QAs for Solicitation 12444122R0003 Mowing Services for Cheoah Ranger District-Nantahala National Forest NC.pdf

QUESTION AND ANSWER FROM SOLICITATION 12444122R0003

MOWING SERVICES FOR CHEOAH RANGER DISTRICT

NANTAHALA NATIONAL FOREST, NC

1. Question: Will the Government check the legal status of non-English speaking foreign workers by verifying 1-9 FORMS and work permits?

ANSWER: While the Forest Service can verify compliance within the H-2B program as a part of its due diligence when selecting awardees, it does not check I-9 forms for H-2B contracted Employees under FAR Clause 52.222-94, this is the domain of DOL.

Contractors are required to self-verify their employee’s status. If there are suspected violations, the Department of Labor investigates those allegations. The jurisdiction of the Forest Service is to ensure the Competition in Contracting Act (CICA) of 1984, 31 USC 3551-3557. This solicitation is 100% Total Small Business Set Aside as posted on SAM.gov thus Total Small Business Set Aside FAR requirements are being followed. Specifically, regarding H-2B workers, these are seasonal and migrant workers as defined by DOL regulations and the temporary need for services or labor are filed under the H-2B registrations with the DOL’s national processing center as outlined in 20 C.F.R. 655.11 by the vendor wishing to use H-2B workers. This registration by the vendor using H-2B workers filing must be accompanied by documentation evidencing: the number of positions that will be sought in the first year of registration; the time period of need for the workers requested; and that the nature of the services or labor as non-agricultural and temporary, and is justified as either a one-time occurrence, a seasonal need, a peak load need, or an intermittent need, as defined by the Department of Homeland Security regulations, Id.

655.11(a). The registration filing must be received by the NPC no less than 120 calendar days and no more than 150 calendar days before the employer’s date of need, Id. 655.11(c).

The regulations further provide that an NPC certifying officer will review the H-2B registration and accompanying documentation and make a determination based on a number of factors, including whether the request represents a bona fide job opportunity, Id. 655.11(e). Once the H-2B registration is approved, the employer is then authorized for specific period of up to three consecutive years from the date of approval to file an application for temporary employment certification, Id. 655.11(h)(1) and 65.12(a). If there is a material change in the circumstances of the employer’s need as stated in its registration

– such as an increase in the number of needed employees by more than 20 percent or a change in the dates needed for the job opportunity more than 30 days – the employer must file a new H-2B registration before applying for temporary employment certification.

2. Question: Was the SOLICITATION listed on FY 2022 PROCUREMENT FORCAST?

ANSWER: The Procurement Forecasts provides program areas of work, not individual solicitations. This specific program area of work was added to the acquisition plan and will be published next time the USDA Procurement Forecast is updated. However, the Forest Service typically does this type of work every year at the same time of year thus a pattern of need has been established. Nothing in this solicitation precludes an offeror proposing to employ H-2B workers from obtaining a valid temporary employment certification in accordance with regulations at 20 CFR 655.11 and 655.12. This type of work is repetitive and seasonal in nature. All potential offerors could establish a bona fide job opportunity by reviewing the previous year’s requirements, anticipating the needs’ requirement, and applying for H-2B workers based on these repetitive and seasonal needs. With prudent business planning, hypothetically, a potential offeror planning to use H-2B workers could submit an H-2B registration for this work on October 1 of any year when DOL annually opens the application process and obtaining a temporary employment certification for an area of intended employment in sufficient time for submission of a proposal any time within the three-year period out outlined in the DOL and DHS guidelines and regulations.

3. Question: Will H2B employers be eligible for an award if they do not post job openings in the State of NC for local unemployed veterans and US citizen?

ANSWER: The Government will evaluate all proposals that comply with the terms and conditions of this solicitation. All proposals that are in compliance will be eligible for award. Any individual within the State of North Carolina who is eligible to work within the laws and regulations of the United State statutes, to include but not exclusive to the State of North Carolina, is eligible to compete for this job opportunity. The Forest Service will follow the Competition in Contracting Act (CICA) of 1984, 31 USC 3551-3557. This solicitation does not dictate the hiring practices of offerors. FAR 22.102-1 merely requires agencies to cooperate with Federal and State agencies and to encourage contractors to comply with labor requirements. It does not authorize or otherwise require contracting agencies to advise on labor-related matters. Additionally, Federal laws require contractors to comply with immigration laws and impose debarment penalties on contractors found to have violated the immigration laws. Finally, FAR 22.102-1 does not require the Forest Service to include a preference in solicitations for contractors that do not participate in the H-2B visa program, doing so would exceed the scope of these Forest Service solicitations.

Potential offerors may contact DOL or see FAR 22.102-2 regarding the resources available through the Department of Labor Employment and Training Administration (DOLETA) at http://www.doleta.gov, and its affiliated local offices in meeting contractors’ labor requirements, including requirements for workers in all occupations and skills from local labor market areas or through the Federal–State employment clearance system. 48 C.F.R.

§ 22.102-2(a).

4. Question: Will the Government accept H2B certifications from other states than NC as responsive and eligible for award?

ANSWER: The DOL issuance for H-2B workers is defined by DOL regulations and is not defined by the Forest Service. The Forest Service will follow the DOL regulations. The H- 2B Migrant Worker program falls under the jurisdiction of the US Department of Labor.

In the event that the apparent successful offeror has indicated that they will be using H-2B Workers under this project, we will verify their compliance and eligibility with the H-2B Program with Department of Labor as part of the award process. The terms of this solicitation do not limit potential offerors based on geographical location. Offerors who may have further questions regarding the H-2B program may direct them to Tanya Williams, SE Region Immigration Coordinator, SUDOL/Wage & Hour Division, her telephone number is 678-237-0548.

5. Question: Also could you post these questions and answers on SAM.GOV?

ANSWER: Yes, under Amendment 0001.