27414 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

19.804–2 Agency offering.

* * * * *

(c) * * * All requirements, including

construction, must be synopsized

through the GPE. For construction, the

synopsis must include the geographical

area of the competition set forth in the

SBA’s acceptance letter.

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

30. Amend section 22.1009–4 in

paragraph (a) by removing ‘‘shall’’ and

adding ‘‘must’’ in its place; and by

revising the introductory text of

paragraph (b) to read as follows:

22.1009–4 All possible places of

performance not identified.

* * * * *

(b) Include the following information

in the notice of contract action (see

5.207(g)(4)):

* * * * *

PART 34—MAJOR SYSTEM

ACQUISITION

34.005–2 [Amended]

31. Amend section 34.005–2 in

paragraph (a)(1) by removing

‘‘publication in the Commerce Business

Daily’’ and adding ‘‘publicizing through

the Governmentwide point of entry’’ in

its place.

PART 35—RESEARCH AND

DEVELOPMENT CONTRACTING

32. Amend section 35.004 in the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; and by revising paragraph

(a)(1) to read as follows:

35.004 Publicizing requirements and

expanding research and development

sources.

(a) * * *

(1) Early identification and

publication of agency R&D needs and

requirements, including publicizing

through the Governmentwide point of

entry (GPE) (see part 5);

* * * * *

33. Amend section 35.016 by revising

paragraph (c) to read as follows:

35.016 Broad agency announcement.

* * * * *

(c) The availability of the BAA must

be publicized through the

Governmentwide point of entry (GPE)

and, if authorized pursuant to subpart

5.5, may also be published in noted

scientific, technical, or engineering

periodicals. The notice must be

published no less frequently than

annually. When transmitting a notice to

the GPE before January 1, 2002,

contracting officers must direct the GPE

to forward the notice to the Commerce

Business Daily.

* * * * *

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

34. Amend section 36.213–2 in the

introductory text of paragraph (b) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; and by revising paragraph

(b)(9) to read as follows:

36.213–2 Presolicitation notices.

* * * * *

(b) * * *

(9) Be publicized through the

Governmentwide point of entry in

accordance with 5.204.

[FR Doc. 01–12244 Filed 5–15–01; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 17, 22, and 36

[FAC 97–26; FAR Case 2001–016; Item II]

RIN 9000–AJ14

Federal Acquisition Regulation;

Executive Order 13202, Preservation of

Open Competition and Government

Neutrality Towards Government

Contractors’ Labor Relations on

Federal and Federally Funded

Construction Projects

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

(Councils) have agreed on an interim

rule amending the Federal Acquisition

Regulation (FAR) to implement

Executive Order (E.O.) 13202,

Preservation of Open Competition and

Government Neutrality Towards

Government Contractors’ Labor

Relations on Federal and Federally

Funded Construction Projects, which

prohibits including requirements for

affiliation with a labor organization as a

condition for award of any contract or

subcontract for construction or

construction management services.

DATES: Effective Date: May 16, 2001.

Applicability Date: This rule applies

to contracts awarded after February 17,

2001.

Comment Date: Interested parties

must submit comments to the FAR

Secretariat at the address shown below

on or before July 16, 2001 to be

considered in the formulation of a final

rule.

ADDRESSES: Submit written comments

to: General Services Administration,

FAR Secretariat (MVP), 1800 F Street,

NW, Room 4035, Attn: Ms. Laurie

Duarte, Washington, DC 20405.

Submit electronic comments via the

Internet to: farcase.2001–016@gsa.gov.

Please submit comments only and cite

FAC 97–26, FAR case 2001–016 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 Ms.

Linda Nelson, Procurement Analyst, at

(202) 501–1900. Please cite FAC 97–26,

FAR case 2001–016.

SUPPLEMENTARY INFORMATION:

A. Background

On February 17, 2001, President

George W. Bush signed E.O. 13202

revoking E.O. 12836 of February 1,

1993, and Presidential Memorandum of

June 5, 1997, entitled ‘‘Use of Project

Labor Agreements for Federal

Construction Projects.’’ The E.O. was

published in the Federal Register at 66

FR 11225, February 22, 2001, and

amended by E.O. 13208 published in

the Federal Register at 66 FR 18717,

April 11, 2001. The E.O. 13202 is

intended to improve the internal

management of the Executive branch

by—

• Promoting and ensuring open

competition on Federal and federally

funded or assisted construction projects;

• Maintaining Government neutrality

towards Government contractors’ labor

relations on Federal and federally

funded or assisted construction projects;

• Reducing construction costs to the

Government and to the taxpayers;

• Expanding job opportunities,

especially for small and disadvantaged

businesses;

• Preventing discrimination against

Government contractors or their

employees based upon labor affiliation

or lack thereof, thereby promoting the

economical, nondiscriminatory, and

efficient administration and completion

of Federal and federally funded or

assisted construction projects; and

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27415

• Preventing the inefficiency that may

result from the disruption of a

previously established contractual

relationship in particular cases.

The interim rule amends the FAR to

provide language in Part 36 on the new

E.O. The E.O. provides that agencies

may not require or prohibit offerors,

contractors, or subcontractors from

entering into or adhering to agreements

with one or more labor organizations. It

also permits agency heads to exempt a

project from the requirements of the

E.O. under special circumstances, but

the exemption may not be related to the

possibility of or an actual labor dispute.

The amended E.O. also allows for

exemption of a project governed by a

project labor agreement in place as of

February 17, 2001, which had a

construction contract awarded as of

February 17, 2001.

This is not a significant regulatory

action and, therefore, was not subject to

review under Section 6(b) of Executive

Order 12866, Regulatory Planning and

Review, dated September 30, 1993. This

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

804.

B. Regulatory Flexibility Act

The Department of Defense, the

General Services Administration, and

the National Aeronautics and Space

Administration believe that this interim

rule may have a significant economic

impact on a substantial number of small

entities within the meaning of the

Regulatory Flexibility Act, 5 U.S.C. 601,

et seq., because the rule will assist in

expanding job opportunities for small

and small disadvantaged businesses in

Federal and federally funded

construction projects. Therefore, we

have prepared an Initial Regulatory

Flexibility Analysis that is summarized

as follows:

The rule amends FAR Parts 17, 22, and 36

to implement Executive Order 13202 that

requires that any construction contract

awarded after February 17, 2001, or any

obligation of funds pursuant to such contract,

must not require or prohibit offerors,

contractors, or subcontractors to enter into or

adhere to agreements with one or more labor

organizations on the same or other related

construction project(s); or otherwise

discriminate against offerors, contractors, or

subcontractors for becoming or refusing to

become or remaining signatories or otherwise

adhering to agreements with one or more

organizations, on the same or other related

construction projects. The rule will apply to

all large and small entities that seek Federal

construction contracts. The rule should have

a positive economic impact on those small

businesses that are not union shops, and that

want to bid on Federal construction

contracts, because it may provide additional

opportunities for work on Federal

construction projects by non-union small

businesses.

We invite comments from small

businesses and other interested parties.

We will consider comments from small

entities concerning the affected FAR

Parts in accordance with 5 U.S.C. 610.

Small entities must submit such

comments separately and should cite 5

U.S.C. 601, et seq. (FAC 97–26, FAR

Case 2001–016), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the interim rule does

not impose or remove information

collection requirements that require the

approval of the Office of Management

and Budget under 44 U.S.C. 3501, et

seq.

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 (E.O.) 13202,

Preservation of Open Competition and

Government Neutrality Towards

Government Contractors’ Labor

Relations on Federal and Federally

Funded Construction Projects, dated

February 17, 2001. Section 7 of the E.O.

directed that, within 60 days of the E.O.

the Federal Acquisition Regulations

Council amend the FAR to implement

the provisions of the E.O. 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 17, 22,

and 36

Government procurement.

Dated: May 10, 2001.

Al Matera,

Director, Acquisition Policy Division.

Therefore, DoD, GSA, and NASA

amend 48 CFR parts 17, 22, and 36 as

set forth below:

1. The authority citation for 48 CFR

parts 17, 22, and 36 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 17—SPECIAL CONTRACTING

METHODS

2. Amend section 17.603 by adding

paragraph (c) to read as follows:

17.603 Limitations.

* * * * *

(c) For use of project labor

agreements, see 36.202(d).

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

3. Amend section 22.101–1 by

removing the paragraph designation

‘‘(b)’’ and adding ‘‘(b)(1)’’ in its place,

and adding a new paragraph (b)(2) to

read as follows:

22.101–1 General.

* * * * *

(b)(1) * * *

(2) For use of project labor

agreements, see 36.202(d).

* * * * *

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

4. Amend section 36.202 by adding

paragraph (d) to read as follows:

36.202 Specifications.

* * * * *

(d) In accordance with Executive

Order 13202, of February 17, 2001,

Preservation of Open Competition and

Government Neutrality Towards

Government Contractors’ Labor

Relations on Federal and Federally

Funded Construction Projects, as

amended on April 6, 2001—

(1) The Government, or any

construction manager acting on behalf

of the Government, must not—

(i) Require or prohibit offerors,

contractors, or subcontractors to enter

into or adhere to agreements with one

or more labor organizations (as defined

in 42 U.S.C. 2000e(d)) on the same or

other related construction projects; or

(ii) Otherwise discriminate against

offerors, contractors, or subcontractors

for becoming, refusing to become, or

remaining signatories or otherwise

adhering to agreements with one or

more labor organizations, on the same or

other related construction projects.

(2) Nothing in this paragraph

prohibits offerors, contractors, or

subcontractors from voluntarily entering

into project labor agreements.

(3) The head of the agency may

exempt a construction project from this

policy if the agency head finds that, as

of February 17, 2001—

(i) The agency or a construction

manager acting on behalf of the

27416 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

Government had issued or was a party

to bid specifications, project

agreements, agreements with one or

more labor organizations, or other

controlling documents with respect to

that particular project, which contained

any of the requirements or prohibitions

in paragraph (d)(1) of this section; and

(ii) One or more construction

contracts subject to such requirements

or prohibitions had been awarded.

(4) The head of the agency may

exempt a particular project, contract, or

subcontract from this policy upon a

finding that special circumstances

require an exemption in order to avert

an imminent threat to public health or

safety, or to serve the national security.

A finding of ‘‘special circumstances’’

may not be based on the possibility or

presence of a labor dispute concerning

the use of contractors or subcontractors

who are nonsignatories to, or otherwise

do not adhere to, agreements with one

or more labor organizations, or

concerning employees on the project

who are not members of or affiliated

with a labor organization.

[FR Doc. 01–12245 Filed 5–15–01; 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 97–26; FAR Case 2001–017; Item III]

RIN 9000–AJ13

Federal Acquisition Regulation;

Executive Order 13204, Revocation of

Executive Order on 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

(Councils) have agreed on an interim

rule amending the Federal Acquisition

Regulation (FAR) to implement

Executive Order (E.O.) 13204,

Revocation of Executive Order on

Nondisplacement of Qualified Workers

Under Certain Contracts, signed by the

President on February 17, 2001. The

E.O. requires that any rules

implementing E.O. 12933,

Nondisplacement of Qualified Workers

Under Certain Contracts, be promptly

rescinded.

DATES: Effective Date: May 16, 2001.

Comment Date: Interested parties

should submit comments to the FAR

Secretariat at the address shown below

on or before July 16, 2001 to be

considered in the formulation of a final

rule.

ADDRESSES: Submit written comments

to: General Services Administration,

FAR Secretariat (MVP), 1800 F Street,

NW, Room 4035, Attn: Ms. Laurie

Duarte, Washington, DC 20405.

Submit electronic comments via the

Internet to: farcase.2001–017@gsa.gov

Please submit comments only and cite

FAC 97–26, FAR case 2001–017 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 Ms.

Linda Klein, Procurement Analyst, at

(202) 501–3775. Please cite FAC 97–26,

FAR case 2001–017.

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

E.O. required that building service

contracts for public buildings include a

clause requiring the contractor under a

contract that succeeds a contract for

performance of similar services at the

same public building to offer certain

employees under the predecessor

contract, a right of first refusal to

employment under the new contract.

E.O. 12933 was implemented in the

FAR as an interim rule in FAC 97–01

(62 FR 44823) dated August 22, 1997.

The regulation was finalized with minor

changes in FAC 97–11 (64 FR 10545)

dated March 4, 1999. A further change

was made in FAC 97–15 adding the

clause to the commercial item clause list

at 52.212–5 (64 FR 72450, December 27,

1999).

On February 17, 2001, President

George W. Bush signed E.O. 13204

rescinding E.O. 12933 and calling for

the prompt recession of any orders,

rules, regulations, guidelines, or policies

implementing or enforcing E.O. 12933,

to the extent consistent with law.

Contracting officers should not take any

action on any complaint filed under

former FAR Subpart 22.12.

Effective March 23, 2001, the

Department of Labor rescinded its rule

implementing E.O. 12933 (66 FR 16126,

March 23, 2001).

This is not a significant regulatory

action and, therefore, was not subject to

review under Section 6(b) of Executive

Order 12866, Regulatory Planning and

Review, dated September 30, 1993. This

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

804.

B. Regulatory Flexibility Act

The interim rule is not expected to

have a significant economic impact on

a substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 51 U.S.C. 601, et seq.,

because the rule merely removes

requirements from the FAR that

implemented regulations issued by the

Department of Labor (DoL) for which

DoL certified would not have a

significant economic effect on a

substantial number of small entities (62

FR 28175, May 22, 1997). This rule

implements the requirements of E.O.

13204. Therefore, an Initial Regulatory

Flexibility Analysis has not been

performed. The Councils will consider

comments from small entities

concerning the affected FAR Parts in

accordance with 5 U.S.C. 610. Interested

parties must submit such comments

separately and should cite 5 U.S.C. 601,

et seq. (FAC 97–26, FAR case 2001–

017), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose information

collection requirements that require the

approval of the Office of Management

and Budget under 44 U.S.C. 3501, et

seq.

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 E.O.

13204, Revocation of Executive Order

on Nondisplacement of Qualified

Workers Under Certain Contracts, dated

February 17, 2001. E.O. 13204 required

the Federal Acquisition Regulatory

Council to promptly rescind any orders,

rules, regulations, guidelines, or policies

implementing or enforcing E.O. 12933.

However, pursuant to Public Law 98–

577 and FAR 1.501, public comments