22.807 Exemptions
Source: FAR 22.807 on acquisition.gov
FAR 22.807 provides specific exemptions to E.O. 11246, allowing certain contracts or contractors to be excluded from equal opportunity requirements under defined circumstances, but requires careful documentation and approval for most exemptions.
Overview
FAR 22.807 outlines specific exemptions to the requirements of Executive Order (E.O.) 11246, which mandates equal employment opportunity in federal contracting. This section details circumstances under which contracts or contractors may be partially or wholly exempt from E.O. 11246, including national security, certain contract types, work locations, contract values, and specific entities such as religious organizations or state/local governments. It also establishes procedures for requesting exemptions and conditions under which exemptions may be withdrawn.
Key Rules
- National Security Exemption
- Agency heads may exempt contracts from E.O. 11246 if compliance would compromise national security, with notification to the Deputy Assistant Secretary required within 30 days.
- Special Circumstances Exemption
- The Deputy Assistant Secretary can exempt specific contracts or groups of contracts for national interest reasons or administrative convenience.
- Automatic Exemptions
- Contracts under $10,000 (unless aggregate exceeds $10,000 in 12 months), work performed outside the U.S. by non-U.S.-recruited employees, certain state/local government contracts, Indian employment preferences near reservations, and certain facilities or religious entities may be exempt.
- Indefinite-Quantity Contracts
- Equal Opportunity clause applies if annual orders are expected to exceed $10,000; once applicable, it remains for the contract duration.
- Exemption Requests and Withdrawals
- Contracting officers must submit detailed justifications for exemptions; the Deputy Assistant Secretary may withdraw exemptions under specified conditions.
Responsibilities
- Contracting Officers: Identify and process exemption requests, ensure proper documentation, and monitor applicability of Equal Opportunity clauses.
- Contractors: Understand which exemptions may apply and maintain compliance with E.O. 11246 where required.
- Agencies: Notify and coordinate with the Deputy Assistant Secretary, maintain oversight, and ensure proper application of exemptions.
Practical Implications
- This section clarifies when E.O. 11246 requirements do not apply, helping contractors and agencies avoid unnecessary compliance burdens.
- It is critical for contracting professionals to assess contract value, type, and performance location to determine applicability.
- Failure to properly apply or document exemptions can result in compliance violations or contract disputes.
(a) Under the following exemptions, all or part of the requirements of E.O. 11246 may be excluded from a contract subject to E.O. 11246:
(1) National security. The agency head may determine that a contract is essential to the national security and that the award of the contract without complying with one or more of the requirements of this subpart is necessary to the national security. Upon making such a determination, the agency shall notify the Deputy Assistant Secretary in writing within 30 days.
(2) Specific contracts. The Deputy Assistant Secretary may exempt an agency from requiring the inclusion of one or more of the requirements of E.O. 11246 in any contract if the Deputy Assistant Secretary deems that special circumstances in the national interest so require. Groups or categories of contracts of the same type may also be exempted if the Deputy Assistant Secretary finds it impracticable to act upon each request individually or if group exemptions will contribute to convenience in the administration of E.O. 11246.
(b) The following exemptions apply even though a contract or subcontract contains the Equal Opportunity clause:
(1) Transactions of $10,000 or less. The Equal Opportunity clause is required to be included in prime contracts and subcontracts by 22.802(a). Individual prime contracts or subcontracts of $10,000 or less are exempt from application of the Equal Opportunity clause, unless the aggregate value of all prime contracts or subcontracts awarded to a contractor in any 12-month period exceeds, or can reasonably be expected to exceed, $10,000. (Note: Government bills of lading, regardless of amount, are not exempt.)
(2) Work outside the United States. Contracts are exempt from the requirements of E.O. 11246 for work performed outside the United States by employees who were not recruited within the United States.
(3) Contracts with State or local governments. The requirements of E.O. 11246 in any contract with a State or local government (or any agency, instrumentality, or subdivision thereof) shall not be applicable to any agency, instrumentality, or subdivision of such government that does not participate in work on or under the contract.
(4) Work on or near Indian reservations. It shall not be a violation of E.O. 11246 for a contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation. This applies to that area where a person seeking employment could reasonably be expected to commute to and from in the course of a work day. Contractors extending such a preference shall not, however, discriminate among Indians on the basis of religion, sex, sexual orientation, gender identity, or tribal affiliation, and the use of such preference shall not excuse a contractor from complying with E.O. 11246, rules and regulations of the Secretary of Labor, and applicable clauses in the contract.
(5) Facilities not connected with contracts. The Deputy Assistant Secretary may exempt from the requirements of E.O. 11246 any of a contractor’s facilities that the Deputy Assistant Secretary finds to be in all respects separate and distinct from activities of the contractor related to performing the contract, provided, that the Deputy Assistant Secretary also finds that the exemption will not interfere with, or impede the effectiveness of, E.O. 11246.
(6) Indefinite-quantity contracts. With respect to indefinite-quantity contracts and subcontracts, the Equal Opportunity clause applies unless the contracting officer has reason to believe that the amount to be ordered in any year under the contract will not exceed $10,000. The applicability of the Equal Opportunity clause shall be determined by the contracting officer at the time of award for the firstyear, and annually thereafter for succeeding years, if any. Notwithstanding the above, the Equal Opportunity clause shall be applied to the contract whenever the amount of a single order exceeds $10,000. Once the Equal Opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration regardless of the amounts ordered, or reasonably expected to be ordered, in anyyear.
(7) Contracts with religious entities. Pursuant to E.O. 13279, Section 202 of E.O. 11246, shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in the order.
(c) To request an exemption under paragraph (a)(2) or (b)(5) of this section, the contracting officer shall submit, under agency procedures, a detailed justification for omitting all, or part of, the requirements of E.O. 11246. Requests for exemptions under paragraph (a)(2) or (b)(5) of this section shall be submitted to the Deputy Assistant Secretary for approval.
(d) The Deputy Assistant Secretary may withdraw the exemption for a specific contract, or group of contracts, if the Deputy Assistant Secretary deems that such action is necessary and appropriate to achieve the purposes of E.O. 11246. Such withdrawal shall not apply-
(1) To contracts awarded before the withdrawal; or
(2) To any sealed bid contract (including restricted sealed bidding), unless the withdrawal is made more than 10 days before the bid opening date.