Back in August 2011, the Department of Labor (DOL) issued a final rule providing regulations to implement Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers Under Service Contracts. In May 2012, the Department of Defense (DOD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to implement the DOL’s regulations, which provided qualified employees who worked under a preceding contract the opportunity to work under a successor contract if they so choose.
The proposed rule would add a subpart to the FAR requiring successor service contractors and their subcontractors to offer qualified employees, who were employed under the prior contract and would otherwise be terminated at the award of the successor contract, a right of first refusal of employment under the successor contract. This right of first refusal would extend to both long-term and short-term workers on contracts in excess of $150,000.
Comments submitted to DOD, GSA and NASA demonstrate contractor dissatisfaction with the proposed rule. These comments came from individuals, businesses and associations. For example, the Professional Services Council (PSC) expressed its concerns about potential contradictions between the proposed rule and the regulations finalized by DOL. Issues for which PCS requested consistency and clarification included limitations on the use of suspension and debarment, and flexibility by department and agency heads to apply waivers in whole and in part. In addition, PCS reasoned that the proposed FAR subpart should narrow the scope of employees subject to the policy. PCS proposed only offering employment to employees who worked for the previous contractor for at least six months.
DOD, GSA, and NASA are currently reviewing these and other comments received. Whether any of the comments submitted by the July 2, 2012, deadline will alter the proposed rule remains to be determined.