Economy and Efficiency in Government Procurement Through Compliance With Certain Immigration and Naturalization Act Provisions

Executive Order 12989 of February 13, 1996

Economy and Efficiency in Government Procurement
Through Compliance With Certain Immigration and
Naturalization Act Provisions

This order is designed to promote economy and
efficiency in Government procurement. Stability and
dependability are important elements of economy and
efficiency. A contractor whose work force is less
stable will be less likely to produce goods and
services economically and efficiently than a contractor
whose work force is more stable. It remains the policy
of this Administration to enforce the immigration laws
to the fullest extent, including the detection and
deportation of illegal aliens. In these circumstances,
contractors cannot rely on the continuing availability
and service of illegal aliens, and contractors that
choose to employ unauthorized aliens inevitably will
have a less stable and less dependable work force than
contractors that do not employ such persons. Because of
this Administration's vigorous enforcement policy,
contractors that employ unauthorized alien workers are
necessarily less stable and dependable procurement
sources than contractors that do not hire such persons.
I find, therefore, that adherence to the general policy
of not contracting with providers that knowingly employ
unauthorized alien workers will promote economy and
efficiency in Federal procurement.

NOW, THEREFORE, to ensure the economical and efficient
administration and completion of Federal Government
contracts, and by the authority vested in me as
President by the Constitution and the laws of the
United States of America, including 40 U.S.C. 486(a)
and 3 U.S.C. 301, it is hereby ordered as follows:

Section 1. (a) It is the policy of the executive branch
in procuring goods and services that, to ensure the
economical and efficient administration and completion
of Federal Government contracts, contracting agencies
should not contract with employers that have not
complied with section 274A(a)(1)(A) and 274A(a)(2) of
the Immigration and Nationality Act (8 U.S.C.
1324a(a)(1)(A), 1324a(a)(2)) (the “INA employment
provisions”) prohibiting the unlawful employment of
aliens. All discretion under this Executive order shall
be exercised consistent with this policy.

    (b) It remains the policy of this Administration to
fully and aggressively enforce the antidiscrimination
provisions of the Immigration and Nationality Act to
the fullest extent. Nothing in this order relieves
employers from their obligation to avoid unfair
immigration-related employment practices as required by
the antidiscrimination provisions of section 1324(b) of
the INA (8 U.S.C. 1324b) and all other
antidiscrimination requirements of applicable law,
including the requirements of 8 U.S.C. 1324b(a)(6)
concerning the treatment of certain documentary
practices as unfair immigration-related employment
practices.

Sec. 2. Contractor, as used in this Executive order,
shall have the same meaning as defined in subpart 9.4
of the Federal Acquisition Regulation.

Sec. 3. Using the procedures established pursuant to 8
U.S.C. 1324a(e), the Attorney General: (a) may
investigate to determine whether a contractor or an
organizational unit thereof is not in compliance with
the INA employment provisions;

    (b) shall receive and may investigate complaints by
employees of any entity covered under section 3(a) of
this order where such complaints allege noncompliance
with the INA employment provisions; and

    (c) shall hold such hearings as are required under
8 U.S.C. 1324a(e) to determine whether an entity
covered under section 3(a) is not in compliance with
the INA employment provisions.

Sec. 4. (a) Whenever the Attorney General determines
that a contractor or an organizational unit thereof is
not in compliance with the INA employment provisions,
the Attorney General shall transmit that determination
to the appropriate contracting agency and such other
Federal agencies as the Attorney General may determine.
Upon receipt of such determination from the Attorney
General, the head of the appropriate contracting agency
shall consider the contractor or an organizational unit
thereof for debarment as well as for such other action
as may be appropriate in accordance with the procedures
and standards prescribed by the Federal Acquisition
Regulation.

    (b) The head of the contracting agency may debar
the contractor or an organizational unit thereof based
on the determination of the Attorney General that it is
not in compliance with the INA employment provisions.
The Attorney General's determination shall not be
reviewable in the debarment proceedings.
    (c) The scope of the debarment generally should be
limited to those organizational units of a Federal
contractor that the Attorney General finds are not in
compliance with the INA employment provisions.
    (d) The period of the debarment shall be for 1 year
and may be extended for additional periods of 1 year
if, using the procedures established pursuant to 8
U.S.C. 1324a(e), the Attorney General determines that
the organizational unit of the Federal contractor
continues to be in violation of the INA employment
provisions.
    (e) The Administrator of General Services shall
list a debarred contractor or an organizational unit
thereof on the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs and the
contractor or an organizational unit thereof shall be
ineligible to participate in any procurement or
nonprocurement activities.

Sec. 5. (a) The Attorney General shall be responsible
for the administration and enforcement of this order,
except for the debarment procedures. The Attorney
General may adopt such additional rules and regulations
and issue such orders as may be deemed necessary and
appropriate to carry out the responsibilities of the
Attorney General under this order. If the Attorney
General proposes to issue rules, regulations, or orders
that affect the contracting departments and agencies,
the Attorney General shall consult with the Secretary
of Defense, the Secretary of Labor, the Administrator
of General Services, the Administrator of the National
Aeronautics and Space Administration, the Administrator
for Federal Procurement Policy, and such other agencies
as may be appropriate.

    (b) The Secretary of Defense, the Administrator of
General Services, and the Administrator of the National
Aeronautics and Space Administration shall amend the
Federal Acquisition Regulation to the extent necessary
and appropriate to implement the debarment
responsibility and other related responsibilities
assigned to heads of contracting departments and
agencies under this order.

Sec. 6. Each contracting department and agency shall
cooperate with and provide such information and
assistance to the Attorney General as may be required
in the performance of the Attorney General's functions
under this order.

Sec. 7. The Attorney General, the Secretary of Defense,
the Administrator of General Services, the
Administrator of the National Aeronautics and Space
Administration, and the heads of contracting
departments and agencies may delegate any of their
functions or duties under this order to any officer or
employee of their respective agencies.

Sec. 8. This order shall be implemented in a manner
intended to least burden the procurement process. This
order neither authorizes nor requires any additional
certification provision, clause, or requirement to be
included in any contract or contract solicitation.

Sec. 9. This order is not intended, and should not be
construed, to create any right or benefit, substantive
or procedural, enforceable at law by a party against
the United States, its agencies, its officers, or its
employees. This order is not intended, however, to
preclude judicial review of final agency decisions in
accordance with the Administrative Procedure Act, 5
U.S.C. 701 et seq.

    (Presidential Sig.)

THE WHITE HOUSE,

    February 13, 1996.