FAR 52.222-23—Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for Construction.
Plain-English Summary
FAR 52.222-23 is the solicitation provision that tells construction offerors how affirmative action and equal employment opportunity requirements will apply if they receive the contract. It points the offeror to the Equal Opportunity clause and the separate construction affirmative action compliance clause, then states the minority and female participation goals that apply to the contractor’s aggregate workforce in each trade within the covered area. It explains how compliance is measured under Executive Order 11246 and 41 CFR 60-4, including the need for good-faith efforts, substantially uniform employment and training patterns, and the prohibition on shifting workers between projects or contractors solely to meet goals. The provision also requires notice to the Department of Labor’s Deputy Assistant Secretary for Federal Contract Compliance when construction subcontracts over $10,000 are awarded, and it defines the “covered area” for the solicitation and resulting contract. In practice, this provision is important because it makes the contractor’s affirmative action obligations concrete at the solicitation stage, ties compliance to actual work hours and project-level staffing practices, and creates reporting duties that can affect subcontract administration and OFCCP oversight.
Key Rules
Reference to related clauses
The provision does not stand alone; it directs the offeror to the Equal Opportunity clause and the Affirmative Action Compliance Requirements for Construction clause. Those clauses supply the operative nondiscrimination and affirmative action obligations that will govern performance.
Insert local participation goals
The contracting officer must insert the applicable minority and female participation goals for each trade. These goals apply to the contractor’s aggregate workforce in each trade on all construction work in the covered area, and different goals may apply if work is performed outside that area.
Good-faith compliance standard
Compliance is judged by the contractor’s implementation of the Equal Opportunity clause, its specific affirmative action obligations, and its efforts to meet the stated goals. The contractor is not held to a strict quota, but it must show meaningful, documented good-faith efforts.
Uniform employment and training
Minority and female employment and training hours must be substantially uniform throughout the life of the contract and in each trade. The contractor must make a good-faith effort to distribute opportunities evenly across projects rather than concentrating them only at certain times or locations.
No worker shuffling to meet goals
Transferring minority or female employees or trainees from contractor to contractor, or from project to project, solely to satisfy the goals is prohibited. Such manipulation is treated as a violation of the contract, Executive Order 11246, and the implementing regulations.
Subcontract reporting duty
Within 10 working days after awarding any construction subcontract over $10,000 at any tier, the contractor must notify the Deputy Assistant Secretary for Federal Contract Compliance and provide specified subcontractor information. This reporting requirement helps OFCCP monitor compliance across the subcontracting chain.
Covered area definition
The solicitation must identify the covered area by state, county, and city. That geographic definition determines which participation goals apply and is critical for understanding where the contractor’s affirmative action obligations are measured.
Responsibilities
Contracting Officer
Insert the applicable minority and female participation goals for each trade and define the covered area in the solicitation and resulting contract. The contracting officer must ensure the provision is completed accurately so the contractor knows which geographic goals and compliance expectations apply.
Contractor
Comply with the Equal Opportunity clause, the construction affirmative action compliance clause, and the participation goals applicable to the covered area. The contractor must maintain substantially uniform minority and female employment and training, make good-faith efforts to meet goals, avoid improper worker transfers, and provide required subcontract award notices.
Subcontractor
Follow the applicable equal employment opportunity and affirmative action requirements when performing covered construction work. Although the prime contractor has the direct notice obligation, subcontractors must still comply with the underlying nondiscrimination and affirmative action requirements flowing down to their work.
Deputy Assistant Secretary for Federal Contract Compliance / OFCCP
Receive subcontract award notifications and use them to monitor compliance with Executive Order 11246 and 41 CFR 60-4. OFCCP may review contractor practices, workforce patterns, and good-faith efforts to determine whether the contractor is meeting its obligations.
Agency / Department of Labor
Publish participation goals periodically in the Federal Register and make them available through OFCCP offices. These published goals provide the benchmark the contracting officer inserts into the solicitation.
Practical Implications
This provision is a compliance planning tool, not just boilerplate. Contractors should review the inserted goals early, because they affect recruiting, staffing, training, and subcontract administration throughout performance.
The biggest risk is treating the goals like quotas. Contractors should document outreach, recruitment, training, and hiring efforts to show good faith, especially if actual workforce percentages lag behind the goals.
Project managers and HR staff need to coordinate closely. Because compliance is measured across work hours and trades, uneven staffing or short-term project transfers can create apparent noncompliance even when the contractor is trying to meet goals.
The subcontract reporting deadline is short: 10 working days after award of any covered subcontract over $10,000 at any tier. Contractors should have a process to capture subcontract data quickly and send the notice on time.
The covered area matters. If work occurs outside the defined area, different published goals may apply, so contractors should verify the location of each project before assuming the solicitation goals control everywhere.
Official Regulatory Text
As prescribed in 22.810 (b) , insert the following provision: Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for Construction (Feb 1999) (a) The offeror’s attention is called to the Equal Opportunity clause and the Affirmative Action Compliance Requirements for Construction clause of this solicitation. (b) The goals for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows: Goals for Minority Participation for EachTrade Goals for Female Participation for EachTrade ________________ ________________ [ Contracting Officer shall insert goals ] [ Contracting Officer shall insert goals ] These goals are applicable to all the Contractor’s construction work performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, the Contractor shall apply the goals established for the geographical area where the work is actually performed. Goals are published periodically in the Federal Register in notice form, and these notices may be obtained from any Office of Federal Contract Compliance Programs office. (c) The Contractor’s compliance with Executive Order 11246, as amended, and the regulations in 41 CFR 60-4 shall be based on (1) its implementation of the Equal Opportunity clause, (2) specific affirmative action obligations required by the clause entitled "Affirmative Action Compliance Requirements for Construction," and (3) its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade. The Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor, or from project to project, for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, Executive Order 11246, as amended, and the regulations in 41 CFR 60-4 . Compliance with the goals will be measured against the total work hours performed. (d) The Contractor shall provide written notification to the Deputy Assistant Secretary for Federal Contract Compliance, U.S. Department of Labor, within 10 working days following award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the- (1) Name, address, and telephone number of the subcontractor; (2) Employer’s identification number of the subcontractor; (3) Estimated dollar amount of the subcontract; (4) Estimated starting and completion dates of the subcontract; and (5) Geographical area in which the subcontract is to be performed. (e) As used in this Notice, and in any contract resulting from this solicitation, the "covered area" is ___________ [ Contracting Officer shall insert description of the geographical areas where the contract is to be performed, giving the state, county, and city ]. (End of provision)