22.805 Procedures
Source: FAR 22.805 on acquisition.gov
For contracts and first-tier subcontracts of $10 million or more (excluding construction), contracting officers must obtain OFCCP preaward clearance unless the contractor is listed in the National Preaward Registry, ensuring EEO compliance before award.
Overview
FAR 22.805 outlines the procedures contracting officers must follow to obtain preaward clearances from the Office of Federal Contract Compliance Programs (OFCCP) for contracts and first-tier subcontracts valued at $10 million or more (excluding construction). The regulation details when and how to request clearances, exceptions to the requirement, information to include in requests, and timelines for OFCCP responses. It also addresses urgent contract awards and the process for postaward evaluations if preaward clearance is not feasible. Additionally, it requires contracting officers to provide contractors with "Equal Employment Opportunity Is The Law" posters.
Key Rules
- Preaward Clearance Requirement
- For contracts and first-tier subcontracts of $10 million or more, contracting officers must request OFCCP clearance before award or significant modification, unless exceptions apply.
- Exceptions to Clearance
- No clearance is needed if the contractor is listed in the OFCCP National Preaward Registry, the award is within 24 months of their Notice of Compliance, and the review is documented.
- Request Process and Content
- Requests must be sent to the appropriate OFCCP regional office and include specific contractor and subcontractor information, anticipated award date, and contract values.
- Timelines
- Requests should be submitted at least 30 days before award. OFCCP has 15 days to indicate intent to evaluate and 20 additional days to conclude, or clearance is presumed.
- Urgent Awards
- For urgent contracts, special procedures allow for award without preaward clearance, but require postaward evaluation and justification.
- Poster Requirement
- Contracting officers must provide contractors with required EEO posters.
Responsibilities
- Contracting Officers: Must request and document OFCCP clearances, follow specified timelines, provide required information, handle urgent awards per procedures, and furnish EEO posters.
- Contractors: Must comply with EEO requirements and may be subject to compliance evaluations.
- Agencies: Must oversee compliance, maintain documentation, and coordinate with OFCCP as required.
Practical Implications
- Ensures that large federal contracts are awarded only to contractors in compliance with EEO laws.
- Delays in clearance requests or incomplete information can postpone contract awards.
- Contractors should maintain up-to-date compliance status to benefit from Registry exceptions.
- Failure to comply can result in enforcement actions and jeopardize contract awards.
(a) Preaward clearances for contracts and subcontracts of $10 million or more (excluding construction).
(1) Except as provided in paragraphs (a)(4) and (a)(8) of this section, if the estimated amount of the contract or subcontract is $10 million or more, the contracting officer shall request clearance from the appropriate OFCCP regional office before-
(i) Award of any contract, including any indefinite delivery contract or letter contract; or
(ii) Modification of an existing contract for new effort that would constitute a contract award.
(2) Preaward clearance for each proposed contract and for each proposed first-tier subcontract of $10 million or more shall be requested by the contracting officer directly from the OFCCP regional office(s). Verbal requests shall be confirmed by letter or facsimile transmission.
(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 clearance 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 clearance request action should be based on the location of the recruiting and training agency in the United States.
(4) The contracting officer does not need to request a preaward clearance if-
(i) The specific proposed contractor is listed in OFCCP’s National Preaward Registry via the Internet at https://www.dol.gov/agencies/ofccp/pre-award/registry" target="_blank">https://www.dol.gov/agencies/ofccp/pre-award/registry;
(ii) The projected award date is within 24 months of the proposed contractor’s Notice of Compliance completion date in the Registry; and
(iii) The contracting officer documents the Registry review in the contract file.
(5) The contracting officer shall include the following information in the preaward clearance 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 $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 performance of the prime contract and first-tier subcontracts estimated at $10 million or more, if known.
(vi) The estimated dollar amount of the contract and each first-tier subcontract, if known.
(6) The contracting officer shall allow as much time as feasible before award for the conduct of necessary compliance evaluation by OFCCP. As soon as the apparently successful offeror can be determined, the contracting officer shall process a preaward clearance request in accordance with agency procedures, assuring, if possible, that the preaward clearance request is submitted to the OFCCP regional office at least 30 days before the proposed award date.
(7) Within 15 days of the clearance request, OFCCP will inform the awarding agency of its intention to conduct a preaward compliance evaluation. If OFCCP does not inform the awarding agency within that period of its intention to conduct a preaward compliance evaluation, clearance shall be presumed and the awarding agency is authorized to proceed with the award. If OFCCP informs the awarding agency 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 awarding agency to provide its conclusions. If OFCCP does not provide the awarding agency with its conclusions within that period, clearance shall be presumed and the awarding agency is authorized to proceed with the award.
(8) If the procedures specified in paragraphs (a)(6) and (a)(7) of this section 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 evaluation 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 evaluation from the OFCCP regional office.
(9) If, under the provisions of paragraph (a)(8) of this section, a postaward evaluation determines the contractor to be in noncompliance with E.O. 11246, the Deputy Assistant Secretary may authorize the use of the enforcement procedures at 22.809 against the noncomplying contractor.
(b) Furnishing posters. The contracting officer shall furnish to the contractor appropriate quantities of the poster entitled "Equal Employment Opportunity Is The Law." These shall be obtained in accordance with agency procedures.