[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Presidential Documents]
[Pages 6103-6106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2484]
Presidential Documents
Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 /
Presidential Documents
[[Page 6103]]
Executive Order 13495 of January 30, 2009
Nondisplacement of Qualified Workers Under
Service Contracts
When a service contract expires, and a follow-on
contract is awarded for the same service, at the same
location, the successor contractor or its
subcontractors often hires the majority of the
predecessor's employees. On some occasions, however, a
successor contractor or its subcontractors hires a new
work force, thus displacing the predecessor's
employees.
The Federal Government's procurement interests in
economy and efficiency are served when the successor
contractor hires the predecessor's employees. A
carryover work force reduces disruption to the delivery
of services during the period of transition between
contractors and provides the Federal Government the
benefits of an experienced and trained work force that
is familiar with the Federal Government's personnel,
facilities, and requirements.
Therefore, 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 Federal
Government procurement, it is hereby ordered as
follows:
Section 1. Policy. It is the policy of the Federal
Government that service contracts and solicitations for
such contracts shall include a clause that requires the
contractor, and its subcontractors, under a contract
that succeeds a contract for performance of the same or
similar services at the same location, to offer those
employees (other than managerial and supervisory
employees) employed under the predecessor contract
whose employment will be terminated as a result of the
award of the successor contract, a right of first
refusal of 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 or
subcontractor to fail to comply with any provision of
any other Executive Order or law of the United States.
Sec. 2. Definitions.
(a) ``Service contract'' or ``contract'' means any
contract 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. 351 et seq., and its implementing
regulations.
(b) ``Employee'' means a service employee as
defined in the Service Contract Act of 1965, 41 U.S.C.
357(b).
Sec. 3. Exclusions. This order shall not apply to:
(a) contracts or subcontracts under the simplified
acquisition threshold as defined in 41 U.S.C. 403;
(b) contracts or subcontracts awarded pursuant to
the Javits-Wagner-O'Day Act, 41 U.S.C. 46-48c;
(c) guard, elevator operator, messenger, or
custodial services provided to the Federal Government
under contracts or subcontracts with sheltered
workshops employing the severely handicapped as
described in section 505 of the Treasury, Postal
Services and General Government Appropriations Act,
1995, Public Law 103-329;
[[Page 6104]]
(d) agreements for vending facilities entered into
pursuant to the preference regulations issued under the
Randolph-Sheppard Act, 20 U.S.C. 107; or
(e) 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. 4. Authority to Exempt Contracts. If the head of a
contracting department or agency finds that the
application of any of the requirements of this order
would not serve the purposes of this order or would
impair the ability of the Federal Government to procure
services on an economical and efficient basis, the head
of such department or agency may exempt its department
or agency from the requirements of any or all of the
provisions of this order with respect to a particular
contract, subcontract, or purchase order or any class
of contracts, subcontracts, or purchase orders.
Sec. 5. Contract Clause. The following contract clause
shall be included in solicitations for and service
contracts that succeed contracts for performance of the
same or similar work at the same location:
``NONDISPLACEMENT OF QUALIFIED WORKERS
``(a) Consistent with the efficient performance of
this contract, the contractor and its subcontractors
shall, except as otherwise provided herein, in good
faith offer those employees (other than managerial and
supervisory employees) employed 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 of employment under this
contract in positions for which 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 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 this contract, and the
contractor and any subcontractors shall not offer
employment under this contract, to any person prior to
having complied fully with this obligation. The
contractor and its subcontractors 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 obligation under
paragraph (a) above, the contractor and any
subcontractors (1) may employ under this contract any
employee who has worked for the contractor or
subcontractor for at least 3 months immediately
preceding the commencement of this contract and who
would otherwise face lay-off or discharge, (2) 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. 357(b), and
(3) are not required to offer a right of first refusal
to any employee(s) of the predecessor contractor whom
the contractor or any of its subcontractors 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 10 days before completion of 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 will provide the list to the successor
contractor, and the list shall be provided on request
to employees or their representatives.
[[Page 6105]]
``(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, appropriate sanctions may be
imposed and remedies invoked against the contractor or
its subcontractors, as provided in Executive Order
(No.) --------------, the regulations, 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) through (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 5(c),
above. The contractor will 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 non-
compliance: 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.''
Sec. 6. Enforcement. (a) The Secretary of Labor
(Secretary) is responsible for investigating and
obtaining 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 also may provide that where 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 or
subcontractor has a substantial interest, shall 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 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 for a hearing.
(b) This order creates no rights under the Contract
Disputes Act, and disputes regarding the requirement of
the contract clause prescribed by section 5 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. To the extent
practicable, such regulations shall favor the
resolution of disputes by efficient and informal
alternative dispute resolution methods. The Secretary
shall, in consultation with the Federal Acquisition
Regulatory Council, issue regulations, within 180 days
of the date of this order, to the extent permitted by
law, to implement the requirements of this order. The
Federal Acquisition Regulatory Council shall issue,
within 180 days of the date of this order, to the
extent permitted by law, regulations in the Federal
Acquisition Regulation to provide for inclusion of the
contract clause in Federal solicitations and contracts
subject to this order.
Sec. 7. Revocation. Executive Order 13204 of February
17, 2001, is revoked.
Sec. 8. Severability. If any provision of this order,
or the application of such provision or amendment to
any person or circumstance, is held to be invalid, the
remainder of this order and the application of the
provisions of such to any person or circumstances shall
not be affected thereby.
Sec. 9. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the
head thereof; or
[[Page 6106]]
(ii) 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.
(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. This order is not intended, however, to
preclude judicial review of final decisions by the
Secretary in accordance with the Administrative
Procedure Act, 5 U.S.C. 701 et seq.
Sec. 10. Effective Date. This order shall become
effective immediately and shall apply to solicitations
issued on or after the effective date for the action
taken by the Federal Acquisition Regulatory Council
under section 6(b) of this order.
(Presidential Sig.)
THE WHITE HOUSE,
January 30, 2009.
[FR Doc. E9-2484
Filed 2-3-09; 8:45 am]
Billing code 3195-W9-P