On April 10, the Federal Acquisition Regulatory Council issued an interim rule “amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O. 13672) . . . and a final rule issued by the Department of Labor.” As we previously blogged, Department of Labor’s (DOL’s) final rule implements E.O. 13672 and effectively “prohibit[s] discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.” Despite the April 10 issuance of this interim rule, the DOL regulation actually became effective on April 8 of this year.
The interim rule “inserts ‘sexual orientation, gender identity’ between ‘sex’ and ‘or national origin’ wherever they appear within FAR subpart 22.8 and the clauses that are prescribed in FAR subpart 22.8.” Notably, neither the FAR’s interim rule nor the DOL regulations define the terms “sexual orientation” or “gender identity.” Instead, the FAR Council points to materials published by the Office of Federal Contract Compliance Programs’ (OFCCP) “to assist the contractor community.” In turn, OFCCP defines “gender identity” as “one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.” OFCCP defines “sexual orientation” as “an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.”
The interim rule also brought a fairly technical but unexpected update by “correct[ing] previous inadvertent errors of admission” regarding two unrelated FAR provisions. FAR clause 52.212-5(e)(1) contains a list of FAR clauses that must be “flowed down” in subcontracts for commercial items. Previously, FAR clause 52.222-21 (Prohibition of Segregated Facilities) was inadvertently omitted from that list. That clause (52.222-21) as well as FAR clause 52.222-55 (Minimum Wage) had also been inadvertently omitted from the list of FAR clauses to be flowed down to commercial-item subcontractors contained in paragraph (c) (1) of FAR Clause 52.244-6 (Subcontracts for Commercial Items).
Thus, contractors should review their subcontract agreements to ensure that these previously omitted clauses are properly included among the FAR clauses flowed down to subcontractors. Likewise, since the new LGBT protections are applicable to subcontractors, contractors should review the Equal Opportunity clause in their subcontract agreements to ensure that they are flowing down the April 2015 update of the clause.