The Department of Defense has published a Memo and provided the Clause which its contracting agencies are now required to include in new contracts after the November 21, 2020 effective date of Executive Order 13950 – Combating Race and Sex Stereotyping.  The notice identifies this as a “class deviation”  that is “effective immediately” and “remains in effect until it is incorporated in the FAR or otherwise rescinded.”

As a reminder, section 4 of the President’s Executive Order provides that except for exempt contracts, “all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions: …” (Emphasis added).  The new Department of Defense Clause acts to operationalize the requirement – instructing contracting agencies to use [the provided clause] in solicitations and contracts, when a contract is contemplated that will include the clause at Federal Acquisition Regulation (FAR) 52.222-26, Equal Opportunity.

The Order also provides that contractors with contracts in which the Clause appears shall include (“flow down”) in the language in subcontracts “that exceed $10,000”.

In addition to including the Clause in covered subcontracts, contractors also

… shall send, to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, the notice provided below advising the labor union or workers’ representative of the Contractor’s commitments under this clause, and post copies of the notice in conspicuous places available to employees and applicants for employment.

The somewhat lengthy labor union notice is included in the Clause released by the Department of Defense.

Notably, the Memo also directs Department of Defense contracting officers to amend solicitations issued prior to November 20, 2020, to include the notice “in any resultant contract award expected to occur on or after November 20, 2020.”

 

While this Executive Order may eventually be rescinded by the new administration, that may take some time after the January 20, 2021 inauguration.  Thus, contractors should begin looking for the Clause in solicitations and contracts, and be prepared to include the Clause in any covered subcontracts.  As a reminder, OFCCP takes the position, that even without the contract clause, Executive Order 11246 prevents race and gender stereotyping and the Agency will investigate complaints, or evidence, of violations.

We will be sure to provide updates in this area as they develop.

Tags: Combating Race and Sex Stereotyping, Department of Defense, Equal Opportunity, Executive Order 11246, Executive Order 13950, Federal Acquisition Regulation (FAR) 52.222-26, OFCCP, Office of Federal Contract Compliance Programs
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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.

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