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July 18, 2022 UPDATE! Nondisplacement Rule For Contractors Coming Back! The Biden Administration just issued a proposal to reinstitute the nondisplacement rule, which requires services contracts that succeed contracts for the same or similar services-as well as solicitations for such contracts-to include a clause offering qualified service employees under the predecessor contract a right of first refusal of employment.
Contractors will be familiar with this rule, which existed during the Obama Administration-albeit with a few differences-and was canceled during the Trump Administration. Contractors should keep in mind the following to help ensure compliance:
Unlike rules under the Obama administrate, the new rule applies to contractors performing work at a different location than the predecessor contractor.
The departing contractor is responsible for providing the contracting officer a list of the names of all service employees employed under the contract and subcontracts within the last month of contract performance. The departing contractor must also provide written notice to service employees of their possible right of first refusal for employment under the successor contract.
The incoming contractor cannot fill any openings for positions subject to the Service Contract Act before first making good faith offers of employment to incumbent employees, although the offer need not be for the same position as the employee had previously held. The incoming contractor also retains the right to determine the number of employees necessary for efficient performance and can hire more or fewer employees than the previous contractor.
The incoming contractor is not required to offer a right of first refusal to an employee where, based on reliable evidence of past performance, the contractor or its subcontractors reasonably believe that there would be just cause to discharge that employee.
Stay tuned for that new clause!
July 21, 2021. Is there a Biden Administration action that reverses this?
On Oct. 31, 2019, a President Trump Executive Order revokes EO 13495 of Jan. 30, 2009, which gave Service Contract Act employees’ Right of First Refusal with a successor employer. This is the Final Rule published in the Federal Register implementing this action.
NOV 19, 2021: See answer in the Reply
July 15, 2021: I am looking for a Biden Administration action that may have reverted policy back to the Obama Administration's policy on Right of First Refusal. If you know where that may be found, please let me know! This is what I can find with a search of the FAR, but it pertains only to Government personnel impacted by a contract award:
Here is the answer: EO published November 18, 2021: Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.
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