Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44823

Dated: August 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Interim Rule Adopted as Final With

Changes

Accordingly, the interim rule

amending 48 CFR Parts 19 and 52 which

was published at 61 FR 67420,

December 20, 1996, is adopted as final

with the following change:

1. The authority citation for 48 CFR

Parts 19 and 52 continues to read as

follows:

PART 19—SMALL BUSINESS

PROGRAMS

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

2. Section 19.804–2 is amended by

revising paragraphs (b)(2) and (c) to read

as follows:

19.804–2 Agency offering.

* * * * *

(b) * * *

(2) Sole source requirements, other

than construction, should be forwarded

directly to the district office that

services the nominated firm. If the

contracting officer is not nominating a

specific firm, the offering letter should

be forwarded to the district office

servicing the geographical area in which

the contracting office is located.

(c) All requirements for 8(a)

competition, other than construction,

should be forwarded to the district

office servicing the geographical area in

which the contracting office is located.

All requirements for 8(a) construction

competition should be forwarded to the

district office servicing the geographical

area in which all or the major portion

of the construction is to be performed.

All requirements, including

construction, shall be synopsized in the

Commerce Business Daily. For

construction, the synopsis shall include

the geographical area of the competition

set forth in the SBA’s acceptance letter.

[FR Doc. 97–21496 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAC 97–01; FAR Case 94–610; Item XII]

RIN 9000–AH62

Federal Acquisition Regulation;

Executive Order 12933,

Nondisplacement of Qualified Workers

Under Certain Contracts

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comments.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on an interim rule amending the

Federal Acquisition Regulation (FAR) to

implement Executive Order 12933,

Nondisplacement of Qualified Workers

Under Certain Contracts, signed by the

President on October 20, 1994 (59 FR

53559, October 24, 1994). The Executive

Order requires that workers on certain

building service contracts be given the

right of first refusal for employment

with the successor contractor, if the

workers would otherwise lose their jobs

as a result of the award of the successor

contract. This regulatory action was not

subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993, and is

not a major rule under 5 U.S.C. 804.

DATES: Effective Date: August 22, 1997.

Applicability: With respect to

solicitations and contracts for building

service contracts covered by this

regulation, the following applies:

(1) For solicitations issued and

contracts awarded on or after the

effective date of this rule, include the

clause at 52.222–50, Nondisplacement

of Qualified Workers, except as

provided in paragraph (2)(a) below.

(2) Include the clause at 52.222–50,

Nondisplacement of Qualified Workers,

where practicable by—

(a) Amending solicitations issued, but

not awarded, prior to the effective date

of the rule; or

(b) Modifying contracts awarded prior

to the effective date of this rule.

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before

October 21, 1997 to be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (MVR), 1800 F Street, NW,

Room 4035, Attn: Ms. Beverly Fayson,

Washington, DC 20405.

E-Mail comments submitted over the

Internet should be addressed to:

farcase.94–610@gsa.gov.

Please cite FAC 97–01, FAR case 94–

610 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405 (202)

501–4755 for information pertaining to

status or publication schedules. For

clarification of content, contact Mr. Jack

O’Neill, Procurement Analyst, at (202)

501–3856. Please cite FAC 97–01, FAR

case 94–610.

SUPPLEMENTARY INFORMATION:

A. Background

Executive Order 12933 was signed

October 20, 1994, by President Clinton

and published in the Federal Register

on October 24, 1994 (59 FR 53559). The

purpose and need for the Executive

Order are clearly stated in the Executive

Order itself:

When a service contract for the

maintenance of a public building expires and

a follow-on contract is awarded for the same

service, the successor contractor typically

hires the majority of the predecessor’s

employees. On occasion, however, a followon contractor will hire a new work force, and

the predecessor’s employees are displaced.

As a buyer and participant in the

marketplace, the Government is concerned

about hardships to individuals that may

result from the operation of our procurement

system. Furthermore, the Government’s

procurement interests in economy and

efficiency benefit from the fact that a

carryover work force will minimize

disruption to the delivery of services during

any period of transition and provide the

Government the benefits of an experienced

and trained work force rather than one that

may not be familiar with the Government

facility.

In order to address these concerns,

Section 1 of the Executive Order makes

the following statement of policy:

It is the policy of the Federal Government

that solicitations and building service

contracts for public buildings shall include a

clause that requires the contractor under a

contract that succeeds a contract for

performance of similar services at the same

public building to offer those employees

(other than managerial or supervisory

employees) under the predecessor contract

whose employment will be terminated as a

result of the award of the successor contract,

a right of first refusal to employment under

the contract in positions for which they are

qualified. There shall be no employment

openings under the contract until such right
44824 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

of first refusal has been provided. Nothing in

this order shall be construed to permit a

contractor to fail to comply with any

provision of any other Executive order or

laws of the United States.

The Executive Order requires

implementing regulations to be issued

by the Secretary of Labor in consultation

with the Federal Acquisition Regulatory

Council, and that Department of Labor

(DoL) regulations and the Federal

Acquisition Regulation require

inclusion of a contract clause in covered

Federal solicitations and contracts. The

Executive Order provides that it does

not confer any right or benefit

enforceable against the United States,

but that it is not intended to preclude

judicial review of final decisions by the

Secretary of Labor in accordance with

the Administrative Procedure Act (5

U.S.C. 701, et seq.).

To obtain public input and assist in

the development of these regulations,

the DoL invited comment through a

notice of proposed rulemaking in the

Federal Register on July 18, 1995 (60 FR

36756). The final DoL rule was

published in the Federal Register on

May 22, 1997 (62 FR 28175). This FAR

interim rule implements the DoL rule.

Regarding certification requirements

of this interim rule, the certification

requirement in paragraph (e) of the

clause at 52.222–50 is considered

identical to the certification requirement

in paragraph (n) of the clause at 52.222–

41. Therefore, for the purposes of

Section 29 of the Office of Federal

Procurement Policy Act (41 U.S.C. 425),

this rule does not impose a new

certification requirement.

B. Regulatory Flexibility Act

The General Services Administration,

Department of Defense, and National

Aeronautics and Space Administration

certify that this interim rule will not

have a significant economic impact on

a substantial number of small entities

because the Executive Order mandates a

practice that is already followed in most

cases. This rule implements the

requirements of the Executive Order, as

implemented by the DoL in its final rule

of May 22, 1997 (62 FR 28175). The DoL

certified that its final rule will not have

a significant economic impact on a

substantial number of small entities. In

those cases where the practice was not

followed before the Executive Order, the

impact would be a result of the

Executive Order and the DoL regulation;

it would not be a result of the FAR

implementation.

C. Paperwork Reduction Act

This interim rule will not impose any

additional paperwork burdens beyond

the information collection and

recordkeeping requirements required

under sections 9.6(c), 9.9(b) and 9.11 of

the Department of Labor Regulations, 29

CFR Part 9, and approved under DoL

Office of Management and Budget

Control No. 1215–0190.

D. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DoD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that urgent and

compelling reasons exist to promulgate

this interim rule without prior

opportunity for public comment. This

action is necessary to implement

Executive Order 12933 of October 20,

1994, Nondisplacement of Qualified

Workers Under Certain Contracts, and

the corresponding Department of Labor

regulations that became effective on July

21, 1997. However, pursuant to Public

Law 98–577 and FAR 1.501, public

comments received in response to this

interim rule will be considered in

formulating the final rule.

List of Subjects in 48 CFR Parts 22 and

52

Government procurement.

Dated: August 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 22 and 52 are

amended as set forth below:

1. The authority citation for 48 CFR

Parts 22 and 52 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

2. Subpart 22.12, consisting of

sections 22.1200 through 22.1208, is

added to read as follows:

Subpart 22.12—Nondisplacement of

Qualified Workers Under Certain Contracts

Sec.

22.1200 Scope of subpart.

22.1201 Statement of policy.

22.1202 Definitions.

22.1203 Applicability.

22.1203–1 General.

22.1203–2 Exclusions.

22.1204 Seniority lists.

22.1205 Notice to employees.

22.1206 Complaint procedures.

22.1207 Withholding of contract payments.

22.1208 Contract clause.

Subpart 22.12—Nondisplacement of

Qualified Workers Under Certain Contracts

22.1200 Scope of subpart.

This subpart prescribes policies and

procedures for implementing Executive

Order 12933 of October 20, 1994,

Nondisplacement of Qualified Workers

Under Certain Contracts, and

Department of Labor regulations at 29

CFR part 9.

22.1201 Statement of policy.

It is the policy of the Federal

Government that contracts for building

services at public buildings shall require

the contractor under a successor

contract for performance of similar

services at the same public building, to

offer those employees (other than

managerial or supervisory employees)

under the predecessor contract, whose

employment will be terminated as a

result of the award of the successor

contract, a right of first refusal to

employment under the contract in

positions for which they are qualified.

Executive Order 12933 states that there

shall be no employment openings under

the contract until such right of first

refusal has been provided.

22.1202 Definitions.

Building service contract, as used in

this subpart, means a contract for

recurring services related to the

maintenance of a public building.

Recurring services are services that are

required to be performed regularly or

periodically throughout the course of a

contract, and throughout the course of

the succeeding or follow-on contract(s),

at one or more of the same public

buildings. Executive Order 12933 lists

examples of building service contracts

as including, but not limited to,

contracts for the recurring provision of

custodial or janitorial services; window

washing; laundry; food services; guard

or other protective services; landscaping

and groundskeeping services; and

inspection, maintenance, and repair of

fixed equipment such as elevators, air

conditioning, and heating systems.

Building service contracts do not

include—

(1) Contracts that provide

maintenance services only on a nonrecurring or irregular basis. For

example, a contract to provide servicing

of fixed equipment once a year, or to

mulch a garden on a one-time or annual

basis, is a non-recurring maintenance

contract that is not covered by this

subpart;

(2) Contracts for day-care services in

a Federal office building; or

(3) Concessions for sales of goods or

services other than food services or

laundry services.
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44825

Public building, as used in this

subpart, means any building owned by

the United States that is generally

suitable for office or storage space or

both for the use of one or more Federal

agencies or mixed ownership

corporations, its grounds, approaches,

and appurtenances.

(1) Public buildings do not include

any building on the public domain. The

public domain includes only (i) those

public lands owned by the United States

and administered by the Department of

the Interior, Bureau of Land

Management, and (ii) the National

Forest System administered by the

Department of Agriculture, U.S. Forest

Service. The public domain does not

include Federal buildings, such as office

buildings in cities or towns, that are

occupied by the Bureau of Land

Management or U.S. Forest Service

where such buildings are not on lands

administered by those agencies.

(2) Buildings on the following are not

public buildings:

(i) Properties of the United States in

foreign countries;

(ii) Native American and Native

Eskimo properties held in trust by the

United States;

(iii) Lands used in connection with

Federal programs for agricultural,

recreational, and conservation purposes,

including research in connection

therewith;

(iv) Lands used in connection with

river, harbor, flood control, reclamation,

or power projects; or for chemical

manufacturing or development projects;

or for nuclear production, research, or

development projects;

(v) Land used in connection with

housing and residential projects;

(vi) Properties of the United States

Postal Service;

(vii) Military installations (including

any fort, camp, post, naval training

station, airfield, proving ground,

military supply depot, military school,

or any similar facility of the Department

of Defense, but not including the

Pentagon);

(viii) Installations of the National

Aeronautics and Space Administration,

except regular office buildings; and

(ix) Department of Veterans Affairs

installations used for hospital or

domiciliary purposes.

(3) Buildings leased to the

Government are not public buildings

unless the building is leased pursuant to

a lease-purchase contract.

Service employee, as used in this

subpart, means any person engaged in

the performance of recurring building

services other than a person in a bona

fide executive, administrative, or

professional capacity, as those terms are

defined in 29 CFR part 541, and shall

include all such persons regardless of

any contractual relationship that may be

alleged to exist between a contractor

and such person.

22.1203 Applicability.

22.1203–1 General.

(a) This subpart applies to building

service contracts where the contract is

entered into by the Government in an

amount equal to or greater than the

simplified acquisition threshold and the

contract succeeds a contract for similar

work at one or more of the same public

buildings.

(b)(1) Except as provided in paragraph

(b)(2) of this subsection, a contract that

includes a requirement for recurring

building services is subject to this

subpart even if the contract also

contains other non-covered services or

non-service requirements, such as

construction or supplies, and even if the

contract is not subject to the McNamaraO’Hara Service Contract Act, 41 U.S.C.

351, et seq. However, the requirements

of this subpart apply only to the

building services portion of the contract,

and only to those public buildings for

which services were provided under a

predecessor contract.

(2) This subpart does not apply to

building services that are only

incidental to a contract for another

purpose, such as incidental

maintenance under a contract to operate

a day-care center. Building service

requirements will not be considered

incidental, and, therefore, will be

subject to this subpart where (i) the

contract contains specific requirements

for a substantial amount of building

services or it is ascertainable that a

substantial amount of building services

will be necessary to the performance of

the contract (the word ‘‘substantial’’

relates to the type and quantity of

building services to be performed and

not merely to the total value of such

work, whether in absolute dollars or

cost percentages as compared to the

total value of the contract); and (ii) the

building services work is physically or

functionally separate, and as a practical

matter is capable of being performed on

a segregated basis, from the other work

called for by the contract. Building

services performed on a building being

leased to the Government pursuant to a

lease-purchase contract are not covered

unless the services are being performed

under a contract directly with the

Government.

22.1203–2 Exclusions.

(a) This subpart does not apply to—

(1) Contracts under the simplified

acquisition threshold;

(2) Contracts for commodities or

services produced or provided by the

blind or severely handicapped, awarded

pursuant to the Javits-Wagner-O’Day

Act, 41 U.S.C. 46–48a, and any future

enacted law creating an employment

preference for some group of workers

under building service contracts;

(3) Guard, elevator operator,

messenger, or custodial services

provided to the Government under

contracts with sheltered workshops

employing the severely handicapped as

outlined in the Edgar Amendment,

section 505 of the Treasury, Postal

Services and General Government

Appropriations Act, 1995, Public Law

103–329; or

(4) Agreements for vending facilities

operated by the blind, entered into

under the preference provisions of the

Randolph-Sheppard Act, 20 U.S.C. 107.

(b) A successor contractor is not

required to offer a right of first refusal

for employment when a majority of its

employees, who will perform the

particular service under the contract,

will work both at the public building

and at other locations under contracts

not subject to Executive Order 12933.

Examples include, but are not limited

to, pest control or trash removal services

where the employees periodically visit

various Government and nonGovernment sites, and make service

calls to repair equipment at various

Government and non-Government

buildings. This exclusion does not

apply (i) where the service employees’

work on non-covered contracts is not

performed as a part of the same job as

their work on the Federal contract in

question, or where they separately apply

for work on the non-Federal contracts;

or (ii) where the employees are

deployed in a manner that is designed

to avoid the purposes of Executive

Order 12933. In making this

determination, all the facts and

circumstances are examined, including

particularly the manner in which the

predecessor contractor deployed its

work force to perform the services, the

manner in which the work force is

typically deployed to perform such

services, and the manner in which the

contract is structured.

22.1204 Seniority lists.

(a) Not less than 60 days before

completion of its contract, the

predecessor contractor must furnish the

contracting officer with a certified list of

the names of all service employees

engaged in the performance of building

services, working for the contractor at

the Federal facility at the time the list

is submitted, together with their

anniversary dates of employment. The
44826 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

contracting officer in turn shall provide

the list to the successor contractor and,

if requested, to employees of the

predecessor contractor or their

representatives.

(b) The list provided pursuant to

paragraph (a) of this section satisfies the

requirements of paragraph (n) of the

clause at 52.222–41, Service Contract

Act of 1965, as Amended.

22.1205 Notice to employees.

(a) Where the successor contract is a

contract subject to this subpart, the

contracting officer will provide written

notice to service employees of the

predecessor contractor, who are engaged

in building services, of their possible

right to an offer of employment. Such

notice either may be posted in a

conspicuous place at the work site or

may be delivered to the employees

individually.

(b) Contracting officers may use either

the following suggested notice format or

another format with the same

information.

Notice to Building Service Contract

Employees

The contract for [type of service] services

currently performed by [predecessor

contractor] has been awarded to a new

contractor. [Successor contractor] will begin

performance on [date successor contract

begins].

As a condition of the new contract

[successor contractor] is required to offer

employment to the employees of

[predecessor contractor] working at [the

contract work site or work sites] except in the

following situations:

• Managerial or supervisory employees on

the current contract are not entitled to an

offer of employment.

• [Successor contractor] may reduce the

size of the current work force. Therefore,

only a portion of the existing work force may

receive employment offers. However,

[successor contractor] must offer

employment to the employees of

[predecessor contractor] if any vacancies

occur in the first 3 months of the new

contract.

• [Successor contractor] may employ a

current employee on the new contract before

offering employment to [predecessor

contractor’s] employees only if the current

employee has worked for [successor

contractor] for at least 3 months immediately

preceding the commencement of the new

contract and would face layoff or discharge

if not employed under the new contract.

• Where [successor contractor] has reason

to believe, based on credible information

from a knowledgeable source, that an

employee’s performance has been unsuitable

on the current contract, the employee is not

entitled to employment with the new

contractor.

If you are offered employment on the new

contract, you will have at least 10 days to

accept the offer.

If you are an employee of [predecessor

contractor] and believe that you are entitled

to an offer of employment with [successor

contractor], but have not received an offer,

you may file a complaint with [contracting

officer or representative], the contracting

officer handling this contract at: [address and

telephone number of contracting officer]. If

the contracting officer is unable to resolve

your complaint, the contracting officer will

forward a report to the U.S. Department of

Labor, Wage and Hour Division. You also

may file your complaint directly with

[address of the nearest District Office of the

Wage and Hour Division].

If you have any questions about your right

to employment on the new contract, contact:

[Name, address, and telephone number of

the contracting officer.]

22.1206 Complaint procedures.

(a) Any employee of the predecessor

contractor, who believes that he or she

was not offered employment by the

successor contractor as required by this

subpart, may file a complaint with the

contracting officer.

(b) Upon receipt of the complaint, the

contracting officer shall provide

information to the employee(s) and the

successor contractor about their rights

and responsibilities under this subpart.

If the matter is not resolved through

such actions, the contracting officer

shall, within 30 days from receipt of the

complaint, obtain statements of the

positions of the parties and forward the

complaint and statements, together with

a summary of the issues and any

relevant facts known to the contracting

officer, to the nearest District Office of

the Wage and Hour Division,

Employment Standards Administration,

U.S. Department of Labor, with copies

to the contractor and the complaining

employee.

(c) If the contracting officer has not

forwarded the complaint to the Wage

and Hour Division within 30 days of

receipt of the complaint, as required by

paragraph (b) of this section, the

complainant may refile the complaint

directly with the nearest District Office

of the Wage and Hour Division.

2.1207 Withholding of contract payments.

(a) The Secretary of Labor has the

authority to issue orders prescribing

appropriate remedies, including, but not

limited to, requiring employment of the

predecessor contractor’s employees and

payment of wages lost.

(b) After an investigation and a

determination by the Administrator,

Wage and Hour Division, Department of

Labor, that lost wages or other monetary

relief is due, the Administrator may

direct that so much of the accrued

payments due on either the contract or

any other contract between the

contractor and the Government shall be

withheld in a deposit fund as is

necessary to pay the moneys due. Upon

the final order of the Secretary of Labor

that such moneys are due, the

Administrator may direct that such

withheld funds be transferred to the

Department of Labor for disbursement.

(c) If the contracting officer or the

Secretary of Labor finds that the

predecessor contractor has failed to

provide a list of the names of employees

working under the contract in

accordance with the requirements of the

predecessor’s contract, the contracting

officer may take such action as may be

necessary to cause the suspension of the

payment of funds until such time as the

list is provided to the contracting

officer.

22.1208 Contract clause.

The contracting officer shall insert the

clause at 52.222–50, Nondisplacement

of Qualified Workers, in solicitations

and contracts for building services that

succeed contracts for performance of

similar work at the same public building

and that are not excluded by 22.1203.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

3. Section 52.222–50 is added to read

as follows:

52.222–50 Nondisplacement of Qualified

Workers.

As prescribed in 22.1208, insert the

following clause:

Nondisplacement of Qualified Workers (Aug

1997)

(a) Definition. Service employee, as used in

this clause, means any person engaged in the

performance of recurring building services

other than a person employed in a bona fide

executive, administrative, or professional

capacity, as those terms are defined in 29

CFR part 541, and shall include all such

persons regardless of any contractual

relationship that may be alleged to exist

between a contractor and such person.

(b) Consistent with the efficient

performance of this contract, the Contractor

shall, except as otherwise provided herein, in

good faith offer those employees engaged in

the performance of building services (other

than managerial and supervisory employees)

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 to employment

under the contract in positions for which the

employees are qualified. The Contractor 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. Where the Contractor offers a right

of first refusal to fewer employees than were

employed by the predecessor contractor, its
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44827

obligation under the contract to the

predecessor’s employees to fill vacancies

created by increased staffing levels or by

employee termination, either voluntarily or

for cause, continues for 3 months after

commencement of the contract. Except as

provided in paragraph (c) of this clause, the

Contractor shall not offer employment under

the contract to any person prior to having

complied fully with this obligation.

(c) Notwithstanding the Contractor’s

obligation under paragraph (b) of this clause,

the Contractor (1) may employ on the

contract any employee who has worked for

the Contractor for at least 3 months

immediately preceding the commencement

of this contract and who would otherwise

face layoff or discharge, (2) is not required to

offer a right of first refusal to any employee(s)

of the predecessor contractor who are not

service employees, and (3) is not required to

offer a right of first refusal to any employee(s)

of the predecessor contractor who the

Contractor reasonably believes, based on the

particular employee’s past performance, has

failed to perform suitably on the job.

Examples of permissible sources for this

determination include evidence of

disciplinary action based on poor

performance or evidence from the contracting

agency that the particular employee did not

perform suitably. Offers of employment are

governed by the following:

(i) The offer shall state the time within

which the employee must accept such offer,

but in no case shall the period for acceptance

be less than 10 days.

(ii) The offer may be made by separate

written notice to each employee, or orally at

a meeting attended by a group of the

predecessor contractor’s employees.

(iii) An offer need not be to a position

similar to that which the employee

previously held, but the employee must be

qualified for the position.

(iv) An offer to a position providing lower

pay or benefits than the employee held with

the predecessor contractor will be considered

bona fide if the Contractor shows valid

business reasons.

(v) To ensure that an offer is effectively

communicated, the Contractor should take

reasonable efforts to make the offer in a

language that each worker understands; for

example, by having a co-worker or other

person fluent in the worker’s language at the

meeting to translate or otherwise assist an

employee who is not fluent in English.

(d) For a period of 1 year, the Contractor

shall maintain copies of any written offers of

employment or a contemporaneous written

record of any oral offers of employment,

including the date, location, and attendance

roster of any employee meeting(s) at which

the offers were extended, a summary of each

meeting, a copy of any written notice that

may have been distributed, and the names of

the predecessor’s employees to whom an

offer was made. Copies of such

documentation shall be provided upon

request to any authorized representative of

the contracting agency or the Department of

Labor.

(e) The Contractor shall, no less than 60

days before completion of this contract,

furnish the Contracting Officer with a

certified list of the names of all service

employees engaged in the performance of

building services, working for the Contractor

at the Federal facility at the time the list is

submitted. The list also shall contain

anniversary dates of employment on the

contract either with the current or

predecessor contractors of each service

employee, as appropriate. The Contracting

Officer will provide the list to the successor

contractor, and the list shall be provided

upon request to employees or their

representatives. Submission of this list will

satisfy the requirements of paragraph (n) of

the clause at 52.222–41, Service Contract Act

of 1965, as Amended.

(f) The requirements of this clause do not

apply to services where a majority of the

Contractor’s employees performing the

particular services under the contract work at

the public building and at other locations

under contracts not subject to Executive

Order 12933, provided that the employees are

not deployed in a manner that is designed to

avoid the purposes of the Executive Order.

(g) If it is determined, pursuant to

regulations issued by the Secretary of Labor,

that the Contractor is 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, as

provided in Executive Order 12933, the

regulations of the Secretary of Labor at 29

CFR part 9, and relevant orders of the

Secretary of Labor, or as otherwise provided

by law.

(h) The Contractor is advised that the

Contracting Officer shall withhold or cause to

be withheld from the Contractor, under this

or any other Government contract with the

Contractor, such sums as an authorized

official of the Department of Labor requests,

upon a determination by the Administrator of

the Wage and Hour Division, the

Administrative Law Judge, or the

Administrative Review Board, that the

Contractor failed to comply with the terms of

this clause, and that wages lost as a result of

the violations are due to employees or that

other monetary relief is appropriate.

(i) The Contractor shall cooperate in any

investigation by the contracting agency or the

Department of Labor into possible violations

of the provisions of this clause and shall

make records requested by such official(s)

available for inspection, copying, or

transcription upon request.

(j) Disputes concerning the requirements of

this clause shall not be subject to the general

disputes clause of this contract. Such

disputes shall be resolved in accordance with

applicable law and the procedures of the

Department of Labor set forth in 29 CFR part

9. Disputes concerning the requirements of

this clause include disputes between or

among any of the following: The Contractor,

the contracting agency, the U.S. Department

of Labor, and the employees under the

contract or its predecessor contract.

(End of clause)

[FR Doc. 97–21497 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 25

[FAC 97–01; FAR Case 97–019; Item XIII]

RIN 9000–AH68

Federal Acquisition Regulation;

Designation of Hong Kong

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

add Hong Kong as a designated country

under the Trade Agreements Act of

1979, as directed by the United States

Trade Representative. This regulatory

action was not subject to Office of

Management and Budget review under

Executive Order 12866, dated

September 30, 1993, and is not a major

rule under 5 U.S.C. 804.

DATE: Effective August 22, 1997.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202)

501–4755 for information pertaining to

status or publication schedules. For

clarification of content, contact Mr. Paul

Linfield, Procurement Analyst, at (202)

501–1757. Please cite FAC 97–01, FAR

case 97–019.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends FAR 25.401 to

add Hong Kong as a designated country

under the Trade Agreements Act of

1979, as directed by the United States

Trade Representative. The accession of

Hong Kong to the World Trade

Organization Agreement on Government

Procurement became effective on June

19, 1997.

B. Regulatory Flexibility Act

This final rule does not constitute a

significant FAR revision within the

meaning of FAR 1.501 and Public Law

98–577, and publication for public

comment is not required. Therefore, the

Regulatory Flexibility Act does not

apply. However, comments from small

entities concerning the affected FAR

subpart will be considered in