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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: March 7, 2002

SUBJECT: Federal Acquisition Circular (FAC) 2001-05, Suspension of Implementation of Executive Order 13202 Prohibiting "Project Labor Agreements"

SOURCE: Federal Register, March 7, 2002, Vol. 67, No. 45, page 10527

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Suspension of Interim Rule

SYNOPSIS: The Federal Acquisition Regulatory Council is issuing FAC 2001-05 to suspend ("stay") paragraph (d) of FAR 36.202, Specifications, which was added as an interim rule by FAC 97-26 to implement Executive Order (EO) 13202, Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects.

EDITOR'S NOTE: For more on EO 13202, see the February 22, 2001, FEDERAL CONTRACTS DISPATCH "Executive Order 13202, Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally-Funded Construction Projects."

For more on an amendment of EO 13202, see the April 11, 2001, FEDERAL CONTRACTS DISPATCH "Executive Order 13208, Amendment to Executive Order 13202, Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally-Funded Construction Projects."

For more on FAC 97-26, see the May 16, 2001, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-26, Miscellaneous Amendments."

DATES: This suspension of FAR 36.202(d) is effective March 7, 2002. Comments on the suspension must be submitted no later than May 6, 2002, to be considered in the formulation of a rule concerning the suspension and the length of the suspension.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405; or by e-mail to: farcase.2001-016stay@gsa.gov. Cite FAC 2001-05, FAR case 2001-016 (stay), in all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: Linda Nelson at 202-501-1900.

For general information, contact the FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, 202-501-4755.

SUPPLEMENTAL INFORMATION: On February 17, 2001, President Bush signed EO 13202, revoking EO 12836, which was issued by President Clinton and encouraged the use of "project labor agreements" on federally-funded construction projects (project labor agreements are requirements that a contractor, as a condition of award of a particular contract, affiliate with a labor organization).

EO 13202 was implemented as an interim rule by Item II of FAC 97-26. The key provision of the interim rule was the addition of FAR 36.202(d), which states:

(d) In accordance with Executive Order 13202, of February 17, 2001, Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects, as amended on April 6, 2001 --
     
  1. The Government, or any construction manager acting on behalf of the Government, must not --

    1. Require or prohibit offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations (as defined in 42 U.S.C. 2000e(d)) on the same or other related construction projects; or

    2. Otherwise discriminate against offerors, contractors, or subcontractors for becoming, refusing to become, or remaining signatories or otherwise adhering to agreements with one or more labor organizations, on the same or other related construction projects.

  2. Nothing in this paragraph prohibits offerors, contractors, or subcontractors from voluntarily entering into project labor agreements.

  3. The head of the agency may exempt a construction project from this policy if the agency head finds that, as of February 17, 2001 --

    1. The agency or a construction manager acting on behalf of the Government had issued or was a party to bid specifications, project agreements, agreements with one or more labor organizations, or other controlling documents with respect to that particular project, which contained any of the requirements or prohibitions in paragraph (d)(1) of this section; and

    2. One or more construction contracts subject to such requirements or prohibitions had been awarded.

  4. The head of the agency may exempt a particular project, contract, or subcontract from this policy upon a finding that special circumstances require an exemption in order to avert an imminent threat to public health or safety, or to serve the national security. A finding of "special circumstances" may not be based on the possibility or presence of a labor dispute concerning the use of contractors or subcontractors who are nonsignatories to, or otherwise do not adhere to, agreements with one or more labor organizations, or concerning employees on the project who are not members of or affiliated with a labor organization.

EO 13202 is currently the subject of litigation and is being appealed in the United States Court of Appeals for the District of Columbia Circuit (Building and Construction Trades Department, AFL-CIO v. Allbaugh). Based on guidance received from the Office of Federal Procurement Policy, FAR 36.202(d) is being suspended pending resolution of the litigation. After final resolution of the appeal, a notice will be published regarding the status of FAR 36.202(d).

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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