Incorporated in the FAR

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PIC 99-3

Procurement Information Circular


January 11, 1999

EQUAL EMPLOYMENT OPPORTUNITY CLASS DEVIATION

PURPOSE: To rescind the class deviation from the requirements of the Federal Acquisition Regulation (FAR) at 22.805.

BACKGROUND: NASA issued a class deviation from the requirements of FAR 22.805 in a memorandum dated October 31, 1997. The class deviation implemented a Department of Labor (DOL) final rule which became effective September 18, 1997. The DOL rule raised the threshold for obtaining preaward clearances for contracts and subcontracts (excluding construction) from $1 million to $10 million. The rule also amended the timing of obtaining preaward compliance clearances of prospective contractors and subcontractors from the DOL Office of Federal Contract Compliance Programs. A memorandum was used instead of revising the NASA FAR Supplement so that implementation of the DOL rule would not be delayed, and because it was contemplated that a FAR rule would be issued shortly. A final FAR rule was published in the Federal Register (63 FR 70282-70287) December 18, 1998. The publication of the FAR rule eliminates the need for the NASA class deviation. The FAR rule is effective February 16, 1999.

EFFECTIVE DATE: This PIC is effective February 16, 1999, and shall remain in effect until canceled or superseded

HEADQUARTERS CONTACT: Joe Le Cren, Code HK, (202) 358-0444, e-mail: joseph.lecren@hq.nasa.gov.

 

Tom Luedtke

Acting Associate Administrator for Procurement

Enclosure

 


HK

 

TO: Procurement Officers

SUBJECT: Class Deviation - Equal Employment Opportunity

Effective immediately, all NASA installations are required to deviate from the requirements of the Federal Acquisition Regulation (FAR) 22.805. Contracting officers shall implement the enclosed procedures for obtaining preaward compliance clearances in lieu of those in FAR 22.805. In addition, the provisions and clauses at FAR 52.222-21 and 52.222-24, and 52.222-28, respectively, will be amended as shown in the enclosure.

This class deviation implements a Department of Labor (DOL) final rule that was published in the August 19, 1997 Federal Register (62 FR 44174). That rule, which implements Executive Order 11246, as amended, prohibits employment discrimination and establishes affirmative action requirements for nonexempt Federal contractors and subcontractors. The DOL rule raises the threshold for preaward clearance for contracts and subcontracts (excluding construction) from $1 million to $10 million. The rule also amends the timing of obtaining from the Office of Federal Contract Compliance preaward compliance clearance of prospective contractors and subcontractors.

A case to revise the FAR at 22.805 is in process. This class deviation is approved until the FAR is revised

/s/

Deidre A. Lee

Associate Administrator for Procurement

Enclosure

 


Baseline is the current FAR through FAC 97-01. Additions are indicated in bold and [brackets], while deletions are indicated by strikeout.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

* * * * *

22.805 Procedures.

 (a) Preaward clearances for contracts and subcontracts of $1[$10] million or more (excluding construction). (1) Except as provided in 22.805(a)(7) below, if the estimated amount of the contract, subcontract, or basic ordering agreement is expected to aggregate $1[$10] million or more or to increase the aggregate value of an existing contract to $1 million or more, the contracting officer shall request the appropriate OFCCP regional office to determine whether a contractor is awardable before--

 (i) Award of any contract, including any indefinite delivery contract or letter contract;

 (ii) Modification of an existing contract for new effort that would constitute a contract award; or

 (iii) The issuance of any basic ordering agreement.

 (2) Preaward clearance for each proposed contract and for each proposed first-tier subcontract of $1[$10] million or more shall be requested by the contracting officer directly from the OFCCP regional office(s). Verbal requests shall be confirmed in writing.

 (3) When the contract work is to be performed outside the United States with employees recruited within the United States, the contracting officer shall send the request for a preaward review to the OFCCP regional office serving the area where the proposed contractor's corporate home or branch office is located in the United States, or the corporate location where personnel recruiting is handled, if different from the contractor's corporate home or branch office. If the proposed contractor has no corporate office or location within the United States, the preaward review request action should be based on the location of the recruiting and training agency in the United States.

 (4) The contracting officer shall include the following information in the preaward review request:

 (i) Name, address, and telephone number of the prospective contractor and of any corporate affiliate at which work is to be performed.

 (ii) Name, address, and telephone number of each proposed first-tier subcontractor with a proposed subcontract estimated at $1[$10] million or more.

 (iii) Anticipated date of award.

 (iv) Information as to whether the contractor and first-tier subcontractors have previously held any Government contracts or subcontracts.

 (v) Place or places of contract performance and first-tier subcontracts estimated at $1[$10] million or more, if known.

 (vi) The estimated dollar amount of the contract and each first-tier subcontract, if known.

 (5) The contracting officer shall allow as much time as feasible before award for the conduct of necessary reviews by OFCCP. As soon as the apparently successful contractor can be determined, the contracting officer shall process a preaward review request in accordance with agency procedures, assuring, if possible, that the preaward review request is submitted to the OFCCP regional office at least 30[15] calendar days before the proposed award date.

 (6) [If OFCCP does not inform the contracting officer, within 15 days of the preaward review request, of its intention to conduct a preaward compliance evaluation, clearance shall be presumed, and the contracting officer is authorized to award the contract. If OFCCP does inform the contracting officer, within 15 days of the preaward review request, of its intention to conduct a preaward compliance evaluation, OFCCP shall be allowed an additional 20 days after the date that it so informs the contracting officer. If OFCCP does not provide the contracting officer with its conclusions within that 20 day period, clearance shall be presumed, and the contracting officer is authorized to award the contract.] In the event the Director has not made a final preaward clearance determination within 30 calendar days from submission of the clearance request, the contracting officer shall withhold award of the contract for an additional 15 calendar days, or until clearance is received, whichever occurs first. If the additional 15 calendar days expire, and the Director has not either found the contractor to be in compliance or made a final written determination declaring the contractor ineligible for reasons of noncompliance, the award may be made to the contractor in question. The contracting officer shall notify the OFCCP regional office of the award.

 (7) If the procedures specified in (a)(5) and (a)(6) above would delay award of an urgent and critical contract beyond the time necessary to make award or beyond the time specified in the offer or extension thereof, the contracting officer shall immediately inform the OFCCP regional office of the expiration date of the offer or the required date of award and request clearance be provided before that date. If the OFCCP regional office advises that a preaward review cannot be completed by the required date, the contracting officer shall submit written justification for the award to the head of the contracting activity, who, after informing the OFCCP regional office, may then approve the award without the preaward clearance. If an award is made under this authority, the contracting officer shall immediately request a postaward review from the OFCCP regional office.

 (8) If, under the provisions of (a)(7) above, a postaward review determines the contractor to be nonawardable, the Director, may authorize the use of the enforcement procedures at 22.809 against the noncomplying contractor.

* * * * *


52.222-21 Certification of Nonsegregated Facilities (Apr 1984)(DEVIATION)(delete paragraph (c) of the provision)

(a) "Segregated facilities," as used in this provision, 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, or national origin because of habit, local custom, or otherwise.

(b) By the submission of this offer, the offeror certifies 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 offeror agrees that a breach of this certification is a violation of the Equal Opportunity clause in the contract.

(c) The offeror further agrees that (except where it has obtained identical certifications from proposed subcontractors for specific time periods) it will--

(1) Obtain identical certifications from proposed subcontractors before the award of subcontracts under which the subcontractor will be subject to the Equal Opportunity clause;

(2) Retain the certifications in the files; and

(3) Forward the following notice to the proposed subcontractors (except if the proposed subcontractors have submitted identical certifications for specific time periods):

Notice to Prospective Subcontractors of Requirement for Certifications of Nonsegregated Facilities.

A Certification of Nonsegregated Facilities must be submitted before the award of a subcontract under which the subcontractor will be subject to the Equal Opportunity clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e., quarterly, semiannually, or annually).

Note: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.

(End of provision)

52.222-24 Preaward On-Site Equal Opportunity Compliance Review (Apr 1984)(DEVIATION)(revise "$1 million" to read "$10 million" in both places)

An award in the amount of $1[$10] million or more will not be made under this solicitation unless the offeror and each of its known first-tier subcontractors (to whom it intends to award a subcontract of $1[$10] million or more) are found, on the basis of a compliance review, to be able to comply with the provisions of the Equal Opportunity clause of this solicitation.

(End of provision)

52.222-28 Equal Opportunity Preaward Clearance of Subcontracts (Apr 1984) (DEVIATION)(revise "$1 million" to read "$10 million")

Notwithstanding the clause of this contract entitled "Subcontracts," the Contractor shall not enter into a first-tier subcontract for an estimated or actual amount of $1[$10] million or more without obtaining in writing from the Contracting Officer a clearance that the proposed subcontractor is in compliance with equal opportunity requirements and therefore is eligible for award.

(End of clause)