Executive Order | The Contracting Education Academy

June 9, 2020 By cs

FAR’s ‘nondisplacement of qualified workers’ clause is finally getting the boot

Federal agencies will be issuing a final rule that will remove the infamous nondisplacement of qualified workers clause from the FAR.

The final rule went into effect June 5, 2020. Let’s take a look.

The new rule, issued May 6, 2020, implements Executive Order 13897, “Improving Federal Contractor Operations by Revoking Executive Order 13495” (published in the Federal Register on November 5, 2019, at 84 FR 59709), which Koprince Law LLC previously blogged about.

The prior Executive Order, through FAR 22.1207, implemented the nondisplacement of qualified workers requirement, which is currently found at FAR 52.222-17. This FAR clause applied to service contractors and their subcontractors and required that:

The Contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer those service employees employed 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 service employees were hired, a right of first refusal of employment under this contract in positions for which the service employees are qualified.

Though this requirement was implemented with good intentions, such as promoting the continuity of knowledge and experience while reducing unemployment during contractor transitions, it also placed substantial burdens on contractors pursuing and performing federal contracts.

Keep reading this article at: https://smallgovcon.com/statutes-and-regulations/the-fars-nondisplacement-of-qualified-workers-clause-is-finally-getting-the-boot/

October 18, 2019 By cs

Executive orders issued to combat ‘bureaucratic abuse’ by ‘rogue agencies’

President Donald Trump signed a pair of executive orders last week that the White House said were meant to curtail what it views as “abuses” of American citizens by federal agencies.

The orders deal with what the administration said is a federal bureaucracy that is “running roughshod” over individuals’ and companies’ legal and constitutional rights: they demand that agencies increase transparency in their regulatory and enforcement processes and reduce what the White House said is an overreliance on informal rulemaking.

Both executive orders address the Administrative Procedure Act. The administration said agencies too often use informal guidance as a work-around to the notice and comment processes the APA demands. So going forward, agencies will have to treat all guidance documents they issue, or have published before, as non-legally-binding.

Until now, the White House said, agencies have sometimes used guidance as a stand-in for formal regulations.

Keep reading this article at: https://federalnewsnetwork.com/agency-oversight/2019/10/trump-administration-issues-orders-to-combat-bureaucratic-abuse-by-rogue-agencies/

February 5, 2019 By AMK

Trump expands ‘Buy American’ requirements to agency procurements

President Trump on Thursday, Jan. 31st added details to his earlier “Buy American” push with a new executive order instructing all agencies to “maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards.”

The directive to agency heads builds on an April 2017 “Buy American and Hire American” executive order issued at a time when the Trump administration was expected to press for a major boost in infrastructure construction, which has yet to materialize.

“It is the policy of the executive branch to maximize, consistent with law, the use of goods, products, and materials produced in the United States, in federal procurements and through the terms and conditions of federal financial assistance awards,” the order says, changing the previous term “federal grants” to “federal financial assistance.”

Within 90 days, the head of each agency administering a covered program shall “encourage,” consistent with the law, recipients of federal financial assistance to use, “to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in every contract, subcontract, purchase order, or sub‑award that is chargeable against such federal financial assistance award.”

Keep reading this article at: https://www.govexec.com/contracting/2019/02/trump-expands-buy-american-requirements-agency-procurements/154594/

April 25, 2018 By AMK

President revokes ‘Fair Pay And Safe Workplaces’ EOs

President Donald J. Trump has loosened the federal government’s grip on businesses looking to secure federal contracts.

On March 27, 2017, the president signed Executive Order 13782 revoking executive orders by President Barak Obama that had regulated the conduct of federal contractors. President Trump’s EO 13782 expressly revokes Obama’s EO 13673, also known as the “Fair Pay and Safe Workplaces” order, as well as subsequent amendments, set forth in Section 3 of EOs 13683 and 13738.

President Obama issued EO 13673 on July 31, 2014, with the stated purpose of ensuring that federal contractors comply with applicable labor laws. EO 13673 contained three major provisions that separately addressed (i) disclosure of compliance with labor laws, (ii) paycheck transparency and (iii) arbitration clauses for claims of sexual harassment, sexual assault, and discrimination.

More specifically, EO 13673 required federal agencies to include provisions in their solicitations to potential service providers directing them to disclose “whether there has been any administrative merits determination, arbitral award or decision, or civil judgment” for violations of certain labor laws issued against them within the preceding three years.
EO 13673 also required all agency solicitations and contracts to include that service providers must issue to individuals performing work under the contract a document containing information on “that individual’s hours worked, overtime hours, pay and any additions made to or deductions made from pay.”
EO 13673 further required agencies to include in their solicitations and contracts a provision that service providers are prohibited from including in their contracts with employees clauses requiring the arbitration of claims arising under Title VII of the Civil Rights Act of 1964, or sounding in any tort relating to or arising out of sexual assault or harassment.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=692996

February 27, 2018 By AMK

Buy American, Hire American: Will it impact contractors’ ability to store data offshore?

Buy American and hire American.

The concept is easy, but the implementation can be far more complicated, particularly in the current government contracting world where waivers to those requirements have become common.

In an attempt to strengthen the commitment to buying American and hiring American, on January 26, 2018, a bipartisan group of ten Senators sent a letter to President Trump urging him to “keep the promises” that he had made in April 2017 to buy American and hire American. The letter follows Senators Rob Portman (R-OH), Sherrod Brown (D-OH), Lindsey Graham (R-SC), and Chris Murphy’s (D-CT) introduction of the bipartisan BuyAmerican.gov Act of 2018 on January 9, 2018.

This new legislation seems to be an effort to codify President Trump’s April 18, 2017, Buy American and Hire American Executive Order (the Executive Order), and slow what the BuyAmerican.gov Act Press Release calls the “excessive number of waivers” to the Buy American laws. Since President Trump signed the Executive Order, much has been written about the potential effects of that Executive Order. However, the potential impacts on government contractors who maintain or store data relating to their performance of federal government contracts have been largely disregarded.

To date, nothing in the Federal Acquisition Regulation (FAR) prohibits contractors from storing contract-related data offshore — i.e., outside the United States. Some federal agencies have included an obligation for bidders to disclose their intentions regarding data storage if they are successful and awarded a contract, but these efforts have not been consistent across federal agencies. States have been the most aggressive in terms of policing a contractor’s ability to store state contract data offshore. Seven states have statutes or regulations that prohibit contractors from storing state contract data outside the United States. Multiple other states have regulations or include provisions in their solicitations that require bidders on state contracts to disclose where the contractor intends to store the state’s data.

Keep reading this article at: https://www.jdsupra.com/legalnews/buy-american-hire-american-will-it-19180/

Federal agencies will be issuing a final rule that will remove the infamous nondisplacement of qualified workers clause from the FAR.

President Donald Trump signed a pair of executive orders last week that the White House said were meant to curtail what it views as “abuses” of American citizens by federal agencies.

President Donald J. Trump has loosened the federal government’s grip on businesses looking to secure federal contracts.

Buy American and hire American.

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