OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON DC 20301-3000

December 30, 1998

MEMORANDUM FOR DIRECTORS OF DEFENSE AGENCIES DEPUTY FOR ACQUISITION AND BUSINESS MANAGEMENT,

Effective immediately, all military departments and defense agencies shall deviate from the requirements of Federal Acquisition Regulation (FAR) Subpart 22.B, Equal Employment Opportunity, and the clauses and provisions prescribed therein. Specifically, contracting officers shall implement the attached FAR Subpart 22.8, and shall use the attached clauses and provisions instead of the clauses and provisions at FAR 52.212-3 and 52.222-21 through 52.222-24 and 52.222-26 through

This deviation accelerates implementation of revisions to the FAR published in Item III of Federal Acquisition Circular 97-10, effective February 16, 1999. In part, Item III increases from $1 million to $10 million the threshold for obtaining from the Office of Federal Contract Compliance Programs (OFCCP) preaward compliance clearance of prospective contractors, and reduces OFCCP and contracting agency processing times.

This class deviation supersedes Class Deviation Number 98-00002 and is approved until February 16, 1999.

SUBJECT: Class Deviation---Equal Employment Opportunity

Effective immediately, all military departments and defense agencies shall deviate from the requirements of Federal Acquisition Regulation (FAR) Subpart 22.8, Equal Employment Opportunity, and the clauses and provisions prescribed therein. Specifically, contracting officers shall implement the attached FAR Subpart 22.8, and shall use the attached clauses and provisions instead of the clauses arid provisions at FAR 52.212-3 and 52.222-21 through 52.222-24 arid 52.222-26 through 52.222-29.

This class deviation implements a Department of Labor final rule that was published in the Federal Register on August 19, 1997 (62 FR 44174). In part, the final rule eliminates the requirement to obtain a certification of nonsegregated facilities from prospective contractors; increases from $1 million to $10 million the threshold for1 and amends the timing of, obtaining from the Office of Federal Contract Compliance Programs preaward compliance clearance of prospective contractors and subcontractors; and eliminates the requirement for postaward compliance clearance of subcontractors.

This class deviation supersedes class deviation number 97-O0008, and is approved until December 31, 1998, or until the FAR is revised, whichever occurs first.

Eleanor R. Spector

Director, Defense Procurement

Attachment

SUBPART 22.8--EQUAL EMPLOYMENT OPPORTUNITY

22.800 Deviation-Scope of subpart.

This subpart prescribes policies and procedures pertaining to nondiscrimination in employment by [ ] contractors and subcontractors.

22.801 Deviation-Definitions.

[As used in this subpart--]

"Affirmative action program," [ ] means a contractor's program that complies with Department of Labor regulations to ensure equal opportunity in employment to minorities and women.

[@Compliance evaluation" means any one or combination of actions that the Office of Federal Contract Compliance Programs (OFCCP) may take to examine a Federal Contractor's compliance with one or more of the requirements of E.O. 11246]

[ ]

[ ]

"Contractor," [ ] includes the terms "prime contractor" and "subcontractor".

[@Deputy Assistant Secretary,@ ] means the [Deputy Assistant Secretary for] Federal Contract Compliance Programs [ ], United States Department of Labor [or a designee].

"Equal Opportunity clause," [ ] means the clause at 52.222-26, Equal Opportunity, prescribed in 22.810(e).

"E[.]O[.] 11246," [ ] means Parts II and IV of Executive Order 11246, September 24, 1965 (30 FR 12319), and any Executive Order amending or superseding this Order (see 22.802). This term specifically includes the Equal Opportunity clause at 52.222-26, and the rules, regulations, and orders issued pursuant to E[.]O[.] 11246 by the Secretary of Labor or a designee.

[ ]

"Prime contractor,"[ ] means any person who holds, or has held, a Government contract subject to E[.]O[.] 11246.

"Recruiting and training agency," [ ] means any person who refers workers to any contractor [ ] or provides or supervises apprenticeship or training for employment by any contractor [ ].

"Site of construction," [ ] means the general physical location of any building, highway, or other change or improvement to real property that is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair; and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to a Government contract or subcontract.

"Subcontract," [ ] means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee)--

(a) For the [purchase, sale,]or [ ]use of [ ]personal property, [or nonpersonal services that ] [ ] in whole or in part, is necessary to the performance of any one or more [ ] contracts; or

(b) Under which any portion of the contractor's obligation under any one or more [ ] contracts is performed, undertaken, or assumed.

"Subcontractor,"[ ] means any person who holds, or has held, a subcontract subject to E[.]O[.] 11246. The term "first-tier subcontractor" means a subcontractor holding a subcontract with a prime contractor.

"United States," [ ] means the [several] States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, [Guam, American Samoa, the Commonwealth of the Northern Mariana Islands and Wake Island. ]

22.802 General.

(a) Executive Order 11246, as amended, sets forth the Equal Opportunity clause and requires that all [ ] agencies--

(b) No contract or modification involving new acquisition shall be entered into, and no subcontract shall be approved by a contracting officer, with a person who has been found ineligible by the [ ][Deputy Assistant Secretary] for reasons of noncompliance with the requirements of E[.]O[.] 11246.

(c) No contracting officer or contractor shall contract for supplies or services in a manner so as to avoid applicability of the requirements of E[.]O[.] 11246.

(d) Contractor disputes related to compliance with its obligation shall be handled according to the rules, regulations, and relevant orders of the Secretary of Labor (see 41 CFR 60-1.1).

22.803 Responsibilities.

22.804 Affirmative action programs.

22.804-1 Nonconstruction.

Except as provided in 22.807, each nonconstruction prime contractor and each subcontractor with 50 or more employees and [either a] contract or subcontract of $50,000 or more or Government bills of lading that in any 12-month period, total, or can reasonably be expected to total, $50,000 or more, is required to develop a written affirmative action program for each of its establishments [. Each contractor and subcontractor shall develop its written affirmative action programs] within 120 days from the commencement of its first such Government contract, subcontract, or Government bill of lading.

22.804-2 Construction.

(a) Construction contractors that hold a nonexempt (see 22.807) Government construction contract are required to meet (1) the contract terms and conditions citing affirmative action requirements applicable to covered geographical areas or projects and (2) applicable requirements of 41 CFR 60-1 and 60-4.

(b) Each [ ] agency shall maintain a listing of covered geographical areas that are subject to affirmative action requirements that specify goals for minorities and women in covered construction trades. Information concerning, and additions to, this listing will be provided to the principally affected contracting officers in accordance with agency procedures. Any contracting officer contemplating a construction project in excess of $10,000 within a geographic area not known to be covered by specific affirmative action goals shall request instructions on the most current information from the OFCCP regional office, or as otherwise specified in agency regulations, before issuing the solicitation.

*****

22.805 Procedures.

([9]) If, under the provisions of [paragraph] (a)([8]) [of this section], a postaward [evaluation]determines the contractor to be [in noncompliance with E.O. 11246], the [Deputy Assistant Secretary], may authorize the use of the enforcement procedures at 22.809 against the noncomplying contractor.

.

22.806 Inquiries.

22.807 Exemptions.

(b) The following exemptions apply even though a contract or subcontract contains the Equal Opportunity clause:

.

22.808 Complaints.

Complaints received by the contracting officer alleging violation of the requirements of E[.]O[.] 11246 shall be referred immediately to the OFCCP regional office. The complainant shall be advised in writing of the referral. The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received.

22.809 Enforcement.

Upon the written direction of the [Deputy Assistant Secretary], one or more of the following actions, as well as administrative sanctions and penalties, may be exercised against contractors found to be in violation of E[.]O[.] 11246, the regulations of the Secretary of Labor, or the applicable contract clauses:

(b) Cancellation, termination, or suspension of the contractor's contracts or portion thereof.

22.810 Solicitation provisions and contract clauses.

(a) [ W]hen a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity [the contracting officer shall insert--]

(b) The contracting officer shall insert the provision at 52.222-23, Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity [for Construction], in solicitations for construction when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity, and the amount of the contract is expected to be in excess of $10,000.

(c) The contracting officer shall insert the provision at 52.222-24, Preaward On-Site Equal Opportunity Compliance [Evaluation], in solicitations, other than those for construction, when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity, and the amount of the contract is expected to be for $1[0] million or more.

(d) The contracting officer shall insert the provision at 52.222-25, Affirmative Action Compliance, in solicitations, other than those for construction, when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity.

(e) The contracting officer shall insert the clause at 52.222-26, Equal Opportunity, in solicitations and contracts (see 22.802) unless [the contract is exempt from all of] the requirements of E[.]O[.] 11246 (see 22.807(a)). If [the contract is exempt from] one or more, but not all, of the [ ] requirements of E[.]O[.] 11246, the contracting officer shall use the [ ] clause with its Alternate I.

(f) The contracting officer shall insert the clause at 52.222-27, Affirmative Action Compliance Requirements for Construction, in solicitations and contracts for construction that will include the clause at 52.222-26, Equal Opportunity, [when] the amount of the contract is expected to be in excess of $10,000.

[ ]

[ ] The contracting officer shall insert the clause at 52.222-29, Notification of Visa Denial, in contracts that will include the clause at 52.222-26, Equal Opportunity, if the contractor is required to perform in or on behalf of a foreign country.

52.212-3 Offeror Representations and Certifications--Commercial Items.

As prescribed in 12.301(b)(2), insert the following provision:

(A) *****

(C) *****

(d) Certifications and representations required to implement provisions of Executive Order 11246--(1) [ ] Previous Contracts and Compliance. The offeror represents that--

52.222-21[Prohibition of S]egregated Facilities.

As prescribed in 22.810(a)(1), insert the following [clause]:

(a) "Segregated facilities," as used in this [ ][clause], means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, [sex] or national origin because of [ written or oral policies, or employee custom]. [The term does not include separate or single-user rest rooms and necessary dressing or sleeping areas, which shall be provided to assure privace between the sexes.]

(b) [ ][The Contractor agrees] that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The [Contractor] agrees that a breach of this [clause] is a violation of the Equal Opportunity clause in [this] contract.

(c) The [Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Opportunity clause of this contract. ]

52.222-22 Previous Contracts and Compliance Reports.

As prescribed in 22.810(a)(2), insert the following provision [ ]:

The offeror represents that--

(a) It [ ] has, [ ] has not participated in a previous contract or subcontract subject [ ] to the Equal Opportunity clause of this solicitation[ ];

(b) It [ ] has, [ ] has not, filed all required compliance reports; and

(c) Representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained before subcontract awards.

52.222-23 Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity [for Construction].

As prescribed in 22.810(b), insert the following provision[ ]:

(a) The offeror's attention is called to the Equal Opportunity clause and the Affirmative Action Compliance Requirements for Construction clause of this solicitation.

(b) The goals for minority and female participation, expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covered area, are as follows:

Goals for minority participa- Goals for female participa-

tion for each trade tion for each trade

[Contracting Officer shall insert goals] [Contracting Officer shall insert goals]

*****

(d) The Contractor shall provide written notification to the [Deputy Assistant Secretary for] Federal Contract Compliance[, U.S. Department of Labor], within 10 working days following award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the--

(e) As used in this Notice, and in any contract resulting from this solicitation, the "covered area" is ................ [Contracting Officer shall insert description of the geographical areas where the contract is to be performed, giving the State, county, and city].

52.222-24 Preaward On-Site Equal Opportunity Compliance [Evaluation].

As prescribed in 22.810(c), insert the following provision [ ]:

[If a contract in the amount of $10 million or more will be the result of this solicitation, the prospective contractor and its know first-tier subcontractors with anticipated subcontracts of $10 million or more shall be subject to a preaward compliance evaluation by the Office of Federal Contract compliance Programs (OFCCP) , unless within the preceding 24 months OFCCP has conducted an evaluation and found the prospective contractor and subcontractors to be in compliance with Executive Order 11246.]

52.222-25 Affirmative Action Compliance.

As prescribed in 22.810(d), insert the following provision[ ]:

The offeror represents that-

52.222-26 Equal Opportunity.

As prescribed in 22.810(e), insert the following clause[ ]:

(a) If, during any 12-month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) through (11)[of this clause]. Upon request, the Contractor shall provide information necessary to determine the applicability of this clause.

(b) During perform[ance of] this contract, the Contractor agrees as follows:

Alternate I (APR 1984). [As prescribed in 22.810(e),] add the following as a preamble to the clause:

52.222-27 Affirmative Action Compliance Requirements for Construction.

As prescribed in 22.810(f), insert the following clause[ ]:

(a) Definitions. "Covered area," as used in this clause, means the geographical area described in the solicitation for this contract.

[@Deputy Assistant Secretary,@] as used in this clause, means [Deputy Assistant Secretary for] Federal Contract Compliance [ ], [U.S.] Department of Labor [ ][or a designee].

*****

(g) The Contractor shall take affirmative action to ensure equal employment opportunity. The evaluation of the Contractor's compliance with this clause shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully and implement affirmative action steps at least as extensive as the following:

(n)*****

52.222-28 [Reserved]

52.222-29 Notification of Visa Denial.

As prescribed in 22.810([g]), insert the following clause[ ]:

It is a violation of Executive Order 11246, as amended, for a Contractor to refuse to employ any applicant or not to assign any person hired in the United States, on the basis that the individual's race, color, religion, sex, or national origin is not compatible with the policies of the country where the work is to be performed or for whom the work will be performed (41 CFR 60-1.10). The Contractor agrees to notify the [U.S.] Department of State, [Assistant Secretary, Bureau of Political-Military Affairs (PM), 2201 C Street NW, Room 7325,] Washington, DC. [20520][ ], and the [ ][Deputy Assistant Secretary for] Federal Contract Compliance Programs, when it has knowledge of any employee or potential employee being denied an entry visa to a country in which the Contractor is required to perform this contract, and it believes the denial is attributable to the race, color, religion, sex, or national origin of the employee or potential employee.