FAR 22.1408—Contract clause.
Plain-English Summary
FAR 22.1408 tells contracting officers when to include the Equal Opportunity for Workers with Disabilities clause, FAR 52.222-36, in solicitations and contracts. It covers the dollar threshold for coverage, the geographic exception for work and recruitment performed entirely outside the listed U.S. jurisdictions, and the waiver process when the Director of OFCCP or an agency head has waived the clause under FAR 22.1403. It also explains what to do when only some, but not all, of the clause’s terms are waived: use the basic clause with Alternate I. In practice, this section is the implementation rule that ensures disability nondiscrimination requirements are flowed into covered federal acquisitions unless a specific regulatory exception applies. For contractors, it signals when the clause will be part of the contract and therefore when compliance obligations attach. For contracting officers, it is a mandatory clause-insertion rule that must be checked during solicitation and award preparation.
Key Rules
Insert clause above threshold
Include FAR 52.222-36, Equal Opportunity for Workers with Disabilities, in solicitations and contracts that exceed or are expected to exceed $20,000. The rule applies based on the anticipated value, so the clause must be included even before award if the procurement is expected to cross the threshold.
Foreign performance exception
Do not insert the clause if both the performance of the work and the recruitment of workers will occur outside the United States and the listed U.S. jurisdictions: Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island. This exception applies only when both conditions are met.
Full waiver exception
Omit the clause when the Director of OFCCP or the agency head has waived all of the clause’s terms under FAR 22.1403(a) or 22.1403(b). A complete waiver removes the need to include the basic clause or an alternate version.
Partial waiver requires alternate
If only one or more, but not all, of the clause’s terms are waived, include the basic clause with Alternate I. This preserves the non-waived requirements while tailoring the clause to the approved waiver.
Waiver authority controls
Any waiver must come from the Director of OFCCP or the agency head under the procedures in FAR 22.1403. Contracting officers may not create their own waiver or modify the clause informally outside the authorized waiver process.
Responsibilities
Contracting Officer
Determine whether the acquisition exceeds or is expected to exceed $20,000, check whether the foreign-performance exception applies, verify whether a waiver has been granted, and insert either the basic clause, Alternate I, or no clause as required.
Agency Head
When authorized under FAR 22.1403(b), approve waivers of all or part of the clause’s terms and ensure the waiver is properly documented and applied in the acquisition.
Director of OFCCP
When authorized under FAR 22.1403(a), grant waivers of all or part of the clause’s terms and communicate the scope of the waiver so the contracting officer can use the correct clause version.
Contractor
Review the solicitation and contract to identify whether the disability equal opportunity clause applies, and comply with the clause terms or any approved alternate version once incorporated into the contract.
Practical Implications
The main day-to-day task is clause screening: contracting officers must decide early whether the acquisition is over the $20,000 threshold and whether any exception or waiver applies.
A common pitfall is assuming the foreign-performance exception applies whenever work is overseas; it applies only if both the work and recruitment occur outside the specified U.S. areas.
Another frequent error is using no clause or the wrong clause version after a partial waiver; if only some terms are waived, the basic clause with Alternate I is required.
Contractors should not assume the clause is absent just because the solicitation is silent at first glance; it may be added later by amendment or appear in the final contract.
Because the rule is tied to waiver authority, any deviation from the standard clause should be supported by the actual waiver documentation, not by local practice or informal approval.
Official Regulatory Text
(a) Insert the clause at 52.222-36 , Equal Opportunity for Workers with Disabilities, in solicitations and contracts that exceed or are expected to exceed $20,000, except when- (1) Both the performance of the work and the recruitment of workers will occur outside the United States, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island; or (2) The Director of OFCCP or agency head has waived, in accordance with 22.1403 (a) or 22.1403 (b) all the terms of the clause. (b) If the Director of OFCCP or agency head waives one or more (but not all) of the terms of the clause in accordance with 22.1403 (a) or 22.1403 (b), use the basic clause with its Alternate I.