On May 15, 2012, we told you about the interplay between the Department of Labor’s (“DOL”) final rule on the nondisplacement of qualified workers under service contracts and the proposed FAR rule on the same subject matter.1 Now the Professional Service Council (“PSC”), a national trade association, has issued a call for the Federal Acquisition Regulatory Council to clarify how the proposed FAR rule aligns with the DOL rule.
The DOL’s rule, which was introduced before the proposed FAR rule, requires contractors, and its subcontractors, who win a follow-on services contract for performance of the same or similar services at the same location, to offer those employees employed under the predecessor contract (other than managerial and supervisory employees) the right of first refusal of employment under the successor contract in positions for which they are qualified, if their employment would otherwise be terminated as a result of the award of a successor contract to another company. The proposed FAR rule requirements adopt, in part, the requirements set forth in the DOL’s final rule.
Although there are some similarities among the two rules, as pointed out by the PSC, the DOL rule includes many requirements that are not contained in the proposed FAR rule. For instance, the DOL rule includes specific provisions pertaining to the use of suspension and debarment, as well as information relative to other enforcement mechanisms, investigation techniques and review methods, while the proposed FAR rule does not. As a result, the PSC is calling for the FAR Council to clarify the proposed rule to explicitly state whether or not it will incorporate all of the provisions in the DOL rule.
The PSC has also requested that both rules apply a requirement that the mandatory offer of employment need only be made to predecessor contractor employees who worked on the predecessor contract for at least six months; recommended that the FAR rule apply only to new contracts (and not retroactively as currently contemplated by the FAR Council); and that the FAR rule provide the contracting officer with the authority to waive the requirements of the rule.
Final comments on the proposed FAR rule were due July 2, 2012, so we should soon learn whether that FAR Council was amenable to any of the PSC’s recommendations.