Nondisplacement of Qualified Workers Under Service Contracts
| Published date | 23 November 2021 |
| Citation | 86 FR 66397 |
| Record Number | 2021-25715 |
| Section | Presidential Documents |
| Court | Executive Office Of The President |
Federal Register, Volume 86 Issue 223 (Tuesday, November 23, 2021)
[Federal Register Volume 86, Number 223 (Tuesday, November 23, 2021)]
[Presidential Documents]
[Pages 66397-66401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25715] Presidential Documents
Federal Register / Vol. 86 , No. 223 / Tuesday, November 23, 2021 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 66397]]
Executive Order 14055 of November 18, 2021
Nondisplacement of Qualified Workers Under
Service Contracts
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
procurement, it is hereby ordered as follows:
Section 1. Policy. 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. Using a carryover work force
reduces disruption in the delivery of services during
the period of transition between contractors, maintains
physical and information security, and provides the
Federal Government with the benefits of an experienced
and well-trained work force that is familiar with the
Federal Government's personnel, facilities, and
requirements. These same benefits are also often
realized when a successor contractor or subcontractor
performs the same or similar contract work at the same
location where the predecessor contract was performed.
Sec. 2. Definitions.
(a) ``Service contract'' or ``contract'' means any
contract, contract-like instrument, 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. 6701 et seq., and its
implementing regulations.
(b) ``Employee'' means a service employee as
defined in the Service Contract Act of 1965, as
amended, 41 U.S.C. 6701(3).
(c) ``Agency'' means an executive department or
agency, including an independent establishment subject
to the Federal Property and Administrative Services
Act, 40 U.S.C. 102(4)(A).
Sec. 3. Nondisplacement of Qualified Workers. (a) Each
agency shall, to the extent permitted by law, ensure
that service contracts and subcontracts that succeed a
contract for performance of the same or similar work,
and solicitations for such contracts and subcontracts,
include the following clause:
``Nondisplacement of Qualified Workers: (a) The
contractor and its subcontractors shall, except as
otherwise provided herein, in good faith offer service
employees (as defined in the Service Contract Act of
1965, as amended, 41 U.S.C. 6701(3)) employed under the
predecessor contract and its subcontracts whose
employment would be terminated as a result of the 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 those 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 more or fewer
employees than the predecessor contractor employed in
connection with performance of the work solely on the
basis of that determination. Except as provided in
paragraph (b), there shall be no employment opening
under this contract or subcontract, and the contractor
and any subcontractors shall not offer employment under
this contract to any person prior to having complied
fully with the obligations described in this clause.
The contractor and its subcontractors shall make an
express offer of employment to each
[[Page 66398]]
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
business days.
``(b) Notwithstanding the obligation under
paragraph (a) above, the contractor and any
subcontractors (1) 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. 6701(3), and (2) are not required to
offer a right of first refusal to any employee(s) of
the predecessor contractor for whom the contractor or
any of its subcontractors reasonably believes, based on
reliable evidence of the particular employees' past
performance, that there would be just cause to
discharge the employee(s) if employed by the contractor
or any subcontractors.
``(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.
``(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, the Secretary may impose
appropriate sanctions against the contractor or its
subcontractors, as provided in Executive Order (No.)
____, the regulations implementing that order, 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) and (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 (c)
of this clause. The contractor shall 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
noncompliance: 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.''
(b) Nothing in this order shall be construed to
require or recommend that agencies, contractors, or
subcontractors pay the relocation costs of employees
who exercise their right to work for a successor
contractor or subcontractor pursuant to this order.
Sec. 4. Location Continuity. (a) When an agency
prepares a solicitation for a service contract that
succeeds a contract for performance of the same or
similar work, the agency shall consider whether
performance of the work in the same locality or
localities in which the contract is currently being
performed is reasonably necessary to ensure economical
and efficient provision of services.
[[Page 66399]]
(b) If an agency determines that performance of the
contract in the same locality or localities is
reasonably necessary to ensure economical and efficient
provision of services, then the agency shall, to the
extent consistent with law, include a requirement or
preference in the solicitation for the successor
contract that it be performed in the same locality or
localities.
Sec. 5. Exclusions. This order shall not apply to:
(a) contracts under the simplified acquisition
threshold as defined in 41 U.S.C. 134; or
(b) 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. 6. Exceptions Authorized by Agencies. (a) A senior
official within an agency may grant an exception from
the requirements of section 3 of this order for a
particular contract by, no later than the solicitation
date, providing a specific written explanation of why
at least one of the following circumstances exists with
respect to that contract:
(i) Adhering to the requirements of section 3 of this order would not
advance the Federal Government's interests in achieving economy and
efficiency in Federal procurement;
(ii) Based on a market analysis, adhering to the requirements of section 3
of this order would:
(A) substantially reduce the number of potential bidders so as to
frustrate full and open competition; and
(B) not be reasonably tailored to the agency's needs for the contract; or
(iii) Adhering to the requirements of section 3 of this order would
otherwise be inconsistent with statutes, regulations, Executive Orders, or
Presidential Memoranda.
(b) To the extent permitted by law and consistent
with national security and executive branch
confidentiality interests, each agency shall publish,
on a centralized public website, descriptions of the
exceptions it has granted under this section, and
ensure that the contractor notifies affected workers
and their collective bargaining representatives, if
any, in writing of the agency's determination to grant
an exception.
(c) On a quarterly basis, each agency shall report
to the Office of Management and Budget descriptions of
the exceptions granted under this section.
Sec. 7. Regulations and Implementation. (a) The
Secretary of Labor (Secretary) shall, to the extent
consistent with law, issue final regulations within 180
days of the date of this order to implement the
requirements of this order, other than those specified
in sections 6(b) and (c) of this order.
(b) Within 60 days of the Secretary issuing final
regulations, the Federal Acquisition Regulatory Council
(FAR Council), to the extent consistent with law, shall
amend the Federal Acquisition Regulation to provide for
inclusion in Federal procurement solicitations and
contracts subject to this order the clause described in
section 3 of this order.
(c) The Director of the Office of Management and
Budget shall, to the extent consistent with law, issue
guidance to implement section 6(c) of this order.
Sec. 8. Enforcement. (a) The Secretary shall have the
authority to investigate potential violations of, and
obtain 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 may also provide that, if 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
[[Page 66400]]
or subcontractor has a substantial interest, may 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 Federal 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 to present information and
argument in opposition to the proposed debarment or
inclusion on the list.
(b) This order creates no rights under the Contract
Disputes Act, 41 U.S.C. 7101 et seq., and disputes
regarding the requirements of the contract clause
prescribed by section 3 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.
Sec. 9. Revocation. Executive Order 13897 of October
31, 2019 (Improving Federal Contractor Operations by
Revoking Executive Order 13495), is revoked. Executive
Order 13495 of January 30, 2009 (Nondisplacement of
Qualified Workers Under Service Contracts), remains
revoked.
Sec. 10. Severability. If any provision of this order,
or the application of any provision of this order to
any person or circumstance, is held to be invalid, the
remainder of this order and its application to any
other person or circumstance shall not be affected
thereby.
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.
Sec. 12. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or
the head thereof; or
(ii) the 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.
[[Page 66401]]
(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.
(Presidential Sig.)
THE WHITE HOUSE,
November 18, 2021.
[FR Doc. 2021-25715
Filed 11-22-21; 8:45 am]
Billing code 3395-F2-P
