Jay Blindauer
For a Federal prime or first-tier subcontractor who has at least 50 employees and an agreement valued at $50,000 or more, the deadline for submitting to the U.S. Equal Employment Opportunity Commission (“EEOC”) the EEO-1 snapshot demographic data (Component 1) report for both 2019 and 2020 is currently August 23, 2021.[1], [2] The report(s) can be filed here.
For a Federal prime contract or subcontract (regardless of tier) valued at $150,000 or more, the deadline for submitting to the U.S. Department of Labor (“DoL”) the VETS-4212 protected veteran employment report for 2020-2021 is September 30, 2021.[3], [4] The report(s) can be filed here.
It is important to the file the reports. First and foremost, it is a contract/subcontract obligation.
Performance Requirement
Specifically, FAR Clause 52.222-26 (Equal Opportunity) expressly requires that the prime file the EEO-1 report,[5] and the clause is generally required for all solicitations and contracts that exceed $10,000.[6] Further, paragraph (c)(11) requires that the clause be flowed down to applicable first-tier subcontractors.[7]
FAR Clause 52.222-37 (Employment Reports on Veterans) requires the prime to file the VET-4212 report,[8] and the clause is generally required for all solicitations and contracts where FAR Clause 52.222-35 (Equal Opportunity for Veterans) is present, which, in turn, is required where the prime contract is valued at $150,000 or more.[9] Furthermore, FAR Clause 52.222-37(g) requires that the clause be flowed down to applicable subcontractors.[10]
For construction, FAR Clause 52.222-27 (Affirmative Action Compliance Requirements for Construction) is required when the solicitation/contract includes FAR Clause 52.222-26 (Equal Opportunity), and the anticipated value is expected to exceed $10,000.[11] That clause states that “[t]he Contractor shall designate a responsible official to- . . . Submit reports as may be required by the Government[.]”[12]
Hence, where applicable, failure to file the EEO-1 or VETS-4212 report is a performance failure.
Proposing
Second, certifying compliance may be required as part of a bid or proposal. For example, FAR Clause 52.222-38 (Compliance with Veterans’ Employment Reporting Requirements) is required in solicitations where the “award will exceed the simplified acquisition threshold and the contract is not for acquisition of commercial items.”[13] That clause requires an offeror to make the following representation.
“By submission of its offer, the offeror represents that, if it is subject to the reporting requirements of 38 U.S.C. [§] 4212(d) (i.e., if it has any contract containing Federal Acquisition Regulation clause 52.222-37, Employment Reports on Veterans), it has filed the most recent VETS-4212 Report required by that clause.”[14]
Similarly, FAR Clause 52.222-22 (Previous Contracts and Compliance Reports) is required when FAR Clause 52.222-26 (Equal Opportunity) is present.[15] The clause requires the offeror to represent whether it “has” or “has not” “filed all required compliance reports[.]”[16]
Responsibility and Auditing
Third, submitting current EEO-1 and VETS-4212 reports is a contractor responsibility issue. See, e.g., Singer Furniture Co., B-231915, 88-2 CPD ¶ 53, at 1 (July 14, 1988) (“We have consistently held that a bidder’s compliance with such affirmative action requirements as contained in this solicitation is a matter of the bidder’s responsibility, rather than of bid responsiveness.”). Hence, non-compliance arguably could be a basis of a Contracting Officer finding an offeror not responsible to receive a contract award.[17] It is also worth noting that copies of recent EEO-1 and VETS-4212 reports are commonly requested as part of compliance audits, and a reporting failure may be viewed as an indicator of larger equal employment opportunity and non-discrimination compliance issues. So, at the very least, failing to file the reports creates an optical issue.
In sum, compliance is an important part of every Federal contract and subcontract, and that means paperwork and reports. Hence, where applicable, timely EEO-1 and VETS-4212 reporting is just part of the deal.
[1] See 41 C.F.R. § 60-1.7(a); https://eeocdata.org/EEO1/home/index.
[2] Exceptions are found at FAR 22.807 and 41 C.F.R. § 60-1.5.
[3] See 41 C.F.R. § 60-300.1(b); FAR 22.1303(a); 80 Fed. Reg. 38,293-38,306, No. 60 (Effective Oct. 1, 2015).
[4] Exceptions are found at FAR 22.1303 and 41 C.F.R. § 60-300.4.
[5] See FAR Clause 52.222-26(b)(8) (“The Contractor shall also file Standard Form 100 (EEO-1), or any successor form, as prescribed in 41 CFR Part 60-1. Unless the Contractor has filed within the 12 months preceding the date of contract award, the Contractor shall, within 30 days after contract award, apply to either the regional Office of Federal Contract Compliance Programs (OFCCP) or the local office of the Equal Employment Opportunity Commission for the necessary forms.”).
[6] See FAR 22.810(e).
[7] See FAR Clause 52.222-26(c)(11).
[8] See FAR Clause 52.222-37(c)
[9] See FAR 22.1310(a) and (b).
[10] See FAR Clause 52.222-37(g).
[11] See FAR 22.810(f).
[12] FAR Clause 52.222-27(n)(2).
[13] FAR 22.1310(c).
[14] FAR Clause 52.222-28.
[15] See FAR 22.810(a)(2).
[16] FAR Clause 52.222-22.
[17] See FAR Clause 52.222-26(b)(10).