On May 3, 2012, the Department of Defense (“DoD”), the General Services Administration (“GSA”), and the National Aeronautics and Space Administration (“NASA”) issued a proposed rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts (“EO 13495”) and the Department of Labor’s (“DOL’s”) final regulations implementing EO 13495. EO 13495 was initially signed by President Obama on January 30, 2009. It requires federal contractors and subcontractors that are successors to certain government contracts to offer employment on a “first right of refusal” to employees (not including managerial and supervisory employees) employed under the predecessor contract, whose employment would otherwise be terminated at the end of the predecessor contract.
As we previously reported, on August 29, 2011, the DOL issued final regulations that implemented EO 13495 and clarified many of the terms in that Executive Order. The proposed rule issued by DoD, GSA, and NASA would amend the Federal Acquisition Regulations (“FAR”) to add subpart 22.12 and a new clause at FAR 52.222-XX to require service contractors and their subcontractors under successor contracts to offer employees of the predecessor contractor a right of first refusal of employment for all positions for which they are qualified. The proposed rule contemplates amending the FAR clause so that it is virtually identical to DOL’s final regulations, except it will not include provisions concerning the investigative methods, available reviews, or enforcement mechanisms established by the DOL.
Comments on the proposed rule are due by July 2, 2012.