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As many of you already know, on Nov. 18, 2021, President Biden signed Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts, 86 FR 66397. It requires contractors awarded successor contracts to existing service contracts, and their subcontractors, to offer the predecessor contractor's and subcontractor's employees right of first refusal to jobs under the new contract, with certain exceptions.

What you may not know is the history of the "nondisplacement" policy. Five presidents have been involved.

President Clinton

The policy was first set by President Clinton in Executive Order 12933, Nondisplacement of Qualified Workers under Certain Contracts, Oct. 20, 1994, 59 FR 53559.

The EO was implemented by the DOL and then by the FAR Council in Federal Acquisition Circular (FAC) 97-01 (an interim rule), 62 FR 44823, Aug. 22, 1997; FAC 97-11 (final rule), 64 FR 10545, March 4, 1999; and FAC 97-15 (technical amendment), 64 FR 72450, Dec. 27, 1999.

The three FACs created FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Certain Contracts, and FAR clause 52.222-50, Nondisplacement of Qualified Workers, adding about five and one-half pages to the FAR. The Clinton policy applied only to contracts for public building maintenance services.

President Bush II

On Feb. 17, 2001, within one month of taking office, President Bush revoked the Clinton nondisplacement policy. Executive Order 13204, Revocation of Executive Order on Nondisplacement of Qualified Workers Under Certain Contracts, 66 FR 11228.

DOL deleted its regulations, and FAC 97-26 (interim rule), 66 FR 27406, May 6, 2001, finalized by FAC 2001-04, 67 FR 6116, Feb. 8, 2002, deleted FAR Subpart 22.12 and FAC clause 52.222-50. COs were told not to enforce the clause in any contracts that included it.

President Obama

On Jan. 30, 2009, the tenth day of his first administration, President Obama issued Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, 74 FR 6103. However, he greatly expanded the policy's coverage to almost all service contracts value at more than the simplified acquisition threshold.

After DOL wrote new regulations the FAR councils issued FAC 2005-64, 77 FR 75766, Dec. 21, 2012, resurrecting FAR Subpart 22.12 and the implementing contract clause. The coverage was more extensive than it had been for the Clinton policy.

President Trump

It took him a while to get to it, but on Oct. 31, 2019, President Trump revoked the Obama policy by issuing Executive Order 13897, wittily (or wickedly) entitled, Improving Federal Contract Operations by Revoking Executive Order 13495, (go ahead, you have to chuckle), 84 FR 59709.

DOL deleted its regulations, and FAC 2020-06, 85 FR 27087, May 6, 2020, deleted FAR Subpart 22.12 and its implementing clause.

President Biden

But Subpart 22.12 and the clause will stay in the grave only until the Biden order is implemented. Biden gave the Department of Labor (DOL) 180 days to publish final implementing regulations, and gave the FAR Council 60 days thereafter to implement them in the FAR. How long the policy will live seems likely to depend on the outcome of the 2024 presidential election.

And so it goes.

You have to laugh. Our government is but mad, north-northwest.

Jim Nagle, author of The History of Government Contracting, 2d ed., and co-author of Administration of Government Contracts, 5th ed., has written an article about this for the next issue of The Nash & Cibinic Report.

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Project Labor Agreements were another example of back and forth policy, although I think that Trump left it alone. 

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15 minutes ago, Vern Edwards said:

So, tell us the history.

Will do so when time to search for the various FAR changes permits. PLA’s only pertain to construction. Starting my daily duties right now. 

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1 hour ago, joel hoffman said:

Project Labor Agreements were another example of back and forth policy, although I think that Trump left it alone. 

Project labor agreements (PLAs) are discussed in FAR 22.5.

Here's a link to a 2012 Congressional Research Service report, which provides some of the history of project labor agreements, beginning with President Obama's executive order.

https://www.everycrsreport.com/files/20120628_R41310_731846eb1c5bc373a7ea40ebd566f72ded8a8771.pdf

Before the Obama EO, President Bush wrote an EO about them that ended up in court. Here's the 2002 decision by the DC Circuit Court of Appeals.

https://law.resource.org/pub/us/case/reporter/F3/295/295.F3d.28.01-5436.html

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It is basically a union vs. non-union construction industry political issue.

Project Labor Agreements are very pro-union. 

Background -what they are and history from Bush 1 through Clinton:

https://thetruthaboutplas.com/wp-content/uploads/2012/12/Congressional-Research-Service-Report-Project-Labor-Agreements-in-Federal-Construction-Contracts-AN-Overview-and-Analysis-of-Issues-08241999.pdf

More detail about the ping pong policies from Bush 1 through Bush 2 and early Obama actions in 2009:

https://thetruthaboutplas.com/2009/06/25/pla-archives-white-house-executive-orders-concerning-project-labor-agreements/amp/

Here is a good overall view of the recent history of PLA’s in Federal Construction, why much of the construction industry, including the ABC Associated Builders and Constructors (Open shop) and even the AGC Association of General Contractors (mostly union but some have both union and non-union Divisions) oppose the government mandating the use of PLAs on Federal construction projects. 

https://en.m.wikipedia.org/wiki/Project_Labor_Agreement

The Biden administration is considering bolstering the use of PLAs beyond the current policy per campaign promises made by Candidate Biden in 2020.

Source ENR: (subscribers only)

https://www.enr.com/articles/50888-will-project-labor-agreements-grow-in-biden-administration

 

 

 

 

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I had noticed several years ago during the Trump Administration that he had not revoked Obama’s Executive Order. 

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  • 5 months later...

Any updates on whether Secretary of Labor has put in place the required Final Regulations implementing the EO.  I believe the 180 days lapsed on May 18, 2022.

That will hold up the prescribed FAR amendments .....

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  • 2 weeks later...

Category management is another example of government leadership missing the boat.  President Obama initiated it.  The basic concept is the government consolidates certain commodities into established categories, establishes sources of supply for each, and the government saves money.  The private sector had great success so why shouldn’t the government?  Answer - someone at the top of a company mandates that all employees use the same supplies/services.  Problem - every agency believes they are unique and their needs can’t be met by another agency.  Results - lots of claimed savings which I doubt could be substantiated.

Move on to President Trump.  For the most part his administration left things alone.  But he wanted category management to focus more on software and data centers (shared services).  Again it slowly faded into the sunset because agencies don’t want to trust their IT services to be provided by another agency because they are unique. The private sector just mandates and it’s done.

Finally we are at President Biden.  He says category management is good but wants agencies to “review and adjust category management stewardship practices to boast contracting opportunities for small disadvantaged businesses (SDB) and other socioeconomic small business.”  Commendable goals but how will SDBs be able to support category management requirements on a governmentwide basis?  Maybe instead call it something else like consolidating agency or program needs but not category management through set-asides?  But that’s not category management as originally envisioned.  Again a failed attempt to leverage private sector practices to the government.

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57 minutes ago, formerfed said:

Commendable goals but how will SDBs be able to support category management requirements on a governmentwide basis?

Easy. Change the definition or qualifications for SDB.

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