NFS part 1822

PART 1822

APPLICATION OF LABOR LAWS

TO GOVERNMENT

ACQUISITIONS

SUBPART 1822.1

BASIC LABOR POLICIES

1822.101 Labor relations.

1822.101-1 General.

(a) NASA contracting officers, in taking any of the actions prescribed or authorized in FAR Part 22 or this Part 1822, shall consult with and get advice from the labor relations advisor or other NASA official assigned the labor relations function at the installation concerned.

(b) NASA officials shall not take any action regarding labor matters involving major policy determinations having a substantial impact on the activities of NASA or other Government agencies without the prior approval of the Director, Industrial Relations Office (Code JL). A full report concerning any labor relations problem, particularly where a labor dispute significantly threatens to affect important NASA procurements, shall be furnished to Code JL in accordance with 1822.101-3.

(c) When a strike that may have an adverse effect on NASA programs is imminent or in progress at a prime contractor's or subcontractor's plant, contracting officers shall --

(1) Advise both the prime contractor and the head of the union local in writing of the expected impact of the strike on NASA programs and, if appropriate, of the actions NASA is considering to protect the Government's interest and prevent delay in the accomplishment of NASA's mission. If the strike is in a subcontractor's plant, the subcontractor may be approached only through the prime contractor;

(2) Explore the possibility of locating other sources for the supplies or services to have been provided by the strike-threatened plant; and

(3) Consider taking the actions set forth at FAR 22.101-4.

1822.101-3 Reporting labor disputes.

Reports of actual or incipient labor-management disputes affecting NASA procurements, operations, or services shall be submitted as specified by the Director, Industrial Relations Office. These reports shall be made as early as possible and shall include immediately available information. Supplemental reports shall be made, as appropriate, to provide full information and cover new developments. Reports shall be sent by the most expeditious means required by the seriousness of the situation. When an immediate critical effect on NASA procurements is probable, the initial report shall be made by telephone and followed by an electronically transmitted written message or a confirming letter. Reports shall describe, but need not be limited to --

(a) The nature of the actual or incipient dispute, including whether a strike, lockout, slow-down, shut-down, or picketing is involved and the degree of emergency presented;

(b) The character, quantity, and importance of the supplies, operations, or services involved, including scheduled performance and delivery dates and the relation of the production involved to the total procurement program;

(c) The identity and location of the parties to the dispute and their representatives, including the approximate number of employees involved;

(d) The need for and availability of alternative facilities to furnish the items involved within the time required;

(e) Any critical items that should be removed from the plant or work site or should continue to be processed there with the consent of the parties to the dispute; and

(f) Recommended action to be taken by NASA.

1822.101-4 Removal of items from contractors' facilities affected by work stoppages.

When the contracting officer determines that it would be in the Government's best interest to remove items or to arrange for shipment of urgently required items as provided in FAR 22.101-4(a)(2), the contracting officer shall first request approval from Code JL and then take such action as is approved.

1822.101-70 Inspection of material during labor disputes.

Despite the existence of a labor dispute, inspection functions at contract plants or sites shall be performed as normally required during contract performance, unless the inspector's safety may be endangered.

1822.101-71 Admission of labor representatives to contract sites.

NASA activities may not prevent the access of labor union representatives to contract sites for the conduct of union business if their activities are compatible with safety and security regulations and performance of the contract work involved.

1822.101-72 Workers Adjustment and Retraining Notification (WARN) Act

(a) The WARN Act (Pub. L. 100-379) provides that employers of 100 or more full-time employees or 100 or more employees who work 4,000 hours in a work week shall give 60 days notice to affected employees prior to a plant closing or mass layoff as defined in the Act. When the required notice is not given, certain wage and benefit protections accrue to affected employees and financial penalties may be assessed against the employer.

(b) The Act may apply to certain NASA contracts (e.g., on-site support service contracts) if the incumbent fails to win on recompetition for the succeeding period or if the contract requirement is discontinued. Some of the costs for noncompliance with the Act could be subject to reimbursement by the Government. Accordingly, the contracting officer shall give a letter notification to on-site support service contractors alerting them to the possible applicability of the WARN Act.

(c) Implementation of the Act requires no action by the Government. NASA employees are not to offer advice to contractor employees or to the management of affected contractors concerning implementation of the Act. Government employees and officials are not covered by the Act.

1822.102 Federal and State labor requirements.

1822.102-70 Suspension or relaxation of State labor standards.

(a) NASA officials shall not initiate applications to State agencies or officials for the suspension or relaxation of State labor standards.

(b) When suspension or relaxation of State labor standards does not conflict with Federal labor laws, contracting officers may support applications of contractors or subcontractors if --

(1) The required products or services are in short supply and failure to meet production schedules for critically needed end items will result unless the standards are suspended or relaxed;

(2) No alternative sources of supply for such products or services are available within the required delivery schedule;

(3) Remedial action (such as recruitment, training, and more effective utilization of labor) is not practicable; and

(4) The granting of the application will not result in impairment of working conditions to the extent that productivity at the facility will be adversely affected.

(c) NASA letters of support will be addressed to the appropriate State agency and will indicate --

(1) The facilities and services affected; and

(2) The extent of suspension or relaxation of the particular State labor standard required to complete the specific work in conformity with the delivery schedule.

1822.103 Overtime.

1822.103-4 Approvals.

The Procurement Officer or designees are authorized to approve overtime premiums at Government expense. If two or more contracting offices have current contracts at a single facility and approval of overtime by one will affect the performance or cost of contracts of another, the approving official shall obtain the concurrence of other appropriate approving officials and seek agreement as to the contracts under which premiums will be approved. If the approving officials do not agree within a reasonable time, a decision shall be obtained through the center's normal management channels. Ordinarily, in the absence of evidence to the contrary, a contracting office may rely on the contractor's statement that approval will not affect performance or payments under any contract of another contracting office. Designations to approve overtime shall be in writing and shall not be delegated under the first level of supervision below the Procurement Officer, except that delegation may be made to the head of a procurement function at geographically remote branch facilities (e.g., Wallops Flight Facility) without power of redelegation.

SUBPART 1822.3

CONTRACT WORK HOURS AND

SAFETY STANDARDS ACT

1822.302 Liquidated damages and overtime pay.

Disposal of funds withheld or collected for liquidated damages shall be in accordance with direction of the Director, Industrial Relations Office (Code JL), who is the agency head's designee relative to liquidated damages under the Contract Work Hours and Safety Standards Act.

Subpart 1822.4--Labor

Standards for Contracts

Involving Construction

1822.403-4 Department of Labor regulations.

For industrial relations actions requiring communication with the Department of Labor, National Headquarters, Washington, DC (including the Administrator, Wage and Hour Division), contracting officers shall provide the appropriate information and supporting documentation to the Industrial Relations Office (Code JL), which shall make all contacts with the Department of Labor on these matters.

1822.404-3 Procedures for requesting wage determinations.

Contracting officers shall submit requests for project wage determinations to Code JL at least 55 days (70 days if possible) before issuing the solicitation.

1822.406-2 Wages, fringe benefits, and overtime.

In implementing FAR 22.406-2(b)(2), the contracting officer shall provide information to the Director, Industrial Relations Office (Code JL), who shall submit the question of cash equivalents to the Department of Labor for final determination.

1822.406-8 Investigations.

The contracting officer is responsible for conducting investigations, as provided by FAR 22.406-8(a), of labor violations relative to contracts under his/her cognizance. The agency head's designee for receiving and processing contracting officer reports of violations is the Director, Industrial Relations Office (Code JL), who, with the concurrence of the Associate General Counsel for Contracts, shall forward reports of violations to the Attorney General in accordance with FAR 22.406-8(d)(2)(iv).

1822.406-9 Withholding from or suspension of contract payments.

Disposal of funds withheld or collected for liquidated damages under the Davis-Bacon Act shall be in accordance with direction of the Director, Industrial Relations Office (Code JL).

1822.406-11 Contract terminations.

Contracting officers shall forward reports of contract or subcontract terminations for violation of labor standards clauses to the Director, Industrial Relations Office (Code JL), who shall submit the reports in accordance with FAR 22.406-11.

1822.406-13 Semiannual enforcement reports.

Procurement Officers shall submit semiannual enforcement data within 20 days after the end of the reporting period specified in FAR 22.406-13 to the Office of Procurement (Attn: Code HK) for consolidation and submission to the Department of Labor. Negative statements are required. The Contract Management Division (Code HK) is the point of contact regarding data to be included in the submissions.

SUBPART 1822.6

WALSH-HEALEY

PUBLIC CONTRACTS ACT

1822.604 Exemptions.

1822.604-2 Regulatory exemptions.

Applications for exemptions from one or more of the Act's stipulations under FAR 22.604-2(c)(1) shall be submitted in writing through the contracting officer, with pertinent data and recommendations

to the Director, Industrial Relations Office (Code JL).

1822.608-4 Award pending final determination.

The Procurement Officer shall approve, with the concurrence of the Director, Industrial Relations Office (Code JL), certifications for immediate award in accordance with FAR 22.608-4(b). The contracting officer shall give written notice of the decision to award through Code JL to the DOL.

Subpart 1822.8--Equal Employement

Opportunity

1822.804 Affirmative action programs.

1822.804-2 Construction.

Each procurement office will maintain and furnish to contracting officers the listing required by FAR 22.804-2(b). The Associate Administrator for Procurement (Code HK) will furnish the listing to be maintained. The current listing is 45 FR 65979 "Goals for Minority Participation in the Construction Industry" (October 3, 1980).

1822.807 Exemptions.

Requests for exemption pursuant to FAR 22.807(a)(1) shall be forwarded to the Administrator through the Headquarters Contract Management Division (Code HK), which shall obtain concurrence from appropriate Officials-in-Charge. Requests shall be accompanied by detailed written justification and the proposed exemption request for signature.

1822.870 Reports and other required information.

(a) If an offeror completes a negative representation pursuant to FAR 52.222-22, the contracting officer shall obtain the contractor's initial report within 30 days of contract award and retain it in the contract file. Such a report by the prime or subcontractor is required by 41 CFR 60-1.7 and paragraph (b)(7) of the clause, Equal Opportunity, at (FAR) 48 CFR 52.222-26.

(b) If requested by a contractor or subcontractor, any reports filed with the contracting officer shall be held in confidence as privileged information in accordance with 32 CFR 286.6(b)(4). All reports required by 1822.870(a) may be used only for the administration of Executive Order 11246, the Civil Rights Act of 1964, or in furtherance of the Act or Executive Order.

Subpart 1822.10--Service

Contract Act of 1965

1822.1001 Definitions.

"Agency labor advisor"w means the Director, Industrial Relations Office, NASA Headquarters (Code JL).

1822.1003 Applicability.

All requests for determinations and exemptions relating to the Service Contract Act shall be submitted in writing, coordinated by appropriate procurement personnel, and forwarded to Code JL.

1822.1007 Requirement to submit notice.

(a) Contracting officers shall ensure that completed Standard Forms 98/98a, Notice of Intention to Make a Service Contract and Response to Notice (original and 4 copies), reaches Code JL at least 70 days before issuing any solicitation, opening negotiations for contract extension, or exercising a contract option.

(b) Requests to expedite wage determinations shall be sent to Code JL.

1822.1008 Procedures for preparing and submitting notice (SF 98/98a).

The information listed below by item number shall be furnished, in addition to that required by the SF 98/98a:

(a) Item 6. Insert on the far left side of the block the code identifying the type of proposed action:

Code Proposed Action

I New contract (use only when services are not presently being performed).

II Recompetition of services.

III Contract modifications affecting the scope of the work (see FAR 22.1008).

IV Extension of contract performance through exercise of an option or otherwise (see FAR 22.1008).

V Other. When a multiyear contract (funding is not subject to annual appropriation) is to be entered into, specify "multiyear R&D funded" on the SF 98.

(b) Item 8.

(1) If the proposed contract will be awarded under Section 8(a) of the Small Business Act, insert both the Small Business Administration and the name of the subcontractor.

(2) If no wage determination is available for the particular contract, insert "None" in Item 8.b.

(c) Item 10. Add the solicitation number, if known.

(d) Item 12.

(1) When entering into a new service contract, list all classes of work expected to be performed under the contract under this item, regardless of whether the class of employees is considered professional, executive, administrative, or hourly. However, if submission of the SF 98/98a is in connection with any action other than a new contract (Code I in paragraph (a) of this section), list only the classes of work that the incumbent indicates are "nonexempt."

(2) When classifications include both categories of employees covered by a collective bargaining agreement and those not represented by a union, mark the classifications that are unionized with an asterisk.

(3) If the classification of work is not known, use the most descriptive job title available for the work to be performed under the contract.

(e) Item 13. If the number of employees is not known, the estimated hours required to perform the tasks should be indicated so that staffing estimates can be determined and listed.

(f) Item 14. Include in this item the wage rates that would be paid if the employees were subject to 5 U.S.C. 5332 (GS grades).

SUBPART 1822.11

PROFESSIONAL

EMPLOYEE COMPENSATION

1822.1103 Policy, procedures, and solicitation provisions.

(a) The instructions in paragraph (a) of the provision at FAR 52.222-46, Evaluation of Compensation for Professional Employees, shall be augmented in Section M of the solicitation with an explanation of how the Government will evaluate the offeror's plan. The Government's assessment of the plan shall be a weighted and scored evaluation criterion under a Mission Suitability Factor in order to ensure that the plan reflects a sound management approach and understanding of the contract requirements. This criterion shall be accorded

sufficient weight and relative order of importance to be effective under the particular circumstances involved. When (1) a significant number of professional employees are involved, the performance period is long, and the cost is relatively large, or (2) there is continuity of the same or similar services at the same location, the weight and relative importance of the criterion shall be in the "most important" or "very important" category, as considered appropriate. The lesser weighting should be employed only after careful consideration of the possible impact on labor stability.

(b) The cost realism of professional compensation proposed (see paragraph (c) of the provision at FAR 52.222-46) shall be identified as an evaluation factor in Section M of the solicitation.

SUBPART 1822.13

SPECIAL DISABLED AND

VIETNAM ERA VETERANS

1822.1306 Complaint procedures.

The Associate Administrator for Equal Opportunity Programs (Code E) is the NASA official designated to act on complaints received about administration of the Vietnam Era Veterans Readjustment Assistance Act of 1972.

SUBPART 1822.70

NONDISCRIMINATION--

GOVERNMENT LEASE

1822.7001 Policy.

It is NASA policy to include a Facilities Nondiscrimination clause in leases when NASA is the lessee. The policy has been adopted because Federal employees belonging to minority groups and other members of minority groups doing business with the Government in some parts of the country have been denied the use of public facilities located in buildings where the Government leases office space.

1822.7002 NASA contract clauses.

(a) The contracting officer shall include the clause at 1852.222-70, Facilities Nondiscrimination Notice, in all solicitations involving leases and in any resulting leases.

(b) The contracting officer shall include the clause at 1852.222-71, Facilities Nondiscrimination, in all solicitations involving leases and in any resulting leases under which the annual rental, combined with that of any other NASA leases of space in the same building, exceeds $10,000.