Proposed Rule2024-00972
Department of State Acquisition Regulation: Nondiscrimination in Foreign Assistance
Primary source
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Published
January 19, 2024
Issuing agencies
State Department
Abstract
The Foreign Assistance Act of 1961 (FAA) and other related statutes, such as the FREEDOM Support Act, the Migration and Refugee Assistance Act of 1962, and the SEED Act of 1989, authorize the U.S. Department of State (Department of State, State, or Department) to provide foreign assistance that seeks to support efforts that would have the effect of protecting and promoting U.S. security, prosperity, and democratic values and shape an international environment to improve the lives of people around the world. To implement the Department's expectation of nondiscrimination against beneficiaries of Department- funded foreign assistance activities, the Department is proposing to amend its Department of State Acquisition Regulation (DOSAR) to include a new contract clause entitled "Nondiscrimination in Foreign Assistance." The proposed clause expressly states that contractors and subcontractors receiving Department-funded foreign assistance funds must not discriminate on specified bases against end-users of supplies or services (also referred to in this rule as beneficiaries and potential beneficiaries) or in certain employment decisions involving persons employed in the performance of this contract and funded in whole or in part with foreign assistance funds except where target populations are specified in the relevant statement of work (SOW) or as otherwise required by U.S. law.
Full Text
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<title>Federal Register, Volume 89 Issue 13 (Friday, January 19, 2024)</title>
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[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Proposed Rules]
[Pages 3625-3630]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00972]
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DEPARTMENT OF STATE
48 CFR Parts 625 and 652
[Public Notice: 12058]
RIN 1400-AF65
Department of State Acquisition Regulation: Nondiscrimination in
Foreign Assistance
AGENCY: Department of State.
ACTION: Notice of proposed rulemaking; request for comment.
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SUMMARY: The Foreign Assistance Act of 1961 (FAA) and other related
statutes, such as the FREEDOM Support Act, the Migration and Refugee
Assistance Act of 1962, and the SEED Act of 1989, authorize the U.S.
Department of State (Department of State, State, or Department) to
provide foreign assistance that seeks to support efforts that would
have the effect of protecting and promoting U.S. security, prosperity,
and democratic values and shape an international environment to improve
the lives of people around the world. To implement the Department's
expectation of nondiscrimination against beneficiaries of Department-
funded foreign assistance activities, the Department is proposing to
amend its Department of State Acquisition Regulation (DOSAR) to include
a new
[[Page 3626]]
contract clause entitled ``Nondiscrimination in Foreign Assistance.''
The proposed clause expressly states that contractors and
subcontractors receiving Department-funded foreign assistance funds
must not discriminate on specified bases against end-users of supplies
or services (also referred to in this rule as beneficiaries and
potential beneficiaries) or in certain employment decisions involving
persons employed in the performance of this contract and funded in
whole or in part with foreign assistance funds except where target
populations are specified in the relevant statement of work (SOW) or as
otherwise required by U.S. law.
DATES: The Department of State will accept comments until March 19,
2024.
ADDRESSES: Submit comments, identified by title of the action and
Regulatory Information Number (RIN) by any of the following methods:
<bullet> Through the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for docket DOS-2023-0014 or RIN 1400-
AF65.
<bullet> By Email: Submit electronic comments to
<a href="/cdn-cgi/l/email-protection#7e1f1d0f0b170d170a1711100e1112171d073e0d0a1f0a1b50191108"><span class="__cf_email__" data-cfemail="62030113170b110b160b0d0c120d0e0b011b2211160316074c050d14">[email protected]</span></a> and/or <a href="/cdn-cgi/l/email-protection#7d0e1e150f121819180f150f3d0e091c0918531a120b"><span class="__cf_email__" data-cfemail="1566767d677a707170677d675566617461703b727a63">[email protected]</span></a>.
<bullet> The summary of this rule can be found at
<a href="http://www.regulations.gov/DOS-2023-0014">www.regulations.gov/DOS-2023-0014</a>.
FOR FURTHER INFORMATION CONTACT: Direct requests for additional
information regarding this notice to Hilary Schroeder, who may be
reached at (202) 890-9798 or at <a href="/cdn-cgi/l/email-protection#8bf8e8e3f9e4eeefeef9e3f9cbf8ffeaffeea5ece4fd"><span class="__cf_email__" data-cfemail="40332328322f2524253228320033342134256e272f36">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The inclusion and equitable treatment of all
individuals, organizations, and communities relevant to Department
foreign assistance programs is critical to achieving effective,
comprehensive, and sustainable foreign assistance results because it
enhances the participation, contributions, and access of the target
population. As such, the Department seeks to ensure access for all
eligible beneficiaries of the target population within the scope of its
foreign assistance contracts without discrimination. Because of this
premise, which underpins all of the Department's programs, the
Department is embedding equity across its foreign affairs work and
raising the visibility of inequities globally by providing equal
opportunities for all eligible individuals, including members of
minority groups and members of other underserved communities, through
its foreign assistance programs. The Department seeks to improve the
lives of people around the world by being inclusive and equitable in
its foreign assistance efforts, including its evaluation of responses
to requests for proposal, solicitations, etc.
The Department is committed to a nondiscrimination policy in its
projects and activities and welcomes proposals irrespective of an
offeror's race, ethnicity, color, religion, sex, gender, sexual
orientation, gender identity or expression, sex characteristics,
pregnancy, national origin, disability, age, genetic information,
indigeneity, marital status, parental status, political affiliation, or
veteran's status. The Department seeks to ensure that foreign
assistance proposals that demonstrate that the recipients would not, in
implementation of a potential contract, discriminate against any
beneficiaries of foreign assistance funds based on any of the factors
listed above--unless otherwise expressly authorized in the contract or
otherwise required by U.S. law in implementation of a potential
contract. Discrimination in implementation of an award could include
adversely impacting, or denying equitable access to the benefits
provided through the contract.
Establishing clear and meaningful nondiscrimination protections in
Department of State foreign assistance awards advances U.S. foreign
policy by ensuring that U.S. foreign assistance is inclusive and
equitable by reaching all intended beneficiaries, and efficiently
accomplishing its intended objectives. U.S. foreign assistance funding
is less effective and efficient when discrimination prevents assistance
from reaching those who might most benefit from such assistance--which
hinders U.S. foreign policy by excluding individuals that the United
States intended to receive such assistance.
Nondiscrimination protections require a tangible incentive for
organizations to take affirmative steps to commit to nondiscrimination
and extend protection to employees and beneficiaries of foreign
assistance. Nondiscrimination protections send a strong signal to
people around the world that equity and inclusion are values that the
United States takes seriously. They complement and affirm other
commitments to equality in U.S. foreign policy, maximizing their
coherence and effectiveness.
Nondiscrimination principles and protections are essential in
protecting and advancing the human rights of all persons and ensuring
equitable access to foreign assistance programs. Contractors must
adhere to this requirement by performing the activities as outlined in
the contract SOWs.
In recent years, the U.S. government has issued multiple policy
pronouncements emphasizing equity, fairness, and human dignity.
Effective nondiscrimination protections for beneficiaries of foreign
assistance are a means toward achieving these objectives. For example,
in 2021, the President issued Executive Order (E.O.) 13985 on
``Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government,'' which mandates embedding equity in
government programming and decision-making processes of every
department and agency in the Executive Branch''; and in 2023, the
President issued E.O. 14091, ``Further Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government.
Furthermore, in 2011, the President issued E.O. 13563, ``Improving
Regulation and Regulatory Review,'' which, in addition to quantitative
factors, advised that the qualitative values of equity, fairness, and
human dignity are important considerations in agencies' rulemaking.
This rulemaking proposes to revise (48 CFR) DOSAR Part 625 to add
new requirements, at 625.7101, 625.7102, and 625.7103 outlining the
policy against nondiscrimination in Department of State foreign
assistance contracts. In addition, the rulemaking proposes to add a
clause at 652.225-72, entitled ``Nondiscrimination in Foreign
Assistance.'' The clause, applicable to all solicitations, contracts,
and subcontracts awarded with Department of State foreign assistance
funds at any tier, prohibits contractors and subcontractors from
discriminating against beneficiaries or potential beneficiaries (i.e.,
those individuals intended to receive the benefits of the award,
whether goods or services) or persons employed in the performance of
the award on the basis of any listed characteristics not expressly
stated in the award.
The purpose of this proposed rulemaking is to ensure effective
implementation of foreign assistance programs consistent with U.S.
foreign policy and the purposes of the FAA. Section 101 of the FAA
provides that: ``[T]he Congress reaffirms the traditional humanitarian
ideals of the American people and renews its commitment to assist
people in developing countries to eliminate hunger, poverty, illness,
and ignorance.'' 22 U.S.C. 2151(a).
The main effect of the proposed clause is to ensure that
contractors adhere to State's policy and practice of nondiscrimination
in planning foreign assistance projects and activities, and State's
policy and practice of nondiscrimination is followed through to
completion by the contractors that
[[Page 3627]]
implement them. The impact of the clause on contractors and offerors is
to require them to refrain from the discrimination described in the
clause.
Under the statutory regime governing foreign assistance, and
consistent with his responsibilities regarding the conduct of U.S.
foreign affairs, the President has broad discretion to set the terms
and conditions on which the United States provides such assistance.
Many of the authorities provided under the Foreign Assistance Act of
1961, and similar statutes, explicitly allow for the provision of
assistance ``on such terms and conditions as [the President] may
determine.'' See, e.g., section 104(c)(1) of the FAA (22 U.S.C.
2151b(c)(1)) (health assistance); section 481(a)(4) of the FAA (22
U.S.C. 2291(a)(4)) (counternarcotics and anti-crime assistance);
section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic
or political stability); section 541(a) of the FAA (22 U.S.C. 2347)
(International Military Education and Training assistance); section 551
of the FAA (22 U.S.C. 2348) (Peacekeeping Operations); section 571 of
the FAA (22 U.S.C. 2349aa) (anti-terrorism assistance); see also
section 2(c)(1) of the MRAA; section 201 of the SEED Act of 1989
(amending the FAA by inserting, inter alia, section 498b(i)).).
The FAA provides that ``[t]he President may exercise any functions
conferred upon him by this Act through such agency or officer of the
United States Government as he shall direct. The head of any such
agency or such officer may from time to time promulgate such rules and
regulations as may be necessary to carry out such functions. . . .'' 22
U.S.C. 2381(a). The Secretary of State exercises authorities under the
FAA as delegated by the President in Executive Order 12163, dated
September 29, 1979, as amended. That includes the President's authority
to ``issue and enforce regulations determining the eligibility of any
person to receive funds made available under'' the FAA. 22 U.S.C.
2381(b).
These proposed rules fall within the Department's authority,
delegated to it by the President, to set conditions on the provision of
foreign assistance, including on the implementers of such assistance.
Courts have repeatedly recognized that the President has extremely
broad discretion in the conduct of foreign affairs to allocate foreign
assistance funding for particular programs and to set the conditions on
U.S. funding to implementers of those programs. See, e.g., DKT Memorial
Fund v. USAID, 887 F.2d 275, 282 (D.C. Cir.1989); Planned Parenthood
Federation of America v. USAID, 915 F.2d 59 (2d Cir. 1990); Center for
Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002). These
courts recognized the President's broad discretion to allocate
assistance funding for particular programs and to set the conditions on
U.S. funding to non-governmental implementers of those programs. See,
e.g., Planned Parenthood v. USAID, 838 F.2d 649, 654 (2d Cir. 1988) (in
carrying out the policies under the Foreign Assistance Act, ``AID has
`broad discretionary power' to decide which, among numerous competing
projects, will be given family planning funds''); DKT, 887 F.2d at 282
(``President acted under a congressional grant of discretion as broadly
worded as any we are likely to see. . . .'').
Consistent with this broad authority, the Department and other
agencies have imposed a range of requirements on foreign assistance
awards. For example, the Department utilizes contract-specific terms
and conditions from time to time when necessitated by policy and
priorities, such as restrictions on allowed activities and
implementation areas/countries.
Moreover, the Secretary has the authority to promulgate such rules
and regulations as may be necessary to carry out his functions and the
functions of the Department of State. See 22 U.S.C. 2651a(a)(4). This
rule provides a contractual requirement for contractors to refrain from
undermining the objectives, terms, and conditions of foreign
assistance-funded activities by engaging in conduct that interferes
with its delivery to intended recipients. In addition to the
Department's authority to promulgate regulations under the FAA, the
Federal Acquisition Regulation (FAR) also expressly authorizes the
Secretary to issue ``agency acquisition regulations that implement or
supplement the FAR and incorporate, together with the FAR, agency
policies, procedures, contract clauses, solicitation provisions, and
forms that govern the contracting process or otherwise control the
relationship between the agency, including any of its suborganizations,
and contractors or prospective contractors.'' (FAR 1.301(a)(1)). Under
its acquisition authority, the Department awards contracts in the
execution of foreign assistance. Prudent and responsible exercise of
the Department's foreign assistance and acquisition authority under the
FAR require that contract terms ensure that foreign assistance reaches
its intended recipients and is not thwarted by discrimination on the
bases covered in this rule. Establishing terms and conditions for
foreign assistance contracts is a function the Department's broad
authority both to set the terms, conditions, and scope of foreign
assistance and, under the FAR, to ensure that the terms and conditions
of contracts implementing such activities are consistent with the
objectives of the foreign assistance.
Finally, in the event that any portion of the proposed rule as
finalized is declared invalid, the Department intends that the various
aspects be severable. The Department would intend the remaining
features of the policy to stand.
Regulatory Analyses
Administrative Procedure Act
This proposed rule is published for public comment pursuant to the
Office of Federal Procurement Policy Act (41 U.S.C. 1707). The
Department is publishing this proposed rulemaking for a comment period
of 60 days.
Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
Executive Orders (E.O.s) 12866, 13563, and 14094 direct agencies to
assess the costs and benefits of the intended regulation. E.O. 13563
allows that in making this assessment, an agency ``may consider (and
discuss qualitatively) values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and distributive
impacts.'' The Department has submitted this rulemaking to the Office
of Information and Regulatory Affairs (OIRA) for review. OIRA has
designated this rulemaking a ``significant regulatory action'' under
E.O. 12866, as amended.
This rule provides a benefit by promoting nondiscrimination in
Department of State foreign assistance, which itself promotes
programmatic efficiency, with minimal administrative burden anticipated
for the affected entities, Department contractors and subcontractors.
It does not require them to carry out activities beyond those in their
contract SOWs and terms and conditions. The Department anticipates that
the benefits of the proposed rule are realized by (1) ensuring that
contract solicitations and resulting contracts clearly notify that
discrimination on bases in the rule will not excuse the contractor from
performing the foreign assistance funded work; (2) by avoiding proposal
evaluation costs arising from contractors who are unwilling to provide
supplies and services to all intended recipients; (3) by helping to
[[Page 3628]]
ensure that foreign assistance funded activities reach intended
recipients and are not undermined by discriminatory exclusion on the
bases identified in the rule. If, for example, a contract specified the
provision of food parcels in a certain community, the contractor could
not, on its own, decide that only certain members of that community
should receive the food parcels or that certain members should be
excluded. This rule makes it clear at the inception of a contract
solicitation and any resulting contract the contractor is obligated to
provide services and supplies without excluding recipients on the bases
stated in the rule.
Potential costs the Department identifies for contractors and
subcontractors are for implementation guidance, to the extent that
contractors do not already proscribe discrimination as part of the
normal conduct of their business, and potential changes in hiring
practices for certain employees supporting performance of the contract.
Potential costs could include creation of policies and procedures,
initial training on implementation guidelines, and training on working
with Department contracting officer representatives and/or contracting
officers to ensure compliance. The Department requests comment on the
costs of compliance with the provisions of this proposed rule,
including estimates of hourly burdens and wages of employees that may
be required to implement the rule, should it be finalized.
The Department awards approximately 100 new contracts with foreign
assistance funds annually. Including this clause in all new contracts
funded by Department of State foreign assistance funds and all new
subcontracts thereunder provides an explicit requirement that the
Department's contractors not discriminate against any designated group
or individual (except as provided in the award or as required under
U.S. law) and is particularly important in countries where stigma and
discrimination toward certain groups is tolerated or officially
endorsed by the government. The benefits of the rule would include
expressly reinforcing notions of equity, fairness, and human dignity
under Federal Government contracts internationally.
Contractors responding to a solicitation (e.g. request for proposal
(RFP) or invitation for bid (IFB)) would further be on notice not to
include any discriminatory criteria in their responses to a
solicitation, absent specific programmatic justification in the SOW to
do so.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. It requires
a regulatory flexibility analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities.
In fiscal year 2022, 14 unique domestic small businesses received
Department foreign assistance funds under 29 individual awards. In
fiscal years 2018, 2019, 2020, and 2021, three, one, four, and six
unique small businesses received Department foreign assistance funds,
respectively. The requirement this rule would impose on small
businesses is no different than the requirement imposed on other
entities: contracts or subcontracts awarded to them will include a
clause prohibiting discrimination in the employment of persons engaged
directly in the performance of Department foreign assistance contracts
and grants and not to discriminate with respect to the intended
beneficiaries of U.S. foreign assistance, except as provided in the
award. As with all contractors, the employees of small businesses will
be expected to be mindful of the principles of equity, fairness, and
human dignity when performing the work under their contracts; as they
have always been. The Department anticipates that the additional effort
required by small businesses as a result of this proposed rule is de
minimis and will not impose more than a negligible cost. However, the
Department is requesting comment on this assumption.
In light of the above analysis, the Department of State certifies
that this proposed rule would not have a significant economic impact on
a substantial number of small entities.
Unfunded Mandates Act of 1995
The Unfunded Mandates Act of 1995 requires agencies to prepare
several analytical statements before proposing any rule that may result
in annual expenditures of $100 million or more in State, local, or
Indian Tribal governments or the private sector. Since this final rule
will not result in expenditures of this magnitude, the Department
certifies that such statements are not necessary.
Executive Orders 12372 and 13132--Federalism
This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
regulation.
Executive Order 13175--Consultation With Tribal Governments
The Department has determined that this rulemaking will not have
Tribal implications, will not impose substantial direct compliance
costs on Indian Tribal governments, and will not pre-empt Tribal law.
Accordingly, the requirements of E.O. 13175 do not apply to this
proposed rule.
Paperwork Reduction Act
The Department believes that the number of respondents submitting
reports pursuant to this rulemaking will be low, possibly close to the
10 respondents per year that would trigger the Paperwork Reduction Act.
The Department anticipates that the burden per response would be one
hour, yielding a total burden of 10 hours for this rulemaking. The
Department invites public comment on these figures. The number of
respondents and the burden hours will be added to the existing OMB
Control Number that covers information collections mandated by the
DOSAR. Therefore, the Department submits the following information:
Title of Information Collection: Department of State Acquisition
Regulation (DOSAR).
OMB Control Number: 1405-0050.
Type of Request: Revision of a currently approved collection.
Originating Office: Department of State, A/OPE.
Form Number: No form.
Respondents: Offerors and awardees of Department of State
solicitations and contracts.
Estimated Number of Respondents: 2,897, plus 10 for this rulemaking
= 2,907.
Estimated Number of Responses: 3,095, plus 10 for this rulemaking =
3,105.
Average Time per Response: 82 hours, plus one hour for this
rulemaking = 83 hours.
Total Estimated Burden Time: 253,416, plus 10 for these rulemaking
= 253,426 hours.
[[Page 3629]]
Frequency: On occasion.
Obligation to Respond: Mandatory.
List of Subjects in 48 CFR Parts 625 and 652
Government procurement.
For the reasons discussed in the preamble, the Department of State
proposes to amend 48 CFR Chapter 6 as set forth below:
PART 625--FOREIGN ACQUISITION
0
1. The Authority citation for Part 625 is revised to read as follows:
Authority: 40 U.S.C. 486(c); 22 U.S.C. 2651a, 2656.
0
2. Add subpart 625.71 to read as follows:
Subpart 625.71--Nondiscrimination in Foreign Assistance
Sec.
626.7101 Policy.
625.7102 Waivers.
625.7013 Contract clause.
Subpart 625.71--Nondiscrimination in Foreign Assistance
625.7101 Policy.
Contractors receiving Department of State foreign assistance awards
shall not discriminate on the basis of race, ethnicity, color,
religion, sex, gender, sexual orientation, gender identity or
expression, sex characteristics, pregnancy, national origin,
disability, age, genetic information, indigeneity, marital status,
parental status, political affiliation, or veteran's status within the
target population of the foreign assistance award (i.e., the
beneficiary of the contract).
625.7102 Waivers.
(a) Pursuant to the procedures in this section, the head of the
contracting activity may waive the application of the requirements at
paragraph (a)(2) of clause 652.225-72, Nondiscrimination in Foreign
Assistance, if it is determined to be in the best interest of the U.S.
government. Such determinations will take into account the totality of
the circumstances, including, but not limited to, whether the waiver is
requested as an accommodation to comply with applicable foreign laws,
edicts, or decrees, or to allow a religious corporation, association,
educational institution, or society to employ individuals of a
particular religion to carry out the activities under the award in a
manner consistent with its religious beliefs.
(b) The contractor shall submit any request for a waiver of the
requirements of the paragraph at 652.225-72(a)(2) in writing to the
contracting officer, and with sufficient justification for a
determination, prior to award or thereafter by mutual agreement between
the parties.
(c) Upon review of information submitted by the contractor, any
determination to waive the requirements at 652.225-72(a)(2) shall be
executed jointly, in writing, by the head of the contracting activity
and the requesting Bureau's Assistant Secretary or the post Chief of
Mission, or their designee.
(d) If a waiver is approved pursuant to this section, the
contracting officer shall specifically denote the inapplicability of
the paragraph at 652.225-72(a)(2) in the contract award.
(e) Upon making a determination to waive the requirements at
652.225-72(a)(2) pursuant to this section, the head of the contracting
activity shall notify the Assistant Secretary of the Bureau for
Democracy, Human Rights, and Labor, or their designee in writing within
30 days.
(f) Nothing in any such waiver approved pursuant to this section
shall negate any of the other requirements of clause 652.225-72.
625.7103 Contract clause.
The contracting officer shall insert the clause at 652.225-72,
Nondiscrimination in Foreign Assistance, in full text in all
solicitations and contracts using foreign assistance funds, including
solicitations and contracts using FAR Part 12 procedures for the
acquisition of commercial products and commercial services.
PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. The authority citation for Part 652 continues to read as follows:
Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter
1.
0
4. Add Section 652.225-72 to read as follows:
652.225-72 Nondiscrimination in Foreign Assistance.
As prescribed in 625.7103, insert the following clause:
Nondiscrimination in Foreign Assistance (Date)
(a) Unless expressly stated in the award, no contractor or
subcontractor receiving a foreign assistance award shall
discriminate on the basis of race, ethnicity, color, religion, sex,
gender, sexual orientation, gender identity or expression, sex
characteristics, pregnancy, national origin, disability, age,
genetic information, indigeneity, marital status, parental status,
political affiliation, or veteran's status against:
(1) Any end user, prospective end user, or beneficiary of the
contract supplies or services, such as, but not limited to,
discrimination by withholding, denying, or adversely impacting
equitable access to the supplies or services; or
(2) Any employee, agent, or candidate for a position, who is or
will be engaged directly in the performance of this contract and
whose work will be funded in whole or in part by funds provided
under this contract, unless expressly permitted by applicable U.S.
law.
(b) Nothing in this clause is intended to limit the ability of a
contractor to target activities toward the assistance needs of
certain populations as defined in the contract or to otherwise
comply with anti-discrimination programs.
(c) The Contractor shall inform its workforce and end users, in
their predominant language(s), of the nondiscrimination notices
required by paragraphs (d) and (f) of this clause. The Contractor
shall display the notices in prominent and accessible places
commonly available to its employees and end users.
(d) The Contractor shall notify end users and prospective end
users that the Contractor is prohibited from discriminating on the
basis of race, ethnicity, color, religion, sex, gender, sexual
orientation, gender identity or expression, sex characteristics,
pregnancy, national origin, disability, age, genetic information,
indigeneity, marital status, parental status, political affiliation,
or veteran's status within the target population of a foreign
assistance award. The notice shall include the telephone number,
email address, and mailing address of the Department of State
Inspector General to report potential violations of this clause.
(e) The Contractor is responsible for compliance by its
subcontractors with the terms and conditions of this clause,
including sanctions for noncompliance, and shall take action to
enforce them as the Contracting Officer may direct.
(f) The Contractor shall:
(1) Notify its employees and agents of:
(i) The prohibition on discrimination described in paragraph (a)
of this clause;
(ii) The contact information of the Department of State
Inspector General and the U.S. Government's Fraud, Waste, and Abuse
hotline to report violations or suspected violations of this clause;
and
(iii) The actions that will be taken against employees or agents
for violations of this clause, which may include, but are not
limited to, removal from the contract, reduction in benefits, or
termination of employment; and
(2) Take appropriate action, up to and including termination,
against employees, agents, or subcontractors that violate the
nondiscrimination requirement in paragraph (a).
(g) Notification.
(1) The Contractor shall inform the Contracting Officer and the
Department of State's Inspector General immediately of:
(i) Any credible information it receives from any source
(including host country law
[[Page 3630]]
enforcement) that alleges a Contractor employee, subcontractor,
subcontractor employee, or their agent has engaged in conduct that
violates paragraph (a) of this clause; and
(ii) Any actions taken against a Contractor employee,
subcontractor, subcontractor employee, or their agent pursuant to
this clause.
(2) If the allegation may be associated with more than one
contract, the Contractor shall inform the Contracting Officer for
the contract with the highest dollar value.
(h) Remedies. In addition to other remedies available to the
Government, the Contractor's failure to comply with the requirements
of this clause may result in any, or a combination of, the
following:
(1) Requiring the Contractor to remove a Contractor employee or
employees from the performance of the contract;
(2) Requiring the Contractor to terminate a subcontract;
(3) Suspension of contract payments until the Contractor has
taken appropriate remedial action;
(4) Loss of award fee, consistent with the award fee plan, for
the performance period in which the Government determined Contractor
noncompliance;
(5) Declining to exercise available options under the contract;
(6) Termination of the contract for default or cause, in
accordance with the termination clause of this contract; or
(7) Suspension or debarment.
(i) The Contractor shall insert this clause, including this
paragraph, in all subcontracts under this contract.
(End of clause)
Kevin E. Bryant,
Deputy Director, Office of Directives Management, Department of State.
[FR Doc. 2024-00972 Filed 1-18-24; 8:45 am]
BILLING CODE 4710-24-P
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</html>Indexed from Federal Register on January 19, 2024.
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