July 5, 2020

Volume X, Number 187

July 03, 2020

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FAR Council Issues Interim Rule Implementing LGBT Protections

On April 10, the Federal Acquisition Regulatory Council issued an interim rule “amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O. 13672) . . . and a final rule issued by the Department of Labor.”  The Department of Labor’s (DOL’s) final rule implements E.O. 13672 and effectively “prohibit[s] discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.”  Despite the April 10 issuance of this interim rule, the DOL regulation actually became effective on April 8 of this year.

The interim rule “inserts ‘sexual orientation, gender identity’ between ‘sex’ and ‘or national origin’ wherever they appear within FAR subpart 22.8 and the clauses that are prescribed in FAR subpart 22.8.”  Notably, neither the FAR’s interim rule nor the DOL regulations define the terms “sexual orientation” or “gender identity.”  Instead, the FAR Council points to materials published by the Office of Federal Contract Compliance Programs’ (OFCCP) “to assist the contractor community.”  In turn, OFCCP defines “gender identity” as “one’s internal sense of one’s own gender.  It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.”  OFCCP defines “sexual orientation” as “an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender.  Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.”

The interim rule also brought a fairly technical but unexpected update by “correct[ing] previous inadvertent errors of admission” regarding two unrelated FAR provisions.  FAR clause 52.212-5(e)(1) contains a list of FAR clauses that must be “flowed down” in subcontracts for commercial items.  Previously, FAR clause 52.222-21 (Prohibition of Segregated Facilities) was inadvertently omitted from that list.  That clause (52.222-21) as well as FAR clause 52.222-55 (Minimum Wage) had also been inadvertently omitted from the list of FAR clauses to be flowed down to commercial-item subcontractors contained in paragraph (c) (1) of FAR Clause 52.244-6 (Subcontracts for Commercial Items).

Thus, contractors should review their subcontract agreements to ensure that these previously omitted clauses are properly included among the FAR clauses flowed down to subcontractors.  Likewise, since the new LGBT protections are applicable to subcontractors, contractors should review the Equal Opportunity clause in their subcontract agreements to ensure that they are flowing down the April 2015 update of the clause.

© 2020 Covington & Burling LLPNational Law Review, Volume V, Number 106


About this Author

Brandon Myers, Covington, Commercial Litigation Attorney

Brandon Myers represents clients in a broad array of high-stakes litigation matters, with particular emphases on advertising disputes, product liability and consumer protection actions.

He also counsels and represents clients in a wide range of employment law matters, in addition to maintaining an active pro bono practice.

Alan Pemberton, Covington, Litigation attorney
Senior Counsel

Alan Pemberton has practiced in the government contracts area since 1982, and chaired or co-chaired Covington’s government contracts practice from 2000 to 2016. His practice includes the full range of government contracts matters, including bid protest and other procurement litigation before GAO, agency boards, and federal and state courts and ADR tribunals. He advises large and small contractors and grantees about the full range of government proposal, performance, compliance, regulatory, suspension and debarment, transactional and legislative issues. He also directs the firm’s pro bono program as co-chair of the Public Service Committee.