National Interest Exemption for New Contracts Specifically to Provide Coronavirus COVID-19 Relief1

  1. Which contracts are covered by the National Interest Exemption?
  2. How do I know if my Federal contract is exempt?
  3. What constitutes a contract specifically to provide coronavirus relief?
  4. Are contractors that hold only contracts falling under the March 17, 2020, National Interest Exemption exempt from all OFCCP obligations? If not, what obligations must they follow?
  5. My company’s only federal contract is to provide services related to coronavirus relief, and thus we are covered by the coronavirus National Interest Exemption. Do we still need to file an EEO-1 form?
  6. My company received a federal contract during the period of March 17, 2020, to June 17, 2020. This contract is for providing materials related to coronavirus relief efforts, as well as materials not related to coronavirus relief efforts. Is this contract covered by the coronavirus National Interest Exemption?
  7. My company has a new contract specifically to provide coronavirus relief and has other covered federal contracts unrelated to coronavirus relief. Do I need to continue to comply with the affirmative action provisions of OFCCP’s laws, including Executive Order 11246, Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act?
  8. Does the coronavirus National Interest Exemption apply to subcontractors?
  9. Must a prime contractor include the NIE language in a subcontract specifically for coronavirus relief for the NIE to apply to the subcontract?
  10. I have a new contract for coronavirus relief efforts. Who should I contact with questions about my obligations?
  11. My company wants to assist with the coronavirus relief efforts. How can I contract with the Federal government to participate in the coronavirus emergency response?
  12. Why did OFCCP issue a NIE?
  13. If a contractor needs to request an extension to comply with their affirmative action or equal employment opportunity obligations as a result of the pandemic, should they apply for a NIE?

 

Complaints of Discrimination

  1. Will OFCCP continue to accept complaints of discrimination against contractors who have contracts related to coronavirus relief?
  2. I believe that I was discriminated against by a federal contractor providing coronavirus relief. What can I do?

 


 

 

National Interest Exemption for New Contracts Specifically to Provide Coronavirus Relief

 

1. Which contracts are covered by the National Interest Exemption?

The National Interest Exemption (NIE) Memorandum issued to Federal contracting agencies on March 17, 2020, applies to new supply & service and construction contracts entered into from March 17, 2020, to June 17, 2020, specifically to provide coronavirus relief. The NIE relates only to contracts for COVID-19 relief. As a practical matter, it will generally only impact non-contractors that enter into new contracts or subcontracts with federal agencies to provide supplies, services, or construction related to COVID-19 relief.

 


 

2. How do I know if my Federal contract is exempt?

The U.S. Department of Labor, Office of Federal Contract Compliance Programs, issued the NIE memorandum to all Federal contracting agencies notifying them of the NIE and providing language to include in new supply & service and construction contracts entered into specifically to provide coronavirus relief. If your Federal contract is exempt, it will contain the clauses in the NIE memorandum.

 


 

3. What constitutes a contract specifically to provide Coronavirus relief?

Federal contracting officers know the terms and conditions of the contracts they execute. Therefore, they are in the best position to determine what constitutes a supply & service or construction contract specifically to provide coronavirus relief and whether it is appropriate to include the alternate contract clauses in the NIE memorandum in the contract..

 


 

4. Are contractors that hold only contracts falling under the March 17, 2020, National Interest Exemption exempt from all OFCCP obligations? If not, what obligations must they follow?

While the National Interest Exemption exempts qualifying contractors from many obligations, it does not exempt them from all obligations. Contractors that qualify for the March 17, 2020, National Interest Exemption must continue to abide by the nondiscrimination and non-retaliation obligations under OFCCP’s laws – that is, they must not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or protected veteran status. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations, and may not retaliate against applicants or employees for engaging in protected activities. To this end, OFCCP will accept and investigate complaints of discrimination and/or retaliation, and all contractors must allow OFCCP access to its premises and records, as necessary, to investigate complaints and determine compliance with the law. If OFCCP determines that a violation occurred, OFCCP retains the right to seek remedies for such violations and may refer any such violations to the Office of the Solicitor for enforcement.

The March 17, 2020, National Interest Exemption exempts qualifying contractors from all other obligations under Executive Order 11246, Section 503, VEVRAA, and their implementing regulations, including the preparation and maintenance of affirmative action programs for supply and service contractors posting requirements, solicitation/advertisement requirements, and the mandatory job listing requirement under VEVRAA.

 


 

5. My company’s only federal contract is to provide services related to coronavirus relief, and thus we are covered by the coronavirus National Interest Exemption. Do we still need to file an EEO-1 form?

You are not required to file an EEO-1 form based on your federal contractor status. However, you may be required to file an EEO-1 form based on your status as a private employer. Please visit the EEOC’s website at https://www.eeoc.gov/employers/eeo1survey/whomustfile.cfm for more information on your EEO-1 filing obligations.

 

 


 

6. My company received a federal contract during the period of March 17, 2020, to June 17, 2020. This contract is for providing materials related to coronavirus relief efforts, as well as materials not related to coronavirus relief efforts. Is this contract covered by the coronavirus National Interest Exemption?

No. Only new supply & service and construction contracts solely for the specific purpose of providing Coronavirus relief are covered by the exemption.

 


 

7. My company has a new contract specifically to provide coronavirus relief and has other covered federal contracts unrelated to coronavirus relief. Do I need to continue to comply with the affirmative action provisions of OFCCP’s laws, including Executive Order 11246, Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act?

Yes. The coronavirus National Interest Exemption only applies to new supply & service and construction contracts specifically for coronavirus relief efforts. Contractors that hold any existing contracts, whether they add additional contracts related to COVID-19 or not, are required to comply with the affirmative action requirements of laws enforced by OFCCP. The NIE does not suspend any OFCCP obligations or OFCCP’s review or enforcement thereof in any way as to existing contractors. The NIE does not waive any requirements for existing contractors. The NIE does not impact any small business set-asides or other set-asides in procurement that may exist under federal law, as these are not within OFCCP’s authority to establish or enforce.

 


 

8. Does the coronavirus National Interest Exemption apply to subcontractors?

Yes, as long as the subcontractor is providing goods or services as part of a prime contract specifically for coronavirus relief that explicitly contains the alternate contract clauses set out in the March 17, 2020, NIE memorandum.

 


 

9. Must a prime contractor include the NIE language in a subcontract specifically for coronavirus relief for the NIE to apply to the subcontract?

No, as long as the prime contract specifically for Coronavirus relief explicitly contains the alternate contract clauses set out in the Coronavirus NIE memorandum, then the NIE also applies to any subcontractor providing goods or services as part of the prime contract. Prime contractors, however, may choose to also insert the alternate contract clause language into the subcontracts.

 


 

10. I have a new contract for coronavirus relief efforts. Who should I contact with questions about my obligations?

OFCCP’s website at https://www.dol.gov/ofccp contains contractor resources, frequently asked questions about new contractor obligations and information about Executive Order 11246, VEVRAA and Section 503. You may also call OFCCP’s toll-free Help Desk at 1-800-397-6251 or contact the OFCCP District Office nearest you for assistance.

 


 

11. My company wants to assist with the coronavirus relief efforts. How can I contract with the Federal government to participate in the coronavirus emergency response?

OFCCP regulates Federal contractor compliance with equal employment opportunity laws and does not award or manage federal government contracts. Businesses interested in getting Federal contracts, including those for disaster recovery efforts, can visit the Federal government's System of Award Management website to search for contract opportunities at beta.sam.gov/search?index=opp

 


 

12. Why did OFCCP issue a NIE?

In view of the special circumstances in the national interest presented by the novel coronavirus outbreak, and consistent with agency practice relating to emergency responses, OFCCP is granting a limited exemption and waiver from some of the requirements of the laws administered by OFCCP. Prior administrations granted NIEs for Hurricanes Sandy and Katrina. This NIE has a similar limited scope to those NIEs. OFCCP continues to enforce the laws and is open for business.

 


 

13. If a contractor needs to request an extension to comply with their affirmative action or equal employment opportunity obligations as a result of the pandemic, should they apply for a NIE?

If a contractor needs an extension or adjustment because of the pandemic, they cannot rely on the NIE, but instead should request an extension or adjustment because of the impact of the pandemic on their operations. Contractors should request any extensions through the Compliance Officer and Regional Office handling the compliance evaluation or complaint investigation. OFCCP has instructed its field offices to work collaboratively with contractors requesting extensions due to the novel coronavirus outbreak. Contractors may also contact OFCCP’s Ombuds Service for assistance by at stergio.marcus@dol.gov or 202-693-1174.

 


 

Complaints of Discrimination

 

1. Will OFCCP continue to accept complaints of discrimination against contractors who have contracts related to coronavirus relief?

Yes. OFCCP will continue to investigate complaints of discrimination. The agency will take into consideration all practical circumstances and exercise reasonable flexibility in investigating complaints.

 



2. I believe I was discriminated against by a federal contractor providing coronavirus relief. What can I do?

For information on how to file a complaint with OFCCP, please go to: https://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm

 


1 The term "coronavirus" as used in these Frequently Asked Questions refers specifically to the COVID-19 coronavirus.