UPDATE: Race And Sex Stereotyping Notice Provision Now Available For Inclusion In New Contracts

Jackson Lewis P.C.

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deviation” that is “effective immediately” and “remains in effect until it is incorporated in the FAR or otherwise rescinded.”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While this Executive Order may eventually be rescinded by the new administration, that may take some time after the January 20, 2021 inauguration.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

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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