Contractor Transition

[joel hoffman]

Oops triplicate post. Was sitting on  my cell phone. Sheesh.

Bob, please delete this and my previous duplicate post. Sorry.

[Vern Edwards]

This is wandering pretty far afield.

[formerfed]

38 minutes ago, Vern Edwards said:

This is wandering pretty far afield.

And I’m partially to blame 👍🏻

[Retreadfed]

23 hours ago, formerfed said:

Biden’s Executive Order from last November for actions covered by the Service Contract Act has a different spin.

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

 

23 hours ago, formerfed said:

consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law.

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

[joel hoffman]

5 hours ago, Retreadfed said:

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

 

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

Regardless, as I previously said,  the Biden Executive Order doesn’t affect the current transition. The existing contract is five years old (at the end of the 4th Option Year “OY4”).  That is long before Biden was even the President, let alone before the issuance date of the E.O. or its effective date. There’s no sense in going down a rabbit hole.

It may be several years before many contracts containing the new clause transition between contractors.

[formerfed]

8 hours ago, Retreadfed said:

I don't think so.  The XO only requires release of specified information to a successor contractor and other potential recipients.  It does not require release of the information to any other recipient.  Thus, a competitor is not  entitled to receive the information during the contract formation process.  

 

It is not clear what this language in the XO means.  It can be interpreted as meaning that release of the specified information is subject to the Privacy Act, FOIA and 18 U.S.C. 1905.

This is getting way off course from Newbie’s question.  The issue is releasing incumbent employee names to the successor contractor - the award has already been made.  No one has ever mentioned release of this information prior to award and to competitors.

[formerfed]

7 hours ago, joel hoffman said:

It may be several years before many contracts containing the new clause transition between contractors.

Joel, you’re underestimating the desire to appease politically.  I was curious and did a search of solicitations.  Many have already added this language that I reviewed

Quote

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.”

 

 

 

[joel hoffman]

9 hours ago, formerfed said:

Joel, you’re underestimating the desire to appease politically.  I was curious and did a search of solicitations.  Many have already added this language that I reviewed

 

 

 

formerfed, I meant that the current (predecessor) contracts don’t have the new  clause in them. The current contractor’s** responsibility and the government’s resulting handling of information upon completion** is described in paragraph (n) of the 2018 version of Clause at 52.222-41:

[**EDIT: note that the “current” FAR clause is dated August 2018. The predecessor contract that is the subject of this thread is about five years old. I don’t know what if any transition requirements would have applied to a solicitation or contract awarded in circa 2017.  Obama issued an EO in 2009. Trump rescinded it in 2020 with another EO. Biden has now rescinded that one but didn’t reinstate Obama’s EO.]

“(n) Seniority List. Not less than 10 days prior to completion of any contract being performed at a Federal facility where service employees may be retained in the performance of the succeeding contract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a Contractor (predecessor) or  successor (29 CFR 4.173), the incumbent Prime Contractor shall furnish the Contracting Officer a certified list of the names, of all  service employees on the Contractor's or subcontractor's payroll during the last month of contract performance. Such list shall also contain anniversary dates of employment on the contract either with the current or predecessor Contractors of each such  service employee. The Contracting Officer shall turn over such list to the  successorContractor at the commencement of the succeeding contract”  

[EDIT: As noted in my above edit note, I don’t know what if any transition requirements would have been applicable to the specific contract in this thread.]

Paragraph (c) of the new clause would apply to the contractor and government for transition of those contracts to a new contract.

“(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.”

Edited October 4, 2022 by joel hoffman
See my edit notes. I don’t know what if any transition requirements would have been applicable to the predecessor contract being discussed in this thread.

[formerfed]

I understand.   I was responding to the comment on how long the EO will take to go into effect.  It’s interesting that a few solicitations I saw have the clause in it.  
 

But DoL published details in the Federal Register including how it will be implemented and enforced.

https://www.federalregister.gov/documents/2022/07/15/2022-14967/nondisplacement-of-qualified-workers-under-service-contracts

Public comments are due by August 15 so I wonder if conflicts will arise between the clause language in the EO and what DOL ends up with?

[joel hoffman]

18 hours ago, joel hoffman said:

It may be several years before many contracts containing the new clause transition between contractors.

 

8 hours ago, formerfed said:

I understand.   I was responding to the comment on how long the EO will take to go into effect.  It’s interesting that a few solicitations I saw have the clause in it.

I meant that It may be a few years for current or new contracts to transition to a successor contractor.

New contracts will eventually contain the additional requirements for the successor contractor. Yes, some current solicitations probably will be proactive and are including the proposed language.

But current contract holders likely will follow their current contract requirements for a “predecessor” during a future transition to a successor and the government should also follow whatever government requirements are in those contracts that will be handed off to a successor.

The contract that is the subject of this thread and the predecessor’s and government’s actions in its transition to a successor should be consistent with whatever policies and procedures were in effect prior to the 2018 clause at FAR  52.222-41. The successor will follow the procedures in its new contract.

I can see where a current contractor might complain when the successor’s needs and interests are inconsistent with  policies and procedures that are in the current contract.

That’s what happens when policies yo-yo back and forth with changes in the Presidency. It reminds me of the Project Labor Agreement policy yo-yo for construction contracts.