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Executive Order on Nondisplacement of Qualified Workers Under Service Contracts

By the authority vested in me as President by the Constitution and the legislation of the United States of The us, together with the Federal Home and Administrative Products and services Act, 40 U.S.C. 101 et seq., and in order to market financial system and performance in procurement, it is hereby requested as follows:

Section 1.  Coverage.  When a services contract expires, and a adhere to-on agreement is awarded for the very same or comparable providers, the Federal Government’s procurement pursuits in economy and performance are best served when the successor contractor or subcontractor hires the predecessor’s personnel, so steering clear of displacement of these staff.  Using a carryover work drive cuts down disruption in the supply of companies for the duration of the period of time of changeover involving contractors, maintains actual physical and facts security, and presents the Federal Govt with the advantages of an skilled and effectively-educated operate drive that is familiar with the Federal Government’s personnel, facilities, and requirements.  These exact same advantages are also generally recognized when a successor contractor or subcontractor performs the exact or comparable contract operate at the similar site where the predecessor deal was executed. 

Sec. 2.  Definitions.
     (a)  “Service contract” or “contract” indicates any deal, agreement-like instrument, or subcontract for providers entered into by the Federal Governing administration or its contractors that is coated by the Assistance Agreement Act of 1965, as amended, 41 U.S.C. 6701 et seq., and its applying restrictions.
     (b)  “Employee” implies a assistance staff as outlined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3).
     (c)  “Agency” signifies an govt section or agency, like an impartial institution topic to the Federal Property and Administrative Companies Act, 40 U.S.C. 102(4)(A).

Sec. 3.  Nondisplacement of Qualified Employees.  (a)  Each agency shall, to the extent permitted by legislation, assure that support contracts and subcontracts that thrive a contract for overall performance of the similar or identical perform, and solicitations for these types of contracts and subcontracts, contain the subsequent clause:

“Nondisplacement of Skilled Workers:  (a)  The contractor and its subcontractors shall, apart from as in any other case offered herein, in fantastic faith offer you assistance staff members (as defined in the Provider Deal Act of 1965, as amended, 41 U.S.C. 6701(3)) employed under the predecessor contract and its subcontracts whose work would be terminated as a consequence of the award of this agreement or the expiration of the deal under which the workers had been hired, a proper of 1st refusal of employment beneath this deal in positions for which those workforce are skilled.  The contractor and its subcontractors shall establish the number of employees important for economical efficiency of this deal and may well elect to hire additional or less workforce than the predecessor contractor used in link with effectiveness of the operate entirely on the foundation of that dedication.  Except as delivered in paragraph (b), there shall be no work opening below this contract or subcontract, and the contractor and any subcontractors shall not offer you work below this agreement to any particular person prior to owning complied totally with the obligations explained in this clause.  The contractor and its subcontractors shall make an specific offer you of employment to each individual worker as provided herein and shall point out the time in which the personnel must accept this kind of offer, but in no circumstance shall the interval in just which the personnel ought to settle for the provide of work be much less than 10 business days.

“(b)  Notwithstanding the obligation under paragraph (a) higher than, the contractor and any subcontractors (1) are not demanded to give a suitable of initially refusal to any staff(s) of the predecessor contractor who are not provider workforce in just the indicating of the Provider Agreement Act of 1965, as amended, 41 U.S.C. 6701(3), and (2) are not necessary to present a suitable of initially refusal to any employee(s) of the predecessor contractor for whom the contractor or any of its subcontractors reasonably believes, primarily based on trusted evidence of the unique employees’ earlier general performance, that there would be just lead to to discharge the personnel(s) if used by the contractor or any subcontractors.  

“(c)  The contractor shall, not much less than 10 business times just before the before of the completion of this agreement or of its perform on this deal, furnish the Contracting Officer a certified listing of the names of all services workers operating under this agreement and its subcontracts all through the final thirty day period of contract general performance.  The record shall also comprise anniversary dates of work of every company staff below this contract and its predecessor contracts possibly with the present or predecessor contractors or their subcontractors.  The Contracting Officer shall offer the listing to the successor contractor, and the record shall be presented on request to employees or their reps, regular with the Privateness Act, 5 U.S.C. 552a, and other relevant legislation.

“(d)  If it is determined, pursuant to restrictions issued by the Secretary of Labor (Secretary), that the contractor or its subcontractors are not in compliance with the specifications of this clause or any regulation or purchase of the Secretary, the Secretary could impose proper sanctions from the contractor or its subcontractors, as furnished in Government Buy (No.) _______, the polices applying that get, and applicable orders of the Secretary, or as if not offered by legislation.

“(e)  In every single subcontract entered into in purchase to conduct providers underneath this contract, the contractor will contain provisions that make sure that each and every subcontractor will honor the necessities of paragraphs (a) and (b) with respect to the workforce of a predecessor subcontractor or subcontractors doing the job less than this agreement, as perfectly as of a predecessor contractor and its subcontractors.  The subcontract shall also consist of provisions to be certain that the subcontractor will deliver the contractor with the facts about the staff of the subcontractor necessary by the contractor to comply with paragraph (c) of this clause.  The contractor shall get this kind of action with respect to any these types of subcontract as may perhaps be directed by the Secretary as a signifies of implementing such provisions, such as the imposition of sanctions for noncompliance:  provided, nonetheless, that if the contractor, as a outcome of these path, becomes concerned in litigation with a subcontractor, or is threatened with this sort of involvement, the contractor might request that the United States enter into these kinds of litigation to protect the passions of the United States.”

     (b)  Nothing in this buy shall be construed to have to have or suggest that businesses, contractors, or subcontractors shell out the relocation expenditures of employees who work out their right to work for a successor contractor or subcontractor pursuant to this buy.

Sec. 4.  Locale Continuity.  (a)  When an company prepares a solicitation for a support agreement that succeeds a deal for functionality of the very same or related get the job done, the company shall take into consideration no matter if efficiency of the work in the very same locality or localities in which the agreement is at this time currently being done is reasonably vital to ensure inexpensive and efficient provision of expert services.
     (b)  If an agency decides that overall performance of the deal in the similar locality or localities is moderately necessary to assure affordable and successful provision of services, then the company shall, to the extent dependable with legislation, include a requirement or desire in the solicitation for the successor contract that it be executed in the same locality or localities.

Sec. 5.  Exclusions.  This order shall not utilize to:
     (a)  contracts less than the simplified acquisition threshold as outlined in 41 U.S.C. 134 or
     (b)  employees who were being hired to work underneath a Federal company contract and one or more nonfederal provider contracts as section of a solitary position, presented that the workforce had been not deployed in a manner that was intended to stay away from the reasons of this get.

Sec. 6.  Exceptions Authorized by Agencies.  (a)  A senior formal within an company may grant an exception from the demands of area 3 of this get for a individual agreement by, no afterwards than the solicitation date, offering a particular created rationalization of why at the very least a single of the adhering to situation exists with regard to that deal: 
          (i)    Adhering to the needs of part 3 of this get would not advance the Federal Government’s interests in acquiring financial state and effectiveness in Federal procurement
          (ii)   Based on a industry evaluation, adhering to the specifications of part 3 of this purchase would:
               (A)  substantially minimize the quantity of potential bidders so as to frustrate comprehensive and open up opposition and
               (B)  not be moderately customized to the agency’s needs for the contract or
          (iii)  Adhering to the demands of part 3 of this get would usually be inconsistent with statutes, regulations, Government Orders, or Presidential Memoranda.
     (b)  To the extent permitted by law and constant with national security and government department confidentiality passions, every single company shall publish, on a centralized public web-site, descriptions of the exceptions it has granted underneath this part, and be certain that the contractor notifies influenced personnel and their collective bargaining reps, if any, in composing of the agency’s dedication to grant an exception.
     (c)  On a quarterly foundation, every agency shall report to the Business of Administration and Spending budget descriptions of the exceptions granted under this portion. 

Sec. 7.  Regulations and Implementation.  (a)  The Secretary of Labor (Secretary) shall, to the extent constant with law, issue final restrictions in 180 days of the date of this order to put into practice the requirements of this buy, other than people specified in sections 6(b) and (c) of this order.  
     (b)  Within 60 times of the Secretary issuing remaining laws, the Federal Acquisition Regulatory Council (Significantly Council), to the extent steady with law, shall amend the Federal Acquisition Regulation to supply for inclusion in Federal procurement solicitations and contracts issue to this order the clause explained in section 3 of this order.
     (c)  The Director of the Place of work of Administration and Spending budget shall, to the extent consistent with regulation, situation steerage to employ part 6(c) of this buy.

Sec. 8.  Enforcement.  (a)  The Secretary shall have the authority to examine opportunity violations of, and acquire compliance with, this purchase.  In this sort of proceedings, the Secretary shall have the authority to difficulty ultimate orders prescribing correct sanctions and remedies, such as, but not constrained to, orders requiring work and payment of wages misplaced.  The Secretary may also provide that, if a contractor or subcontractor has unsuccessful to comply with any purchase of the Secretary or has fully commited willful violations of this purchase or the rules issued pursuant thereto, the contractor or subcontractor, and its accountable officers, and any agency in which the contractor or subcontractor has a significant interest, may be ineligible to be awarded any agreement of the United States for a time period of up to 3 years.  Neither an order for debarment of any contractor or subcontractor from even more Federal Government contracts less than this section nor the inclusion of a contractor or subcontractor on a released record of noncomplying contractors shall be carried out without having affording the contractor or subcontractor an possibility to current information and argument in opposition to the proposed debarment or inclusion on the listing.
     (b)  This order generates no rights underneath the Contract Disputes Act, 41 U.S.C. 7101 et seq., and disputes relating to the necessities of the agreement clause prescribed by section 3 of this purchase, to the extent permitted by legislation, shall be disposed of only as delivered by the Secretary in rules issued below this purchase.

Sec. 9.  Revocation.  Executive Get 13897 of October 31, 2019 (Strengthening Federal Contractor Functions by Revoking Govt Get 13495), is revoked.  Government Order 13495 of January 30, 2009 (Nondisplacement of Qualified Employees Under Company Contracts), stays revoked.

Sec. 10.  Severability.  If any provision of this order, or the software of any provision of this purchase to any man or woman or circumstance, is held to be invalid, the remainder of this order and its software to any other person or circumstance shall not be impacted therefore.

Sec. 11.  Efficient Day.  This purchase shall develop into efficient quickly and shall utilize to solicitations issued on or soon after the efficient date of the ultimate rules issued by the Far Council less than segment 7 of this buy.  For solicitations issued between the date of this buy and the date of the motion taken by the Considerably Council below segment 7 of this buy, or solicitations that have previously been issued and are excellent as of the date of this order, companies are strongly encouraged, to the extent permitted by regulation, to involve in the related solicitation the contract clause explained in section 3 of this purchase.

Sec. 12.  Common Provisions.  (a)  Nothing in this order shall be construed to impair or if not have an impact on:
          (i)   the authority granted by law to an executive department or agency, or the head thereof or
          (ii)  the capabilities of the Director of the Business of Management and Spending budget relating to budgetary, administrative, or legislative proposals.
     (b)  This buy shall be implemented consistent with relevant law and topic to the availability of appropriations.
     (c)  This order is not meant to, and does not, generate any ideal or advantage, substantive or procedural, enforceable at law or in equity by any celebration against the United States, its departments, agencies, or entities, its officers, workers, or agents, or any other individual.

                              

JOSEPH R. BIDEN JR.  

THE WHITE Home,
    November 18, 2021.