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deviation”  that is “effective immediately” and “remains in effect until it is incorporated in the FAR or otherwise rescinded.”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While this Executive Order may eventually be rescinded by the new administration, that may take some time after the January 20, 2021 inauguration.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.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the…

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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