As always, thank you in advance for any help.  WIFCON has proven to be very useful and I appreciate it.

I have a question related to Executive Order 14055 "Nondisplacement of Qualified Workers Under Service Contracts" which was authorized last month.  Basically, we're back to being required to hire incumbent contractors for follow-on task orders of same or similar services.  In my current situation, based on some unfortunate missed milestones which I will not delve into, there is quite possibly going to be a lapse in service between the end of our current services task order and the award of the follow-on.  My question is this...if there is a lapse in service (length of time unknown) are the current TO contractors still considered incumbent with right of first refusal?  I.e. What if a period of say two months went by before the new TO began...are they still incumbents? 

 

Thanks

 

54 minutes ago, JaxD8282 said:

Basically, we're back to being required to hire incumbent contractors for follow-on task orders of same or similar services. 

Emphasis added.

I presume that the "we" in your post is a government agency.

Do you mean required to hire incumbent contractor EMPLOYEES? I don't know of any executive order requiring that the government hire incumbent contractors.

2 hours ago, JaxD8282 said:

My question is this...if there is a lapse in service (length of time unknown) are the current TO contractors still considered incumbent with right of first refusal?  I.e. What if a period of say two months went by before the new TO began...are they still incumbents? 

Is there a clause in your contract that requires you to hire incumbent contractor employees?

3 hours ago, Vern Edwards said:

Emphasis added.

I presume that the "we" in your post is a government agency.

Do you mean required to hire incumbent contractor EMPLOYEES? I don't know of any executive order requiring that the government hire incumbent contractors.

Yes, I work for the DON.

You're correct that I meant hiring incumbent employees not the contractor company. 

Again, that was initially worded poorly on my part, sorry about that.

The successor awardee is required to offer the predecessor contractors right of first refusal.  If there is a gap in service and no bridge, would the aforementioned right of first refusal still be applicable?

Please see attached EO, thanks.

 

EO Nondisplacement of Workers.pdf

1 hour ago, Retreadfed said:

Is there a clause in your contract that requires you to hire incumbent contractor employees?

There are clauses to this effect, thanks.

@JaxD8282Read the executive order, Section 11:

Quote

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.

The FAR Council has not yet issued final regulations, so inclusion is optional. Has someone in authority in your organization decided to include the clause mentioned above in your solicitation?

11 hours ago, JaxD8282 said:

As always, thank you in advance for any help.  WIFCON has proven to be very useful and I appreciate it.

I have a question related to Executive Order 14055 "Nondisplacement of Qualified Workers Under Service Contracts" which was authorized last month.  Basically, we're back to being required to hire incumbent contractors for follow-on task orders of same or similar services.  In my current situation, based on some unfortunate missed milestones which I will not delve into, there is quite possibly going to be a lapse in service between the end of our current services task order and the award of the follow-on.  My question is this...if there is a lapse in service (length of time unknown) are the current TO contractors still considered incumbent with right of first refusal?  I.e. What if a period of say two months went by before the new TO began...are they still incumbents? 

 

Thanks

 

I question whether EO1455 has any relevance to your task order. It was issued on Nov 18 and was published on Nov 23, which was only a month ago. Vern quoted the effective date and conditions and indicated that the FAR Council hasn’t published final revisions to the FAR to implement any clause.

Did someone include the stated clause in the open task order solicitation before selection and award? Did the proposers have any opportunity to assess any effects of such a clause to their pricing or proposals before the closing date for submission? 

What “clauses to this effect” are in the awarded task order?

Or is the task order competition/task order proposal request still open? If still open are you posing a hypothetical “what if “ delay scenario?

Can you please clarify? Thanks.

10 hours ago, joel hoffman said:

I question whether EO1455 has any relevance to your task order. It was issued on Nov 18 and was published on Nov 23, which was only a month ago. Vern quoted the effective date and conditions and indicated that the FAR Council hasn’t published final revisions to the FAR to implement any clause.

Did someone include the stated clause in the open task order solicitation before selection and award? Did the proposers have any opportunity to assess any effects of such a clause to their pricing or proposals before the closing date for submission? 

What “clauses to this effect” are in the awarded task order?

Or is the task order competition/task order proposal request still open? If still open are you posing a hypothetical “what if “ delay scenario?

Can you please clarify? Thanks.

I agree with you that the EO has no relevancy until the pending clause is incorporated into the FAR by the FAR Council. 

The requirement in question is a follow-on which has not hit the street yet, but will soon.  So this is a "what if" scenario; however, only for the short term since the IFB will be issued in the next month (or so). 

17 hours ago, Vern Edwards said:

@JaxD8282Read the executive order, Section 11:

The FAR Council has not yet issued final regulations, so inclusion is optional. Has someone in authority in your organization decided to include the clause mentioned above in your solicitation?

Thank you for noting the Section 11 portion of the EO, I'd missed that.  No, I have not received instruction to include the clause.  For now, I believe I'll omit this until the FAR Council officially incorporates the clause.  

You've received good advice.  I'll just add one more thing for application of this and other E.O.s in the future - make sure you are using and interpreting the correct terminology.

You've asked whether contractors whose contract period of performance have expired are "still incumbents."  Incumbent means, "holding an indicated position, role, office, etc., currently."  This has led to your question.  Is a company, whose contract period of performance has expired, considered an incumbent, i.e., current, contract holder?

However, the word incumbent does not appear anywhere in the E.O.  Rather, the order states, "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." (Emphasis added.)  It then directs inclusion of a clause in solicitations, contracts and subcontracts for services "that succeed a contract for performance of the same or similar work."  In part, the clause requires the contractor to provide the contracting officer with a list of names of contractor employees working during the last month of contract performance.

So, there is no requirement that there be uninterrupted service, only that the contracting officer determine that the contract is a follow-on for same or similar services. Barring guidance from the FAR Council or agency regulations, I would expect such a determination to be made on a case by case basis within the discretion of the contracting officer, subject to a protest that the determination is unreasonable.  Also, keep in mind that unless the existing (or recently completed) contract has a clause requiring the contractor to provide a list of names, the government might not have a list of contractor employees to give to the successor contractor, and the existing contractor is under no obligation to provide the information.

 

This entire thing will be one huge mess.  My prediction. For example what happens when the new awardee already has the full staff to perform?  Or the agency recompeted the contract early because the incumbent is performing poorly?  Are they supposed to offer jobs to everyone or a select few?  How do they decide? The EO allows for past performance but how does that get down to individual employee performance? 

On 12/22/2021 at 10:15 AM, Lionel Hutz said:

unless the existing (or recently completed) contract has a clause requiring the contractor to provide a list of names, the government might not have a list of contractor employees to give to the successor contractor, and the existing contractor is under no obligation to provide the information.

This was a flaw in the similar requirement that Pres. Obama imposed.  While the successor contractor was required to give a hiring preference to qualified employees of the predecessor contractor who would lose their jobs because of the lost contract, I could find nothing that required the predecessor to provide a list of such names.

This answers one of my questions I think.  But it is just different enough from the EO language to provide  the FAR committee a challenge.

https://www.natlawreview.com/article/biden-re-establishes-non-displacement-executive-order-sca-contractors

”The order does retain the Obama-era order’s exceptions for employees who perform work on both federal and commercial contracts and employees for whom the successor contractor reasonably believes, based on evidence of the employee’s past performance, there would be just cause for the employee’s termination.”

 

1 hour ago, Retreadfed said:

This was a flaw in the similar requirement that Pres. Obama imposed.  While the successor contractor was required to give a hiring preference to qualified employees of the predecessor contractor who would lose their jobs because of the lost contract, I could find nothing that required the predecessor to provide a list of such names.

What about 52.222-17(d)?

“(d)(1) The Contractor shall, not less than 30 days before completion of the Contractor’s performance of services on the contract, furnish the Contracting Officer with a certified list of the names of all service employees working under this contract and its subcontracts at the time the list is submitted.”

1 hour ago, Jamaal Valentine said:

What about 52.222-17(d)

That doesn't say that the predecessor contractor must identify which employees will lose their jobs because of the change in contractors.  The right of first refusal only applied to those employees.

3 hours ago, Retreadfed said:

That doesn't say that the predecessor contractor must identify which employees will lose their jobs because of the change in contractors.  The right of first refusal only applied to those employees.

Have you read the entire clause and its prescription? If not, I think you should before we go on about it.

21 hours ago, Jamaal Valentine said:

What about 52.222-17(d)?

“(d)(1) The Contractor shall, not less than 30 days before completion of the Contractor’s performance of services on the contract, furnish the Contracting Officer with a certified list of the names of all service employees working under this contract and its subcontracts at the time the list is submitted.”

FAR 52.222-17 is Reserved.

How about FAR 52.222-41 (n) instead?

17 hours ago, Jamaal Valentine said:

Have you read the entire clause and its prescription? 

Yes, and  neither the old 52.222-17 nor the current 52,222-41 requires the predecessor contractor to identify which employees are in danger of losing their jobs because of the loss of the contract.  All that the old contractor was required to do was to provide a list of employees ranked by seniority.  That is still the case under 52.222-41.  This is something the FAR Councils will need to address when they develop a clause to implement the XO.

@Retreadfed @Jamaal Valentine @FAR-flung 1102  I'm confused by the ongoing conversation. I think you're discussing whether anything will require the predecessor contractor to provide a list of its employees. Is that right?

If that's what the discussion is about, then see E.O. 14042,Section 3, the prescribed contract clause, paragraph (c):

Quote

(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.

Does that clear things up, or have I misunderstood your discussion?

@Retreadfed,

Would you agree that the contracting officer and successor contractor are provided enough information to find out who may be affected? Successor contractors have done so in the past, in my experience. I guess we can always find a problem if we look for one. But you are right in that the FAR Council has an opportunity to clearly address the perceived flaw.

@FAR-flung 1102

I mentioned 52.222-17 after Retreadfed brought up the old EO. It’s the one I think was in effect at that time. I could be wrong.

49 minutes ago, Vern Edwards said:

I think you're discussing whether anything will require the predecessor contractor to provide a list of its employees. Is that right?

I believe @Retreadfed is concerned that nothing expressly requires the predecessor contractor to identify which employees are in danger of losing their jobs because of the loss of the contract. 

Got it.

2 hours ago, Jamaal Valentine said:

@Retreadfed

@FAR-flung 1102

I mentioned 52.222-17 after Retreadfed brought up the old EO. It’s the one I think was in effect at that time. I could be wrong.

Thank you, Jamaal, for the explanation...Sometimes an old breadcrumb trail is just what's needed.