited by policyguy
Typos fixed.

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I remember posting this from the Civilian Agency Acquisition Council (CAAC):

Class Deviation from the Federal Acquisition Regulation (FAR) to remove the Fair Pay and Safe Workplaces final rule (FAR Case 2014-025).

Quote

However, the Court Order did not enjoin implementation of those sections of, or the clause in, the FAR rule addressing the paycheck transparency requirements in the E.O. (i.e., section 5 of E.O. 13673), including FAR 22.2005, 22.2007(d), and clause 52.222-60. This coverage, which became effective for new solicitations issued on or after January 1, 2017, is now null and void.

I thought I posted a corresponding defense deviation but I could not find it.  Perhaps I am thinking of a DOE deviation to its regulation.

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On ‎11‎/‎4‎/‎2017 at 12:28 PM, bob7947 said:

After more than 7 months since the law was changed, this issue was dealt with on November 6, 2017, by FAC 2005-96.

It looks like it will be dealt with again.  Compare provision/clause dating in FAC 2005-96 with the month and year used by Acquisition.gov.

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