IMPLEMENTED IN THE FAR (FAC 2005-47)
Procurement Information Circular
June 21, 2010
CLASS DEVIATION TO NOTIFICATION OF EMPLOYEES RIGHTS UNDER FEDERAL LABOR LAWS
PURPOSE: To provide a class deviation that implements Executive Order 13496 – Notification of Employee Rights under Federal Labor Laws, pending implementation of an interim rule in the Federal Acquisition Regulations.
BACKGROUND: Executive Order 13496 requires contractors and subcontractors to display a notice that informs employees of their rights under Federal labor laws, including the National Labor Relations Act, 29 U.S.C. 151, et seq. Basically, the required notice lists employees’ rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board who enforces those rights with questions or complaints. The Executive Order applies to contracts and subcontracts resulting from a solicitation issued on or after the effective date of the implementation of a rule by the Secretary of the Department of Labor. The Department of Labor, Office of Labor Management Standards (OLMS) issued a final rule implementing Executive Order 13496, codified at 29 CFR Part 471, which was published on May 20, 2010 with an effective date of June 21, 2010. As a result of this publication, it is necessary to issue this class deviation so that contractors can comply with the requirements of Executive Order 13496 and the Department of Labor’s implementing regulations. Once an interim rule is published in the Federal Register to effect this change in FAR 22, this deviation will no longer be necessary.
GUIDANCE: This class deviation is effective immediately and Contracting Officers are required to insert the deviated FAR Clause 52.222-99 included in the Enclosure which shall be inserted in all solicitations and resultant contracts issued after the effective date of this PIC, except for the following acquisitions:
· Acquisitions valued below the simplified acquisitions threshold.
· Contracts or subcontracts for work performed exclusively outside the territorial United
· Certain acquisitions provided an exemption granted by the Secretary of Labor, Office of Labor Management Standards (e.g. special circumstances require an exemption to serve the national interest)
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until implemented in FAR, or otherwise rescinded.
HEADQUARTERS CONTACT: Marilyn J. Seppi, Contract Management Division, (202) 358-0447, e-mail: Marilyn.Seppifirstname.lastname@example.org.
/s/ Sheryl Goddard for
William P. McNally
Assistant Administrator for
Class Deviation for Notification of Employee Rights under the National Labor Relations Act
(a) Insert the following Clause 52.222-99, Notification of Employee Rights under the National Labor Relations Act (DEVIATION), in all solicitations and contracts issued after the date of this deviation, except—
(1) Acquisitions valued below the simplified acquisition threshold. For indefinite quantity contracts, include the clause only if the value of orders in any calendar year of the contract is expected to exceed the simplified acquisition threshold;
(2) For work performed exclusively outside the territorial United States; or
(3) Certain acquisitions provided an exemption granted by the Secretary of Labor, Office of Labor Management Standards. If the Secretary finds that the requirements of the Executive Order impair the ability of the Government to procure goods and services on an economical and efficient basis or if special circumstances require an exemption to serve the national interest, the Secretary may exempt a contracting department or agency, or groups of departments or agencies, from the requirements of any or all of the provisions of this Executive order with respect to a particular contract or subcontract, or any class of contracts or subcontracts, including the requirement to include the clause at 52.222-99, or parts of that clause in contracts.
(b) This clause is applicable to the acquisition of commercial items, including commercially available off-the-shelf items.
(c) A contracting agency may modify the clause at 52.222-99, if necessary, to reflect an exemption granted by the Secretary of Labor. Requests for exemption may be submitted in accordance with Department of Labor regulations at 29 CFR 471.3.
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NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT (DEVIATION)
(a) During the term of this contract, the Contractor shall post a notice, of such size and in such form, and containing such content as prescribed by the Secretary of Labor, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically, in the languages employees speak, in accordance with 29 CFR 471.2 (d) and (f).
(1) Physical posting of the employee notice shall be in conspicuous places in and about the Contractor’s plants and offices so that the notice is prominent and readily seen by employees who are covered by the National Labor Relation Act and engage in activities related to the performance of the contract.
(2) If the Contractor customarily posts notices to employees electronically, then the Contractor shall also post the required notice electronically by displaying prominently, on any website that is maintained by the Contractor and is customarily used for notices to employees about terms and conditions of employment, a link to the Department of Labor’s website that contains the full text of the poster. The link to the Department’s website, as referenced in (b)(3) of this section, must read, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.”
(b) This required notice, printed by the Department of Labor, may be–
(1) Obtained from the Division of Interpretations and
Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200
Constitution Avenue, NW, Room N-5609, Washington, DC 20210, (202) 693-0123, or
from any field office of the Office of Labor-Management Standards or Office of
Federal Contract Compliance Programs;
(2) Provided by the Federal contracting agency, if requested];
(3) Downloaded from the Office of Labor-Management Standards web site at www.dol.gov/olms/regs/compliance/EO13496; or
(4) Reproduced and used [as] exact duplicate copies of the Department of Labor’s official poster.
(c) The required text of the Employee Notification referred to in this clause is located at Appendix A, Subpart A, 29 CFR Part 471.
(d) The Contractor shall comply with all provisions of the Employee Notice and related rules, regulations, and orders of the Secretary of Labor.
(e) In the event that the Contractor does not comply with the requirements set forth in paragraphs (a) through (d) of this clause, this contract may be terminated or suspended in whole or in part, and the Contractor may be suspended or debarred in accordance with 29 CFR 471.14 and FAR Subpart 9.4. Such other sanctions or remedies may be imposed as are provided by 29 CFR Part 471, which implements E.O. 13496 or as otherwise provided by law.
(f) Subcontracts. (1) The Contractor shall include the substance of this clause, including this paragraph (f), in every subcontract that exceeds $10,000 and will be performed wholly or partially in the United States, unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 3 of Executive Order 13496 of January 30, 2009, so that such provisions will be binding upon each subcontractor.
(2) The Contractor is not permitted to procure supplies or services in a way designed to avoid the applicability of Executive Order 13496 or this subpart.
(3) The Contractor shall take such action with respect to any such subcontract as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non compliance.
(4) However, if the Contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the Contractor may request the United States, through the Secretary of Labor, to enter into such litigation to protect the interests of the United States.
(End of clause)