If your business pipeline is growing and you are issuing more subcontracts of higher values, Contractors should be aware that your organization has a duty under 48 CFR §22.805 to the Office of Federal Contract Compliance Programs (OFCCP).
There are multiple considerations for Prime Contractors to consider; however, this article specifically addresses compliance with EEOC. The OFCCP is the agency that enforces laws prohibiting federal contractors from discriminating in employment on the basis of race, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. This office conducts compliance evaluations and investigates discrimination complaints. Federal Contracting Officers have a duty prior to issuing contracts of $10 million or more to request pre-award clearance, also referred to as “Equal Employment Opportunity Clearance” through the OFCCP. The National Pre-Award Registry is a tool that Federal Contracting Officers can use to verify compliance and is an exception to pre-award clearance if properly documented in the procurement file. 48 CFR §22.805 also applies to first tier subcontracts (excluding construction) and is based on the total value of the contract including any options. Prime contractors should submit the pre-award request at least thirty (30) days prior to award of the proposed subcontract valued at $10 million or more excluding construction contracts. As a prime contractor, you should coordinate quickly with your Federal Procurement Contracting Officer for pre-award clearance for the proposed subcontractor. The request to your Federal Procurement Contracting Officer must include the following details:
(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.
The Federal Contracting Officer will issue the request to the correct OFCCP office. If your proposed subcontractor is listed in the OFCCP's National Pre-award Registry as compliant, notify your Federal Contracting Officer that clearance has been validated and document for your file in a memorandum. The OFCCP may conduct a compliance evaluation using one or a combination of several investigative procedures. If the contractor is found to be non-compliant, sanctions, penalties and potential civil and criminal liabilities are potential consequences. A contractor may be debarred from future contracts, existing contracts may be cancelled, terminated or suspended or the Department of Justice may bring suit to enforce regulations, require compliance, or bring criminal action if false information has been submitted to the Department of Labor.
Redstone GCI has a team of consultants with extensive experience assisting contractors with subcontract administration and the processes and procedures that Prime contractors should employ and document for proper subcontract administration. We also have a team of HR experts that assist contractors through EEO compliance and OFCCP audits. Our team would be happy to discuss any potential issues or concerns facing your organization as it relates to these compliance areas.
