FAR 22.1403—Waivers.
Plain-English Summary
FAR 22.1403 explains when and how the government may waive the requirements tied to the Equal Opportunity for Workers with Disabilities clause at 52.222-36. It covers two different waiver authorities: a waiver by the Director of the Office of Federal Contract Compliance Programs (OFCCP) when the waiver is in the national interest, and a waiver by the head of an agency when a contract is essential to national security and cannot wait for normal compliance. The section also tells contracting officers how to route waiver requests, and it explains that waivers for a class of contracts can later be withdrawn, with limits on how that withdrawal affects already-awarded contracts and sealed bidding solicitations. In practice, this section matters because it creates narrow exceptions to otherwise applicable disability nondiscrimination requirements, but only under high-level approval and documented justification. Contractors should not assume a waiver exists unless it is expressly granted, and contracting officers must follow agency procedures and timing rules carefully to avoid invalid action or protest risk.
Key Rules
OFCCP national-interest waiver
The Director of OFCCP may waive all or part of the clause at 52.222-36 for an individual contract if doing so is in the national interest. This is a discretionary exception, not a routine accommodation, and it applies only when the Director affirmatively grants it.
Class or group waivers
The Director may also waive requirements for groups or categories of contracts when individual action on each request would be impracticable and the waiver would substantially improve administrative convenience under the Act. This allows broader relief, but only when both the national-interest basis and the administrative findings are satisfied.
Agency national-security waiver
The head of an agency may waive any requirement in this subpart if the contract is essential to national security and award without compliance is necessary to that security. This authority is limited to urgent national-security circumstances and requires written notice to the Director of OFCCP within 30 days after the determination.
Contracting officer submission process
Contracting officers do not grant waivers themselves; they must submit waiver requests in accordance with agency procedures. This means the contracting officer’s role is to prepare and route the request properly, not to make the final waiver decision.
Withdrawal of class waivers
A waiver granted for a class of contracts may later be withdrawn by the Director of OFCCP whenever necessary to achieve the purposes of the Act. The withdrawal does not affect contracts already awarded before the withdrawal, preserving the validity of existing awards.
Sealed bidding timing protection
If a class waiver is withdrawn, the withdrawal does not apply to sealed-bid solicitations unless the withdrawal is issued more than 10 days before bid opening. This protects bidders from last-minute changes that would otherwise disrupt the sealed bidding process.
Responsibilities
Director of OFCCP
Decide whether to grant waivers of the disability clause for individual contracts or classes of contracts when the national-interest criteria are met. The Director may also withdraw a class waiver when necessary to further the purposes of the Act.
Head of Agency
Determine whether a contract is essential to national security and whether award without compliance is necessary to that security. If granting a waiver on that basis, provide written notice to the Director of OFCCP within 30 days.
Contracting Officer
Submit waiver requests in accordance with agency procedures and ensure the request is properly documented and routed to the appropriate approving authority. The contracting officer must not treat a waiver as effective unless it has been granted by the proper official.
Agency
Establish internal procedures for processing waiver requests and ensure national-security waiver determinations are documented and reported as required. The agency must also manage contract administration when a class waiver is withdrawn.
Contractor
Comply with the clause at 52.222-36 unless a valid waiver has been granted and is applicable to the contract. Contractors should verify waiver scope and timing before relying on any exception.
Practical Implications
Waivers are exceptional and must be expressly approved; a contractor cannot assume compliance obligations disappear just because a waiver is being discussed.
The contracting officer’s main risk is procedural error: using the wrong approval path, failing to follow agency procedures, or not documenting the basis for the request.
For national-security waivers, the 30-day written notice to OFCCP is a required follow-up step, so agencies should track the deadline carefully.
If OFCCP withdraws a class waiver, existing awarded contracts remain protected, but future awards and some pending sealed-bid solicitations may be affected.
In sealed bidding, timing matters: a withdrawal issued within 10 days of bid opening generally cannot be applied to that solicitation, so late changes can create compliance and fairness issues.
Official Regulatory Text
(a) The Director of the Office of Federal Contract Compliance Programs of the U.S. Department of Labor (Director of OFCCP), may waive the application of any or all of the terms of the clause at 52.222-36 , Equal Opportunity for Workers with Disabilities, for- (1) Any contract if a waiver is deemed to be in the national interest; or (2) Groups or categories of contracts if a waiver is in the national interest and it is- (i) Impracticable to act on each request individually; and (ii) Determined that the waiver will substantially contribute to convenience in administering the Act. (b) The head of an agency may waive any requirement in this subpart when it is determined that the contract is essential to the national security, and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the agency shall notify the Director of OFCCP in writing within 30 days. (c) The contracting officer shall submit requests for waivers in accordance with agency procedures. (d) A waiver granted for a particular class of contracts may be withdrawn for any contract within that class whenever considered necessary by the Director of OFCCP to achieve the purposes of the Act. The withdrawal shall not apply to contracts awarded before the withdrawal. The withdrawal shall not apply to solicitations under any means of sealed bidding unless it is made more than 10 days before the date set for bid opening.