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DOD, GSA, and NASA Issues Interim Rule on Equal Employment and Affirmative Action for Veterans and Individuals With Disabilities

July 25, 2014



Targeted News Service

WASHINGTON, July 25 -- The U.S. Department of Defense, General Services Administration, and National Aeronautics & Space Administration published the following rule in the Federal Register:

Federal Acquisition Regulation: Equal Employment and Affirmative Action for Veterans and Individuals With Disabilities

A Rule by the Defense Department, the General Services Administration, and the National Aeronautics and Space Administration on 07/25/2014

Publication Date: Friday, July 25, 2014

Agencies: General Services Administration

Department of Defense

National Aeronautics and Space Administration

Dates: Effective: July 25, 2014.

Effective Date: 07/25/2014

Entry Type: Rule

Action: Interim rule.

Document Citation: 79 FR 43575

Page: 43575 -43579 (5 pages)

CFR: 48 CFR 1

48 CFR 22

48 CFR 52

Agency/Docket Numbers: FAC 2005-76

FAR Case 2014-013

Item I

Docket 2014-0013, Sequence 1

RIN: 9000-AM76

Document Number: 2014-17498

Shorter URL: https://federalregister.gov/a/2014-17498

Action

Interim Rule.

Summary

DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement final rules issued by the Office of Federal Contract Compliance Programs at the Department of Labor (DOL) relating to equal opportunity and affirmative action for veterans and individuals with disabilities.

DATES:

Effective: July 25, 2014.

Comment Date: Interested parties should submit written comments to the Regulatory Secretariat on or before September 23, 2014 to be considered in the formation of the final rule.

ADDRESSES:

Submit comments identified by FAC 2005-76, FAR Case 2014-013, by any of the following methods:

Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for "FAR Case 2014-013" Select the link "Comment Now" that corresponds with "FAR Case 2014-013." Follow the instructions provided at the "Comment Now" screen. Please include your name, company name (if any), and "FAR Case 2014-013" on your attached document.

Fax: 202-501-4067.

Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd floor, Washington, DC 20405.

Instructions: Please submit comments only and cite FAC 2005-76, FAR Case 2014-013, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:

Mr. Edward Loeb, Procurement Analyst, at 202-501-0650 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-76, FAR Case 2014-013.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA are issuing an interim rule amending the FAR to implement two DOL final rules that were published in the Federal Register on September 24, 2013 at 78 FR 58614 and at 78 FR 58682 as follows:

"Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans, Veterans of the Vietnam Era, Disabled Veterans, Recently Separated Veterans, Active Duty Wartime or Campaign Badge Veterans, and Armed Forces Service Medal Veterans", which amended DOL regulations at 41 CFR parts 60-250 and 60-300 (78 FR 58614).

"Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities", which amended DOL regulations at 41 CFR part 60-741 (78 FR 58682).

II. Discussion and Analysis

A. Subpart 22.13--Equal Opportunity for Veterans

This interim rule amends the definitions in FAR subpart 22.13 to conform to the definitions in 41 CFR 60-300.2.

Adds a definition of "active duty wartime or campaign badge veteran," which replaces the definition of "other protected veteran." The only change is in the definition title.

Adds a definition of "protected veteran."

Expands policy at FAR 22.1302 to address appropriate outreach and recruitment, and hiring benchmarks.

B. Subpart 22.14--Employment of Workers With Disabilities

The interim rule amends FAR subpart 22.14 to conform to DOL regulations at 41 CFR part 60-741.

Changes references to the title of the FAR clause at 52.222-36 to "Equal Opportunity for Workers with Disabilities".

Changes the responsible official at DOL to the "Director of Federal Contract Compliance Programs" (Director of OFCCP).

Expands policy at FAR 22.1401 to address appropriate outreach and recruitment, and utilization goals, as prescribed in the regulations of the Secretary of Labor.

Amends the waiver authority at FAR 22.1403 to be the Director of the Office of Federal Contract Compliance Programs to conform to the Department of Labor regulations. Also revises the policy at FAR 22.1403(b) concerning national security waivers to conform to the DOL regulations.

C. Clauses

The DOL regulations contain two revised Equal Opportunity clauses at 41 CFR 60-300.5 (relating to veterans) and 41 CFR 60-741.5 (relating to individuals with disabilities).

The clause for Equal Opportunity for VEVRAA Protected Veterans provides clarification of mandatory listing of employment openings and posting of notices, in paragraphs 2, 4, 9, and 12 of 41 CFR 60-300.5(a).

The clause for Equal Opportunity for Workers with Disabilities adds some requirements with regard to posting in electronic format and making notices accessible to persons with disabilities, in paragraphs 4 and 7 of 41 CFR 60-741.5(a).

Both clauses add requirements with regard to contractor solicitations or advertisements for employees, requiring inclusion of statements that all qualified applicants will receive consideration for employment, without regard to their protected veteran status; and that qualified applicants will not be discriminated against on the basis of disability.

At 41 CFR 60-300.5(d) and 41 CFR 60-741.5(d), each entitled "Inclusion of the equal opportunity clause in the contract," the DOL regulations provide that it is not necessary to include the equal opportunity clause verbatim in the contract (as had been considered in the proposed rule), but that the clause shall be made a part of the contract by citation to 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) respectively, and then provides a short paragraph that must be included after the citation, providing a brief summary that highlights to contractors and subcontractors the nature of their obligation, i.e.;

This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractor and subcontractors to employ and advance in employment qualified protected veterans; and

This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.

Therefore, in the interim FAR rule, the clauses at FAR 52.222-35, Equal Opportunity for Veterans, and 52.222-36, Equal Opportunity for Workers with Disabilities, do not repeat the entire equal opportunity clauses from the DOL regulations. Instead, each clause provides a citation to the applicable clause in the DOL regulations and includes a statement that summarizes the contractors' top level obligations under each clause. The FAR clauses must be incorporated in the contract in full text, as required by the DOL regulations.

Because some of the definitions and clause flowdown are not included within the equal opportunity clauses in the DOL regulations, the FAR clause 52.222-35 adds a paragraph to reference the appropriate definitions at FAR 22.1301, relating to types of veterans, and both 52.222-35 and 52.222-36 include a final paragraph requiring clause flowdown.

At 41 CFR 60-300.5(e) and 41 CFR 60-741.5(e), each paragraph entitled "Incorporation by Operation of the Act," the DOL regulations state that the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the Act and the regulation to include such clause, whether or not it is physically incorporated in such contract.

A minor conforming change has been made to the clause at FAR 52.222-37, Employment Reports on Veterans, to add a definition of "active duty wartime or campaign badge veterans," because the term "other protected veterans" is no longer defined in FAR subpart 22.13. However, the term "other protected veterans" still appears on the VETS-100 report, so the term is explained as equivalent in meaning to "active duty wartime or campaign badge veterans." The FAR clause 52.222-37 has also been added to the lists at 52.212-5(e) and 52.244-6 to require flowdown to commercial subcontracts.

D. Additional Contractor Duties

The DOL regulations mandate in 41 CFR part 60 additional duties that contractors must perform. Contractors must consult the DOL regulations at 41 CFR parts 60-250, 60-300, and 60-741 to understand their full obligations. The contract clause does not include detail on the duties.

E. Threshold

This rule does not change the threshold for applicability of FAR subpart 22.13 and the associated clause at 52.222-35, which is $100,000. Nor does it change the threshold for applicability of FAR subpart 22.14 and the associated clause at 52.222-36, which is $15,000. The thresholds for these clauses are set by statute. FAR 1.109 explains the statutory requirement, now codified at 41 U.S.C. 1908, for the FAR Council to subsequently adjust all the acquisition-related statutory thresholds for inflation, every five years in October.

Although the statute (section 503 of the Rehabilitation Act of 1973) (29 U.S.C. 793) originally established a threshold of $10,000, relating to equal opportunity for workers with disabilities, this was adjusted to $15,000 in October 2010. The threshold adjustment was discussed with DOL/OFCCP and they concurred with this change. The threshold of $100,000 relating to equal opportunity for veterans was not adjusted in 2010 because the inflationary adjustment resulted in an increase that was insufficient to justify an adjustment to the next threshold level.

[*Federal RegisterVJ 2014-07-25]

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