[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 33953-33957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16619]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 17, 22, 36, and 52
[FAR Case 2009-005; Docket 2009-0024; Sequence 1]
RIN 9000-AL31
Federal Acquisition Regulation; FAR Case 2009-005, Use of Project
Labor Agreements for Federal Construction Projects
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement Executive Order
(E.O.) 13502, Use of Project Labor Agreements for Federal Construction
Projects. The new E.O. encourages Federal departments and agencies to
consider requiring the use of project labor agreements for Federal
construction projects where the total cost to the Government is more
than $25 million in order to promote economy and efficiency in Federal
procurement.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before August 13, 2009 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2009-005 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-005'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2009-
005. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2009-005'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2009-
005 in all
[[Page 33954]]
correspondence related to this case. All comments received will be
posted without change to http://www.regulations.gov, including any
personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2009-
005.
SUPPLEMENTARY INFORMATION:
A. Background
On February 6, 2009, the President issued E.O. 13502 which
encourages executive agencies to consider requiring the use of project
labor agreements in connection with large scale construction projects
in order to promote economy and efficiency in Federal procurement. The
E.O. encourages executive departments and agencies to consider the use
of project labor agreements for construction projects where the total
cost to the Government is valued at $25 million or more and permits
agencies on a project-by-project basis to require the use of a project
labor agreement where certain criteria would be met.
The term ``project labor agreement'' means a pre-hire collective
bargaining agreement with one or more labor organizations that
establishes the terms and conditions of employment for a specific
construction project and is an agreement described in 29 U.S.C. 158(f).
The E.O. describes how project labor agreements may help agencies
manage workforce challenges that arise in connection with large-scale
construction projects. For example, large-scale construction projects
typically involve multiple employers at a single location.
The E.O. explains that a ``lack of coordination among various
employers, or uncertainties about the terms and conditions of
employment of various groups of workers, can create friction and
disputes in the absence of an agreed-upon resolution and mechanism''.
The use of project labor agreements may ``prevent these problems from
developing by providing structure and stability to large-scale
construction projects thereby promoting the efficient and expeditious
completion of Federal construction contracts.'' A project labor
agreement may help an agency manage these problems by providing an
agreed-upon resolution mechanism that promotes the efficient and
expeditious completion of Federal construction projects.
In accordance with E.O. 13502, this proposed rule amends the FAR
to--
Provide a new FAR Subpart 22.5, Use of Project Labor
Agreements for Federal Construction Projects.
Add a new provision at 52.222-XX, Notice of Requirement
for Project Labor Agreement, to be included in solicitations where the
agency has exercised its discretion to require a project labor
agreement as prescribed at FAR 22.505(a).
Add a new clause 52.222-YY, Project Labor Agreement, to be
included in contracts in accordance with FAR 22.505(b).
The Councils invite comment on the process, in which the
solicitation incorporates the provision providing for submission of the
project labor agreement prior to the contract award (i.e., should
agencies require this from each offeror as part of its bid or only from
an apparent successful offeror).
The Councils are also considering factors for the contracting
officer to consider, on a project-by-project basis, in determining
whether use of a project labor agreement will be in the best interest
of the Government. The Councils welcome public comment on the factors
that should be considered, such as the difficulty of coordinating
multiple contracts in the absence of a project labor agreement, the
importance of timely project completion, etc.
The Director of the Office of Management and Budget (OMB) is
working with the Secretary of Labor and other officials, to provide
recommendations to the President on whether to broaden the application
of project labor agreements on both construction projects awarded under
Federal contracts and construction projects receiving Federal financial
assistance, to promote the economical, efficient, and timely completion
of such projects.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rationale for this determination is based on the
discretionary nature of the regulation being promulgated and the fact
that the application of the rule is only in connection with large scale
construction projects over $25 million (those that would likely impact
large businesses). Therefore, an Initial Regulatory Flexibility
Analysis has not been performed. The Councils will consider comments
from small entities concerning the affected FAR Parts 2, 17, 22, 36,
and 52, in accordance with 5 U.S.C. 610. Interested parties must submit
such comments separately and should cite 5 U.S.C. 601, et seq.; (FAR
case 2009-005), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
addresses the collection of information by the Federal government from
individuals, small businesses and state and local governments and seeks
to minimize the burdens such information collection requirements might
impose. A collection of information includes providing answers to
identical questions posed to, or identical reporting or record-keeping
requirements imposed on ten or more persons, other than agencies,
instrumentalities, or employees of the United States. In accordance
with the requirements of the Paperwork Reduction Act, agencies may not
conduct or sponsor, and the respondent is not required to respond to,
an information collection unless it displays a currently valid Office
of Management and Budget (OMB) control number or the number appears in
the Code of Federal Regulations (see FAR 1.106).
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat will submit a request for
approval of a new information collection requirement concerning FAR
Case 2009-005 to the OMB under 44 U.S.C. Chapter 35, et seq.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Councils solicit comments
concerning: whether these information collection requirements are
necessary for the Government to properly perform its functions,
including whether the information has practical utility; the accuracy
of the estimates of the burden of the information collection
requirements; the quality, utility, and clarity of the information to
be collected; and whether the burden of collecting information on those
who are to respond, including through the use of automated collection
techniques or other forms of information technology, may be minimized.
The rule will apply to large-scale construction projects where the
cost to the Government is $25 million or more and where agencies have
determined that use of a project labor agreement, in accordance with
requirements prescribed by this rule, will advance the
[[Page 33955]]
Government's interest in achieving economy and efficiency in the
resulting procurement. Most prime contractors for such projects are
large business concerns. We estimate the annual total burden hours as
follows:
Based on Fiscal Year 2008 data regarding the types of contracts to
which this information collection applies, it is estimated that there
are approximately 300 large-scale construction contracts (including
Architectural and Engineering contracts) exceeding $25 million that
could be subject to an agency determination for use of project labor
agreements. Based on advice of labor advisors, approximately 10 percent
of these types of projects may be deemed appropriate for a project
labor agreement. Therefore, it is estimated the information collection
requirement would apply to approximately 30 large-scale construction
contracts per year. Each contract would require one project labor
agreement submission prior to or after award; therefore, the estimated
number of annual respondents is 30. Project labor agreements are often
negotiated in advance of the solicitation phase for a procurement, as
the large-scale projects are defined. The estimated time for reporting
of this information is 1 hour to cover copying and submitting the
agreement to the Government.
We estimate the total annual public cost burden for these elements
to be $900, based on the following:
Respondents.................................................... 30
Responses/respondent........................................... x 1
--------
Responses...................................................... 30
Hours per response............................................. x 1
--------
Total hours................................................ 30
Cost per hour.................................................. x $30
--------
Total annual cost to public................................ $900
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than August 13, 2009 to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room
4041, Washington, DC 20405.
Public comments are particularly invited on: Whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the justification from the General
Services Administration, Regulatory Secretariat (VPR), Room 4041,
Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control
Number 9000-00XX, Use of Project Labor Agreements for Federal
Construction Projects, in all correspondence.
List of Subjects in 48 CFR Parts 2, 17, 22, 36, and 52
Government procurement.
Dated: July 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, the Councils propose amending 48 CFR parts 2, 17, 22,
36, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 17, 22, 36, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2.101 [Amended]
2. Amend section 2.101(b)(2) in the third sentence in the
definition ``Construction'' by removing the words ``personal property''
and adding ``personal property (except that for use in Subpart 22.5,
see the definition at 22.502).''
PART 17--SPECIAL CONTRACTING METHODS
3. In section 17.603 revise paragraph (c) to read as follows:
17.603 Limitations.
* * * * *
(c) For use of project labor agreements, see Subpart 22.5.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
4. In section 22.101-1 revise paragraph (b)(2) to read as follows:
* * * * *
(b)(1) * * * *
(2) For use of project labor agreements, see Subpart 22.5.
5. Add Subpart 22.5 to Part 22 to read as follows:
Subpart 22.5 Use of Project Labor Agreements for Federal
Construction Projects.
Sec.
22.501 Scope of subpart.
22.502 Definitions.
22.503 Policy.
22.504 General requirements for project labor agreements.
22.505 Solicitation provision and contract clause.1
22.501 Scope of subpart.
This subpart prescribes policies and procedures to implement
Executive Order 13502, February 6, 2009.
22.502 Definitions.
As used in this subpart--
Construction means construction, rehabilitation, alteration,
conversion, extension, repair, or improvement of buildings, highways,
or other real property.
Labor organization means a labor organization as defined in 29
U.S.C. 152(5).
Large-scale construction project means a construction project,
including all contracts associated with the project, where the total
cost to the Federal Government is $25 million or more.
Project labor agreement means a pre-hire collective bargaining
agreement with one or more labor organizations that establishes the
terms and conditions of employment for a specific construction project
and is an agreement described in 29 U.S.C. 158(f).
22.503 Policy.
Project labor agreements are a tool that agencies may use to
promote economy and efficiency in Federal procurement. Pursuant to
Executive Order 13502, agencies are encouraged to consider requiring
the use of project labor agreements in connection with large-scale
construction projects.
22.504 General requirements for project labor agreements.
(a)(1) Agencies may require the use of project labor agreements
where use of such agreements will--
(i) Advance the Federal Government's interest in achieving economy
and efficiency in Federal procurement, producing labor-management
stability, and ensuring compliance with laws and regulations governing
safety and health, equal employment opportunity, labor and employment
standards, and other matters; and,
(ii) Be consistent with law.
(2) If an agency determines that use of a project labor agreement
will meet the standards set forth in paragraphs (a)(1)(i) and (ii) of
this section, the agency has complete discretion--
[[Page 33956]]
(i) To require that every contractor and subcontractor on the
project agree, for that project, to negotiate or become a party to a
project labor agreement with one or more appropriate labor
organizations; or
(ii) To decide not to require the use of a project labor agreement.
(b) Project labor agreements established under this subpart shall--
(1) Bind all contractors and subcontractors on the construction
project to comply with the project labor agreement;
(2) Allow all contractors and subcontractors to compete for
contracts and subcontracts without regard to whether they are otherwise
parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar job
disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the term of the project
labor agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity, quality
of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
22.505 Solicitation provision and contract clause.
(a)(1) For acquisition of large-scale construction projects, if the
agency makes a determination pursuant to this subpart that a project
labor agreement will be required, the contracting officer shall insert
the provision at 52.222-XX, Notice of Requirement for Project Labor
Agreement, in all solicitations associated with the project.
(2) If an agency allows submission of the project labor agreement
after contract award, the contracting officer shall use the provision
with its Alternate I in accordance with agency procedures.
(b)(1) For acquisition of large-scale construction projects, if the
agency makes a determination pursuant to this subpart that a project
labor agreement will be required, the contracting officer shall insert
the clause at 52.222-YY, Project Labor Agreement in all contracts
associated with the project.
(2) If an agency allows submission of the project labor agreement
after contract award, the contracting officer shall use the clause with
its Alternate I in accordance with agency procedures.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
6. In section 36.202 revise paragraph (d) to read as follows:
36.202 Specifications.
* * * * *
(d) For requirements on the use of project labor agreements for
Federal construction projects, see part 22, Subpart 22.5 of this
chapter.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Add section 52.222-XX to read as follows:
52.222-XX Notice of Requirement for Project Labor Agreement.
As prescribed in 22.505(a)(1), insert the following provision:
NOTICE OF REQUIREMENT FOR PROJECT LABOR AGREEMENT (DATE)
(a) Definitions. Labor organization and project labor agreement,
as used in this provision, are defined in the clause of this
solicitation entitled Project Labor Agreement.
(b) Consistent with applicable law, the apparent successful
offeror will be required to execute a project labor agreement with
one or more appropriate labor organizations for the term of the
resulting construction contract.
(c) Any project labor agreement reached pursuant to this
provision shall--
(1) Bind the offeror and all subcontractors on the construction
project to comply with the project labor agreement;
(2) Allow the offeror and all subcontractors to compete for
contracts and subcontracts without regard to whether they are
otherwise parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar
job disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity,
quality of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
(d) Any project labor agreement reached pursuant to this
provision does not change the terms of this contract or provide for
any price adjustment by the Government.
(e) The Government will not participate in the negotiations of
any project labor agreement.
(f) The apparent successful offeror shall submit to the
Contracting Officer a copy of the project labor agreement--reached
pursuant to this provision prior to contract award.
(End of Provision)
Alternate I (DATE) As prescribed in 22.505(a)(2), substitute the
following paragraph (b) in lieu of paragraphs (b) through (f) of the
basic clause:
(b) Consistent with applicable law, the contractor agrees to
bargain in good faith to a project labor agreement with one or more
appropriate labor organizations for the term of the resulting
construction contract.
8. Add section 52.222-YY to read as follows:
52.222-YY Project Labor Agreement.
As prescribed in 22.505(b)(1), insert the following clause:
PROJECT LABOR AGREEMENT (DATE)
(a) Definitions. As used in this clause--
Labor organization means a labor organization as defined in 29
U.S.C. 152(5).
Project labor agreement means a pre-hire collective bargaining
agreement with one or more labor organizations that establishes the
terms and conditions of employment for a specific construction
project and is an agreement described in 29 U.S.C. 158(f).
(b) The Contractor shall maintain in a current status throughout
the life of the contract the project labor agreement entered into
prior to the award of this contract in accordance with solicitation
provision 52.222-XX, Notice of Requirement for Project Labor
Agreement.
(c) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (c), in all subcontracts.
(End of Clause)
Alternate I (Date). As prescribed in 22.505(b)(2), substitute the
following paragraphs (b) through (g) for paragraphs (b) and (c) of the
basic clause:
(b) Consistent with applicable law, the contractor agrees to
bargain in good faith to a project labor agreement with one or more
appropriate labor organizations for the term of this construction
contract. The contractor shall submit an executed copy of the
project labor agreement to the Contracting Officer.
(c) Any project labor agreement reached pursuant to this clause
shall--
(1) Bind the Contractor and all subcontractors on the
construction project to comply with the project labor agreement;
(2) Allow the Contractor and all subcontractors to compete for
contracts and subcontracts without regard to whether they are
otherwise parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar
job disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity,
quality of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
(d) Any project labor agreement reached pursuant to this
provision does not change the terms of this contract or provide for
any price adjustment by the Government.
(e) The Government will not participate in the negotiations of
any project labor agreement.
[[Page 33957]]
(f) The Contractor shall maintain in a current status throughout
the life of the contract the project labor agreement entered into
pursuant to this clause.
(g) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (g), in all subcontracts.
(End of Provision)
[FR Doc. E9-16619 Filed 7-10-09; 11:15 am]
BILLING CODE 6820-EP-P