FAR 22.8—Subpart 22.8

Scope of subpart.

FAR 22.800 is the scope statement for the FAR subpart on nondiscrimination in employment by contractors and subcontractors. It tells readers that this subpart is about the policies and procedures federal agencies use to ensure equal employment opportunity and prevent unlawful employment discrimination in federal contracting. In practical terms, it frames the rules that apply to contractor and subcontractor employment practices, including how the Government expects contractors to avoid discriminatory treatment in hiring, compensation, promotion, training, and other terms and conditions of employment. Because this is a scope provision rather than a detailed operative rule, it does not itself impose a specific contract clause or reporting duty; instead, it signals that the subpart will govern the Government’s nondiscrimination requirements for contractor labor practices. For contractors, it is a reminder that employment practices are part of contract compliance, not just internal HR policy. For contracting officers and agency staff, it identifies the regulatory area that must be applied when administering contracts subject to these nondiscrimination requirements.

Definitions.

FAR 22.801 is the definitions section for Subpart 22.8, which implements the equal employment opportunity requirements tied to Executive Order 11246. It tells contractors, contracting officers, and compliance personnel exactly how to interpret the key terms used throughout the subpart, including affirmative action program, compliance evaluation, contractor, deputy assistant secretary, Equal Opportunity clause, E.O. 11246, gender identity, prime contractor, recruiting and training agency, sexual orientation, site of construction, subcontract, subcontractor, first-tier subcontractor, and United States. These definitions matter because they determine who is covered, what obligations apply, where those obligations apply, and how OFCCP enforcement and compliance reviews are conducted. In practice, this section is the foundation for deciding whether a contract or subcontract is subject to E.O. 11246, whether the Equal Opportunity clause must be included, and which entities may be reviewed or held responsible for compliance. It also incorporates current OFCCP interpretations for gender identity and sexual orientation, which affects contractor nondiscrimination and affirmative action obligations. Because many of the terms are broad and include both current and former holders of contracts or subcontracts, the definitions have continuing compliance significance beyond award and performance.

General.

FAR 22.802 is the core policy statement connecting federal procurement to the Equal Opportunity clause under Executive Order 11246, as amended. It explains that agencies must include the clause in all nonexempt contracts and subcontracts, and must actively enforce compliance with the Secretary of Labor’s regulations. The section also identifies the protected bases covered by the order—race, color, religion, sex, sexual orientation, gender identity, and national origin—and adds the prohibition on retaliation or discrimination based on an employee’s or applicant’s inquiry, discussion, or disclosure of compensation, subject to the limited exceptions for certain job-related access to pay information and legally required disclosures. In addition, it bars agencies from entering into new contracts or approving subcontracts with persons found ineligible for noncompliance, prohibits structuring procurements to evade E.O. 11246, and directs that contractor disputes about compliance be handled under the Department of Labor’s rules and orders. In practice, this section tells contracting officers and contractors that equal employment opportunity obligations are not optional add-ons; they are mandatory contract conditions with enforcement consequences, eligibility restrictions, and a separate dispute framework outside ordinary contract administration.

Responsibilities.

FAR 22.803 explains who is responsible for administering and enforcing the equal employment opportunity requirements tied to Executive Order 11246 and the implementing regulations in this subpart. It identifies the Secretary of Labor as the official with overall authority for administration, enforcement, rulemaking, and issuance of orders needed to carry out the Executive Order. It also explains that this authority is largely delegated to the Deputy Assistant Secretary, except for general rulemaking, and it assigns agency heads the duty to ensure compliance within their agencies and to cooperate with the Office of Federal Contract Compliance Programs (OFCCP). Finally, it tells contracting officers what to do when there is doubt about whether the Executive Order and its regulations apply: they must refer the issue through agency channels to the Deputy Assistant Secretary for resolution. In practice, this section is about lines of authority, internal coordination, and escalation, so contractors and contracting personnel know who decides coverage questions and who is responsible for making the program work.

Affirmative action programs.

Procedures.

FAR 22.805 explains the preaward clearance process for equal employment opportunity compliance under Executive Order 11246 for large contracts and first-tier subcontracts, and it also addresses furnishing the required EEO poster. In practice, this section tells contracting officers when they must seek OFCCP clearance before award or before a contract modification that is effectively a new award, what information must be sent, where to send it, and how much lead time to allow. It also covers special routing rules for overseas work performed by employees recruited in the United States, an exception for contractors already listed in OFCCP’s National Preaward Registry, and the timing rules under which clearance is presumed if OFCCP does not act within the stated periods. The section further provides an urgent-and-critical contract exception that can permit award without preaward clearance when delay would be unacceptable, but requires immediate postaward review and can lead to enforcement if noncompliance is later found. Finally, it requires the contracting officer to furnish the contractor the appropriate quantities of the “Equal Employment Opportunity Is The Law” poster. The practical purpose is to ensure that large federal procurements do not proceed without an opportunity for OFCCP to review the contractor’s EEO compliance posture, while still preserving flexibility for urgent acquisitions.

Inquiries.

FAR 22.806 addresses where certain questions about equal employment opportunity compliance under Executive Order 11246 must be sent. It covers two specific inquiry types: contractor questions about the status of their compliance with E.O. 11246 and contractor questions about their rights to appeal actions taken under FAR 22.809, as well as labor union questions about revising a collective bargaining agreement to comply with E.O. 11246. The section does not answer those questions itself; instead, it directs them to the proper Department of Labor officials so the matter is handled by the office with authority over the underlying civil rights and compliance issues. In practice, this means contracting personnel should not try to resolve these inquiries at the contracting office level if they fall within this section. The rule helps ensure consistent interpretation of E.O. 11246 requirements, avoids conflicting guidance, and channels sensitive compliance and labor-relations issues to the appropriate enforcement or policy office.

Exemptions.

FAR 22.807 explains when all or part of the Equal Opportunity requirements of E.O. 11246 may be excluded from a contract or subcontract, and who has authority to grant, request, or withdraw those exclusions. It covers national security exemptions, special-contract and group exemptions, automatic or conditional exemptions that apply even when the Equal Opportunity clause is in the contract, and the special treatment of small-dollar awards, work performed outside the United States, contracts with State or local governments, work on or near Indian reservations, facilities separate from contract performance, indefinite-quantity contracts, and contracts with religious entities. It also explains the process for requesting exemptions, including the contracting officer’s role in preparing a justification and submitting it for approval, and the Deputy Assistant Secretary’s authority to approve or withdraw exemptions. In practice, this section tells agencies and contractors when E.O. 11246 coverage may be limited, but it also makes clear that exemptions are narrow, must be justified, and often do not remove all equal opportunity obligations. The section matters because misapplying an exemption can lead to improper clause omission, compliance failures, or invalid assumptions about what employment practices are allowed under a contract.

Complaints.

FAR 22.808 addresses how contracting officers must handle complaints alleging violations of Executive Order 11246, the federal equal employment opportunity and affirmative action requirements for covered contractors. The section covers three core subjects: immediate referral of complaints to the Office of Federal Contract Compliance Programs (OFCCP) regional office, written notice to the complainant that the complaint has been referred, and strict confidentiality rules prohibiting disclosure to the contractor of the complainant’s identity, the complaint’s substance, or even the fact that a complaint was received. In practice, this section ensures that discrimination or affirmative action complaints are routed to the agency with enforcement authority rather than investigated informally by the contracting officer. It also protects complainants from retaliation or exposure and preserves the integrity of the OFCCP enforcement process. For contracting officers, the rule is procedural and mandatory: they are not to screen, investigate, or discuss the complaint with the contractor, but instead to forward it promptly and maintain confidentiality. For contractors, the practical effect is that they may be subject to OFCCP review without advance notice of the complaint source or details from the contracting office.

Enforcement.

FAR 22.809 explains the enforcement tools available when a contractor is found to be in violation of Executive Order 11246, the Secretary of Labor’s implementing regulations, or the applicable equal employment opportunity contract clauses. It covers the process trigger—written notification to the contracting officer by the Deputy Assistant Secretary—and the range of possible consequences, including publication of the contractor’s name, cancellation, termination, or suspension of contracts, debarment from future contracts or contract changes, and referral to the Department of Justice or the EEOC for civil or criminal action. In practice, this section is the enforcement backstop for federal equal employment opportunity and affirmative action requirements in covered contracts. It matters because violations can affect not only the current contract but also the contractor’s ability to win or keep future federal work. The section also shows that enforcement is not limited to contract administration remedies; it can escalate into broader administrative and legal sanctions. For contractors, this means compliance failures can create immediate business, reputational, and legal risk. For contracting officers, it means they may be directed to take action once the responsible labor/equal employment authority has made a formal finding and notification.

Solicitation provisions and contract clauses.

FAR 22.810 tells contracting officers exactly which equal employment opportunity and affirmative action provisions and clauses must be included in solicitations and contracts when the contract will contain FAR 52.222-26, Equal Opportunity. It covers the mandatory insertion of the segregated facilities clause, previous contracts and compliance reports provision, construction-specific notice and compliance clauses, the preaward on-site compliance evaluation provision for large nonconstruction acquisitions, the affirmative action compliance provision for nonconstruction acquisitions, the construction affirmative action compliance clause, and the visa denial notification clause for work performed in or on behalf of a foreign country. In practice, this section is a crosswalk rule: once the contracting officer determines that 52.222-26 applies, the officer must add the related companion provisions and clauses based on whether the procurement is construction or nonconstruction, the expected dollar value, and whether performance involves a foreign country. The purpose is to ensure offerors are on notice of equal opportunity obligations before award and that the resulting contract contains the enforcement and compliance tools needed to implement Executive Order 11246 requirements. For contractors, this section matters because it determines which certifications, notices, compliance reports, and affirmative action obligations may be triggered at solicitation and contract formation. For contracting officers, it is a mandatory checklist item that must be applied carefully to avoid omitting required clauses or inserting the wrong version of a clause.