Class Deviation from the Federal Acquisition Regulation Regarding Executive Orders 14173 and 14168.pdf

(DEVIATION FEB 2025)

Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” of January 21, 2025, revoking Executive Order 11246, “Equal Employment Opportunity”

Baseline is FAC 2025-03, published in the Federal Register on January 3, 2025, effective January 17, 2025.

Changes made in the proposed rule are shown by [additions] and deletions.

FAR Text that is unchanged is shown as asterisks.

PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 1.1—Purpose, Authority, Issuance

1.106 OMB approval under the Paperwork Reduction Act.

FAR segment OMB control No.

22.8 1250-0003

52.222-21 1250-0003

52.222-22 1250-0003

52.222-23 1250-0003

52.222-25 1250-0003

52.222-26 1250-0001 and 1250-0003

52.222-27 1250-0003

PART 2—DEFINITIONS OF WORDS AND TERMS

Subpart 2.1—Definitions

2.101 Definitions.

United States, when used in a geographic sense, means the 50

States and the District of Columbia, except as follows:

(2) [Reserved]For use in subpart 22.8, see the definition at

22.801.

PART 4—ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 4.12—Representations and Certifications

4.1202 Solicitation provision and contract clause.

(a) * * *

(18) [Reserved] 52.222-22, Previous Contracts and Compliance Reports.

(19) [Reserved] 52.222-25, Affirmative Action Compliance.

PART 14—SEALED BIDDING

Subpart 14.4—Opening of Bids and Award of Contract

14.405 Minor informalities or irregularities in bids.

(e) Execute the representations with respect to Equal

Opportunity and Affirmative Action Programs, as set forth in the clauses at 52.222-22, Previous Contracts and Compliance Reports, and 52.222-25, Affirmative Action Compliance.

PART 19—SMALL BUSINESS PROGRAMS

Subpart 19.6—Certificates of Competency and Determinations of

Responsibility

19.602 Procedures.

19.602-1 Referral.

(2) Refer the matter to the cognizant SBA Government Contracting

Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern—

(ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 22.4—Labor Standards for Contracts Involving

Construction

22.406-4 [Reserved]Apprentices and trainees.

(a) The contracting officer shall review the contractor's employment and payment records of apprentices and trainees made available pursuant to the clause at 52.222-8, Payrolls and Basic

Records, to ensure that the contractor has complied with the clause at 52.222-9, Apprentices and Trainees.

(b) If a contractor has classified employees as apprentices or trainees without complying with the requirements of the clause at 52.222-9, the contracting officer shall reject the classification and require the contractor to pay the affected employees at the rates applicable to the classification of the work actually performed.

22.407 Solicitation provision and contract clauses.

(4) [Reserved] 52.222-9, Apprentices and Trainees.

Subpart 22.8[Reserved]

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.204-8 Annual Representations and Certifications.

As prescribed in 4.1202(a), insert the following provision:

Annual Representations and Certifications (JAN 2025)[(DEVIATION

FEB 2025)]

(c)(1) * * *

(xiv) [Reserved]52.222-22, Previous Contracts and Compliance

Reports. This provision applies to solicitations that include the clause at 52.222-26, Equal Opportunity.

(xv) [Reserved]52.222-25, Affirmative Action Compliance. This provision applies to solicitations, other than those for construction, when the solicitation includes the clause at

52.222-26, Equal Opportunity.

52.212-3 Offeror Representations and Certifications—Commercial

Products and Commercial Services.

As prescribed in 12.301(b)(2), insert the following provision:

Offeror Representations and Certifications—Commercial Products and Commercial Services (MAY 2024)[(DEVIATION FEB 2025)]

(d) [Reserved]Representations required to implement provisions of Executive Order 11246—

(1) Previous contracts and compliance. The offeror represents that—

(i) It has, has not participated in a previous contract or subcontract subject to the Equal Opportunity clause of this solicitation; and

(ii) It has, has not filed all required compliance reports.

(2) Affirmative Action Compliance. The offeror represents that—

(i) It has developed and has on file, has not developed and does not have on file, at each establishment, affirmative action programs required by rules and regulations of the Secretary of

Labor (41 CFR parts 60-1 and 60-2), or

(ii) It has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor.

52.212-5 Contract Terms and Conditions Required To Implement

Statutes or Executive Orders—Commercial Products and Commercial

Services.

As prescribed in 12.301(b)(4), insert the following clause:

Contract Terms and Conditions Required To Implement Statutes or

Executive Orders—Commercial Products and Commercial Services

(JAN 2025)[(DEVIATION FEB 2025)]

(b) * * *

(33) [Reserved] 52.222-21, Prohibition of Segregated

Facilities (APR 2015).

(34) [Reserved] (i) 52.222-26, Equal Opportunity (SEPT 2016)

(E.O. 11246).

(ii) Alternate I (FEB 1999) of 52.222-26.

(e)(1) * * *

(ix) [Reserved]52.222-21, Prohibition of Segregated Facilities

(APR 2015).

(x) [Reserved]52.222-26, Equal Opportunity (SEP 2016) (E.O.

11246).

Alternate II (JAN 2025)[(DEVIATION FEB 2025)]. * * *

(e)(1) * * *

(ii) * * *

(I) [Reserved] 52.222-21, Prohibition of Segregated Facilities

(J) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O.

52.213-4 Terms and Conditions—Simplified Acquisitions (Other

Than Commercial Products and Commercial Services).

As prescribed in 13.302-5(d), insert the following clause:

Terms and Conditions—Simplified Acquisitions (Other Than

Commercial Products and Commercial Services)

(JAN 2025)[(DEVIATION FEB 2025)]

(1) * * *

(vii) [Reserved] 52.222-21, Prohibition of Segregated Facilities

(viii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O.

52.222-6 Construction Wage Rate Requirements.

As prescribed in 22.407(a), insert the following clause:

Construction Wage Rate Requirements (AUG 2018)[(DEVIATION FEB

2025)]

(b) * * *

(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the clause entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed.

52.222-9 [Reserved]

52.222-11 Subcontracts (Labor Standards).

Subcontracts (Labor Standards) (MAY 2014)[(DEVIATION FEB 2025)]

(b) The Contractor shall insert in any subcontracts for construction, alterations and repairs within the United States the clauses entitled—

(1) Construction Wage Rate Requirements;

(2) Contract Work Hours and Safety Standards—Overtime

Compensation (if the clause is included in this contract);

(3) [Reserved]Apprentices and Trainees;

52.222-12 Contract Termination—Debarment.

Contract Termination—Debarment (MAY 2014)[(DEVIATION FEB 2025)]

A breach of the contract clauses entitled Construction Wage Rate

Requirements, Contract Work Hours and Safety Standards—Overtime

Compensation, Apprentices and Trainees, Payrolls and Basic

Records, Compliance with Copeland Act Requirements, Subcontracts

(Labor Standards), Compliance with Construction Wage Rate

Requirements and Related Regulations, or Certification of

Eligibility may be grounds for termination of the contract, and for debarment as a Contractor and subcontractor as provided in

29 CFR 5.12.

52.222-21 [Reserved]

52.222-22 [Reserved]

52.222-23 [Reserved]

52.222-24 [Reserved]

52.222-25 [Reserved]

52.222-26 [Reserved]

52.222-27 [Reserved]

52.222-29 [Reserved]

52.244-6 Subcontracts for Commercial Products and Commercial Services.

As prescribed in 44.403, insert the following clause:

Subcontracts for Commercial Products and Commercial Services

(JAN 2025)[(DEVIATION FEB 2025)]

(c)(1) * * *

(xi) [Reserved] 52.222-21, Prohibition of Segregated Facilities

(xii) [Reserved] 52.222-26, Equal Opportunity (SEP 2016) (E.O.