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Sweeping Final Rule Amends SBA Regulations, Part 3: Procurement Center Representative Responsibilities, Size Protests, NAICS Appeals, Nonmanufacturer Rule, Adverse Impact and Construction Requirements, and the Certificate of Competency

July 11, 2016
Part 3 of Our Summary of SBA's Sweeping Amendments To Its Regulations!
On June 30, 2016, the U.S. Small Business Administration’s (SBA's) final rule amending SBA regulations to implement provisions of the National Defense Authorization Act of 2013 (NDAA 2013) became effective.
In Part 1 of our summary, which you can read here, we reviewed the changes to the HUBZone Program, Subcontracting Plans, Affiliation - Identity of Interest & Economic Dependence, Small Business Joint Ventures, Calculation of Annual Receipts, Recertification, & the SBIR/STTR Programs. In Part 2 of our summary, which you can read here, we reviewed the final rule’s changes to the rules concerning Limitations on Subcontracting.
In this edition of The GovCon Bulletin,™ we summarize the final rule's changes to the regulations on Procurement Center Representative Responsibilities, Size Protests, NAICS Appeals, Nonmanufacturer Rule, Adverse Impact and Construction Requirements, and the Certificate of Competency.  
Mark Amadeo

 
SWEEPING FINAL RULE AMENDS SBA REGULATIONS, PART 3: PROCUREMENT CENTER RESPONSIBILITIES, SIZE PROTESTS, NAICS APPEALS, NONMANUFACTURER RULE, ADVERSE IMPACT AND CONSTRUCTION REQUIREMENTS, AND THE CERTIFICATE OF COMPETENCY


Procurement Center Responsibilities

The final rule incorporates several revisions made to the Small Business Act by NDAA 2013 that are related to Procurement Center Representatives (PCRs).  Those revisions are aimed at clarifying that PCRs have the ability to review barriers to small business participation in Federal contracting and to review any bundled or consolidated solicitation or contract.  For example, the final rule added language to § 125.2(b)(1)(i)(A) and to § 125.2(b)(1)(ii) stating that PCRs advocate for the maximum practicable utilization of small business concerns in Federal contracting, including advocating against the unjustified consolidation or bundling of contract requirements.

The final rule also added a new § 125.2(b)(1)(iv), which states that PCRs will consult with the agency's Office of Small and Disadvantaged Business Utilization (OSDBU) regarding an agency's decision to convert an activity performed by a small business concern to an activity performed by a Federal employee. In addition, the final rule also added new § 125.2(b)(1)(v), which allows PCRs to receive unsolicited proposals from small business concerns and to provide those proposals to the appropriate agency's personnel for review and disposition.

The final rule also implements the elimination under NDAA 2013 of separate Breakout PCR's, which under the pre-amended regulations were responsible for recommending the breakout for competition of items and requirements which previously had not been competed. The final rule amends § 125.2(b)(1) and (2) in order to reassign the responsibilities held by BPCRs to PCRs.

The final rule also amends § 125.2(c)(1) by adding new paragraphs (vi) and (vii), which incorporate requirements under NDAA 2013 that each Federal department or agency provide opportunities for the participation of small business concerns during acquisition planning processes and in acquisition plans and that each Federal department or agency invite the participation of the appropriate OSDBU Director in acquisition planning processes and provide the Director with access to acquisition plans. .

Size Protests

SBA amended § 121.1001(a), which specifies who may initiate a size status protest. Some businesses and contracting officers found the prior language unclear because it contained a double negative, stating that any offeror that had not been eliminated for reasons not related to size could file a size protest. As amended by the final rule, § 121.1001(a) now more clearly states that any offeror that has not been eliminated from consideration for a procurement related reason, such as non-responsiveness, technical unacceptability or as outside the competitive range may initiate a protest.

In addition, the final rule added a new § 121.1001(b)(11) that authorizes the SBA's Director, Office of Government Contracting, to initiate a formal size determination in connection with eligibility for the SDVO SBC and the WOSB/EDWOSB programs.

NAICS Appeals

The SBA sought comments on the appropriate timeline for filing a NAICS code appeal. § 121.1103(b)(1) states that “[a]n appeal from a contracting officer's NAICS code or size standard designation must be served and filed within 10 calendar days after the issuance of the solicitation or amendment affecting the NAICS code or size standard.”  Most of the comments were supportive of the existing time limit so the SBA decided not to alter the timeliness rules for NAICS code appeals.

Nonmanufacturer Rule

The final rule makes several changes to regulations related to the nonmanufacturer rule. The statutory nonmanufacturer rule, found in Section 8(a)(17) of the Small Business Act, is an exception to the limitations on subcontracting and provides that a business may not be denied the opportunity to compete for a supply contract simply because it is not the actual manufacturer or processor of the product.

The final rule clarifies, in § 121.406(d), that neither the nonmanufacturer rule nor the limitations on subcontracting apply to small business set-aside contracts valued between $3,000 and $150,000.

In order to provide more clarity SBA also added new language in § 121.406(b)(4) stating that the rental of an item is a service and not a supply and will be treated as such for purposes of the nonmanufacturer rule and the limitation on subcontracting. In § 121.406(e), the SBA added additional language regarding how the nonmanufacturer rule should apply to multiple item acquisitions.

The SBA also made several changes to § 121.1203 regarding waivers to the nonmanufacturer rule. SBA amended § 121.1203(a) to specifically authorize the SBA to grant a waiver for an individual contract award after a solicitation has been issued, provided the contracting officer agrees to provide all potential offerors additional time to respond. § 121.1203(b), as amended by the final rule, allows waivers to be granted after a contract has been awarded when the contracting officer has determined that the modification is within the scope of the contract and the agency followed the regulations prior to issuance of the solicitation and properly and timely requested a waiver for any other items under the contract, where required. SBA also added § 121.1203(d), which deals with waivers to the nonmanufacturer rule for the purchase of certain software that can be readily treated, and is almost universally perceived, as a supply item rather than a service - specifically, readily available software that is generally available to both the public and private sector unmodified.

In the final rule, SBA amended § 121.201 by adding a footnote to NAICS code 511210, Software Publishers, explaining that this is the proper NAICS code to use when the government is purchasing software that is eligible for a waiver of the nonmanufacturer rule. The 2012 NAICs manual explains that this industry comprises establishments primarily engaged in computer software publishing or publishing and reproduction. Establishments in this industry carry out operations necessary for producing and distributing computer software, such as designing, providing documentation, assisting in installation, and providing support services to software purchasers. The SBA believes that this accurately reflects the type of companies that would be producing and supplying the government with the type of software eligible for a waiver.  SBA reiterated that the custom design or modification of software for the government will generally continue to be treated as a service. If the software being acquired requires any custom modifications in order to meet the needs of the government, it is not eligible for a waiver of the nonmanufacturer rule because the contractor is performing a service and is not providing a supply.

The SBA also amended § 121.406(b)(5) to make a technical correction. Section 121.406(b) addresses how a nonmanufacturer may qualify as a small business concern for a requirement to provide a manufactured product or other supply item. Before the amendment, paragraph (b)(5) stated that the SBA's Administrator or designee may waive the requirement set forth in paragraph (b)(1)(iii) that requires nonmanufacturers to supply the end item of a small business manufacturer, processor or producer made in the United States. The citation to paragraph (b)(1)(iii) was incorrect and so the SBA amended this paragraph to include the correct citation to paragraph (b)(1)(iv).

In the final rule the SBA amended § 121.406(b)(7) to clarify that SBA's waiver of the nonmanufacturer rule has no effect on requirements external to the Small Business Act which involve domestic sources of supply, such as the Buy American Act and the Trade Agreements Act.

In order to clarify whether the nonmanufacturer rule applies, or whether a general or specific waiver is attached to a procurement, SBA added a new § 121.1206 to require contracting officers to receive specific waivers prior to posting a solicitation, and also to provide notification to all potential offerors of any waivers that will be applied (whether class or specific) to a given solicitation. 

Adverse Impact and Construction Requirements

SBA amended § 124.504, which generally addresses when the SBA must conduct an adverse impact analysis for the award of an 8(a) contract. SBA is not required to perform an adverse impact analysis for new requirements. Before SBA’s amendment, paragraph (c)(1)(ii)(B) stated that “Construction contracts, by their very nature (e.g., the building of a specific structure), are deemed new requirements.” SBA clarified the definition of “new requirement” for construction contracts by specifying that generally, the building of a specific structure is considered a new requirement. However, recurring indefinite delivery or indefinite quantity (IDIQ) procurements for construction services are not considered new.

Certificate of Competency

SBA amended § 125.5(f), which addresses SBA's review of an application for the Certificate of Competency (COC) program. SBA inserted new § 125.5(f)(3) to address how SBA should review an application for a COC based on a finding of non-responsibility due to financial capacity where the applicant is the apparent successful offeror for an IDIQ task order or contract. The changes provide that the SBA's Area Director will consider the firm's maximum financial capacity and if such COC is issued, it will be for a specific amount that serves as the limit of the firm's financial capacity for that contract. The contracting officer cannot deny the award of an order or contract on the basis of financial incapacity if the firm has not reached the financial maximum identified by the Area Director.

SBA also revised 13 CFR 121.408(a), which provides the size procedures for the COC program. The revision is a technical correction. This paragraph currently refers to 13 CFR 121.1009 to explain how SBA would initiate a formal size determination; however, § 121.1009 relates to the process SBA uses to make a formal size determination. The correct regulatory reference is to 13 CFR 121.1001(b)(3)(ii), which explains how the SBA initiates a formal size determination for the COC program.

SBA also revised 13 CFR 121.409 to remove the second sentence, which stated that in an unrestricted procurement, the small business concern must supply a domestically furnished product. This sentence may or may not have been true, depending on whether or how the Buy American Act or the Trade Agreements Act apply to the procurement. The Small Business Act itself does not impose such a requirement on full and open or unrestricted procurements. 

Sweeping Final Rule Amends SBA Regulations, Part 2: Limitations on Subcontracting

June 23, 2016
Part 2 of Our Summary of SBA's Sweeping Amendments To Its Regulations!
On May 31, 2016, the U.S. Small Business Administration (SBA) published a final rule amending SBA regulationsthat can be found here and becomes effective June 30, in order to implement provisions of the National Defense Authorization Act of 2013 relating to performance requirements applicable to small business and socioeconomic program set-aside contracts and small business subcontracting.  In Part 1 of our summary, which you can read here, we reviewed the changes to the HUBZone Program, Subcontracting Plans, Affiliation - Identity of Interest & Economic Dependence, Small Business Joint Ventures, Calculation of Annual Receipts, Recertification, & the SBIR/STTR Programs.

In this edition of The GovCon Bulletin,™ we continue our review of the final rule's changes to the SBA regulations, and in particular changes to rules concerning Limitations on Subcontracting.  Part 3 will summarize the final rule's changes to the SBA's regulations on Procurement Center Representative Responsibilities, Size Protests, NAICS Appeals, Nonmanufacturer Rule, Adverse Impact and Construction Requirements, and the Certificate of Competency.  
Mark Amadeo

 
SWEEPING FINAL RULE AMENDS SBA REGULATIONS, PART 2: LIMITATIONS ON SUBCONTRACTING


Uniform Rules For Calculating the Limitations on Subcontracting

Under existing regulations, the SBA's rules contained different terms for compliance with the performance of work requirements based on the type of small business program set-aside at issue. The method for calculating compliance also varied depending on whether the acquisition was for services, supplies, general construction, or specialty trade construction. The National Defense Authorization Act of 2013 (NDAA 2013), however, made significant statutory changes to these requirements. NDAA 2013 provided one method for determining compliance that is shared by almost all applicable small business set-aside programs, but varies based on whether the contract is for services, supplies or products, general construction, specialty trade construction, or a combination of both services and supplies. Specifically, the statutory limitations under NDAA 2013 on subcontracting for full or partial small business set-aside contracts, HUBZone contracts, 8(a) BD contracts, Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) contracts, and WOSB and Economically Disadvantaged Women Owned Small Business (EDWOSB) contracts are limitations on the amount that a prime contractor spends on its subcontractors; these limitations on subcontractor expense, in turn, are calculated as a percentage of contract award amounts. In its final rule replacing 13 C.F.R. § 125.6 in its entirety, the SBA implemented the NDAA 2013 changes into its regulations. In particular, the SBA amended § 125.6(a) to replace so-called “performance of work” requirements with “limitations on subcontracting” requirements as follows: § 125.6(a)(1) and (a)(2) set the limitations on subcontracting applicable to small business set-aside contracts for either services or supplies at 50% of the award amount received by the prime contractor; § 125.6(a)(3) and (4) set the limitations on subcontracting for general and specialty trade construction contracts at 15% for general construction and 25% for specialty trade construction.

Application to Mixed Contracts

The final rule provides, in §125.6(b), that if a contract combines services and supplies the contracting officer will select the appropriate NAICS code, and that the contracting officer's selection is determinative as to which limitation on subcontracting applies. §125.6(b) also provides three examples.

Exclusion of Subcontracts To Similarly Situated Entities

Consistent with NDAA 2013, the limitations on subcontracting under §125.6(a) do not apply to payments to subcontractors that are similarly situated to the prime contractor.  However, work that a similarly situated subcontractor further subcontracts will count towards the subcontract limitation that cannot be exceeded.  §125.6(c), as set forth in the final rule, likewise, explains that work subcontracted to similarly situated entities may be excluded from a prime contractor's calculation of its limitation on subcontracting to the extent the subcontractor performs the work with its own employees. In addition, §125.6(c) includes three examples to demonstrate how a small business concern or federal agency should apply the exclusion for similarly situated entities and determine compliance with the limitations on subcontracting.

Definition of “Similarly Situated Entity”

The final rule provides, in § 125.1, an explanation of when a subcontractor is a “similarly situated entity” that includes two requirements. First, the subcontractor must have the same small business program status as the prime contractor (e.g., it must be a HubZone small business concern, an SDVOSB, an 8(a) program participant, or small business for a HUBZone requirement, SDVOSB requirement, 8(a) requirement, or small business set-aside, respectively.)  In addition, it must also be small under the same NAICS code that the prime contractor assigns to the subcontract and under which it will perform.

Request for Change In Subcontracting Limitations Applicable To Particular Industry

As provided under the final rule, § 125.6(g) discusses how to request a change in the applicable subcontracting limitation for a particular industry, including the format for the request and the information required to demonstrate that a change in percentage is necessary in order to reflect conventional industry practices.

Exemption for Small Business Set-aside Contracts Between $3,500 and $150,000

The final rule adds a new § 125.6(f) stating that the limitations on subcontracting do not apply to small business set-aside contracts between $3,500 and $150,000; § 125.6(f) also exempts subcontracts except where a prime is relying on a similarly situated entity to meet the applicable limitations on subcontracting. The limitation on subcontracting requirements continues to apply to all 8(a), HUBZone, SDVO, and WOSB/EDWOSB set-aside contract awards regardless of value, including but not limited to contracts with values between $3,500 and $150,000.

Exclusion of Similarly Situated Subcontractors From Affiliation Under Ostensible Subcontractor Rule

The final rule excludes similarly situated subcontractors from the definition of ostensible subcontractor in § 121.103(h)(4).  Under that section, ostensible subcontractors - i.e., subcontractors that perform the majority of the primary and vital contract requirements or upon whom the prime contractor is unusually reliant - are considered joint venturers and are thus affiliated with the prime contractor for size determination purposes. The SBA concluded that exclusion of similarly situated subcontractors from the affiliation rule was consistent with NDAA 2013's exception to subcontracting limitations for similarly situated subcontractors.

Subcontracting Limitations Under the 8(a) BD Program

Under the final rule, the SBA eliminated provisions in § 124.510(a) and (b) that referred to “performance of work” requirements, since those are discussed in § 125.6. Thus, to eliminate confusion and repetition, paragraph (a) directs 8(a) participants to comply with the limitations on subcontracting under § 125.6. In addition, the final rule replaced references to performance of work requirements with references to limitations on subcontracting. Lastly, although the SBA had not proposed amending an existing provision under § 124.510 permitting the SBA District Director to waive limitations on subcontracting in certain circumstances, in response to comments opposing this provision and in recognition of the fact that there is no statutory for this exemption, the final rule eliminates the provision.

Representations by SDVOSBs and Joint Venture SDVOSBs

The final rule revised § 125.15(a)(3) and (b)(3) to require companies and small business joint ventures that represent themselves as service disabled veteran-owned small businesses (SDVOSBs) to also represent that they will comply with applicable subcontracting limitations under § 125.6.

Recertification Following Merger or Acquisition

The SBA also amended § 121.404(g)(2)(ii) by adding new paragraph (D) to clarify when recertification of size is required following the merger or acquisition of a firm that submitted an offer as a small business concern.  Paragraph (D) clarifies that if the merger or acquisition occurs after offer but prior to award, the offeror must recertify its size to the contracting officer prior to award.

Minimum $500,000 Penalty

The final rule adds a penalty provision in § 125.6(h) that incorporates the penalties listed in 15 U.S.C. 645(d) for businesses that violate the limitations on subcontracting requirements, except that the fine associated with these penalties will be the greater of either $500,000 or the dollar amount spent in excess of the permitted levels for subcontracting. In addition, under § 125.6(h) a failure to comply with the spirit and intent of a subcontract with a similarly situated entity may be considered a basis for debarment on the grounds that the parties have violated the terms of a Government contract or subcontract.

Supreme Court Decision Paves the Way For Additional VA Awards To VOSBs and SDVOSBs

June 20, 2016
SUPREME COURT DECISION PAVES THE WAY FOR ADDITIONAL VA AWARDS TO VOSBs AND SDVOSBs

On June 16, 2016, the U.S. Supreme Court in Kingdomware Technologies, Inc. v. U.S., issued a rare unanimous decision in a case addressing preferences in contracting to Veteran-Owned Small Businesses (VOSBs), including Service Disabled Veteran-Owned Small Businesses (SDVOSBs), by the Department of Veteran Affairs (VA).  In a holding that expands contracting opportunities for VOSBs, including SDVOSBs, the Supreme Court held that the VA must apply the so-called “Rule of Two” to all competitive acquisitions, including those under Federal Supply Schedules (FSS).

The Veterans Benefits, Health Care, and Information Technology Act of 2006, established a “Rule of Two” that mandates that the VA restrict competition for VA contracts to service-disabled or other veteran-owned small businesses if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.  In issuing regulations implementing the Act, the VA, however, took the position that the rule did not apply to Federal Supply Schedule task or delivery orders.

In its decision, the Supreme Court recognized that the Act contained only two exceptions to the Rule of Two.  Contracting officers can use procedures other than competitive procedures to award a contract to a veteran-owned small business: (1) if the contract is worth less than the simplified acquisition threshold; or (2) if the contract is worth more than the simplified acquisition threshold but less than $5 million, the business is “a responsible source with respect to performance of such contract opportunity,” and the award can be made at “a fair and reasonable price.”  In reversing lower court decisions, the Supreme Court rejected the argument that the Rule of Two was limited to contracts necessary to fulfill VOSB contracting goals under the Act.  The Supreme Court held that the Rule of Two was mandatory, not discretionary, that the VA was required to apply the Rule of Two to all contracting determinations in order to award contracts to veteran-owned small businesses, and that Act does not allow the VA to evade the Rule of Two on the ground that it has met its contracting goals or on the ground that the VA has placed an order through the FSS.

The Supreme Court’s decision paves the way for additional contracting opportunities at the VA for VOSBs and SDVOSB’s, particularly under the VA’s FSS program, which manages 9 multiple award schedule programs, and awards 1900 contracts worth over $11 billion.  Like GSA schedule contracts, VA schedules are indefinite delivery/indefinite quantity contracts awarded to pre-approved vendors.  Thus, VOSBs, including SDVOSBs, that rely on self-certification for SDVOSB or VOSB contracts with other agencies may, if they have not already done so, wish to complete the VA’s formal Vets First verification, which is a prerequisite for any VOSB or SDVOSB awards made by the VA.

OFCCP Publishes Final Rule Prohibiting Sex Discrimination By Contractors

June 15, 2016
Join Complimentary Webinar on June 17 Discussing the Federal SBIR & STTR Programs!
On June 17, 2016, I will be providing an overview of the federal government's SBIR & STTR programs, as part of a webinar series hosted by my good friend and law firm colleague, Jennifer Schaus, Founder & Principal of Jennifer Schaus & Associates.  To register go here.
In this edition of The GovCon Bulletin, we review the final rule, published by the OFCCP this morning, that revises its Guidelines for complying with prohibitions against discrimination on the basis of sex. 
Mark Amadeo
 
OFCCP PUBLISHES FINAL RULE PROHIBITING SEX DISCRIMINATION BY CONTRACTORS

Today, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs published a final rule, which can be found
here and is effective August 15, 2016, that substantially revises its Sex Discrimination Guidelines (the “Guidelines”).  The Guidelines, at 41 CFR part 60-20, set forth obligations of contractors and subcontractors that arise under Executive Order 11246 ("E.O. 11246").  E.O. 11246 prohibits employment discrimination by contractors on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and requires them to take affirmative action to ensure that applicants and employees are treated without regard to these protected bases.  The Guidelines, as amended, focus on requirements that contractors and subcontractors and federally assisted construction contractors and subcontractors must meet to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that applicants and employees are treated without regard to their sex.
 
The Guidelines had not been updated since 1970.  Consequently, the final rule – which, as summarized below, is organized into eight sections and an Appendix – removes outdated provisions and adds, restates, reorganizes and clarifies other provisions to incorporate legal developments and to address contemporary problems in implementation.
 
The first section, at § 60-20.1, describes the rule's purpose. The section also adds a new sentence stating: “For instance, under no circumstances will a contractor's good faith efforts to comply with the affirmative action requirements of part 60-2 of this chapter be considered a violation of this part.” This is intended to address concerns that the prohibitions of sex discrimination could be read to conflict with contractors' obligations to undertake good faith efforts to expand employment opportunities for women.
 
The second section, at § 60-20.2, sets forth the general prohibition against sex discrimination, including discrimination on the bases of pregnancy, childbirth, related medical conditions, gender identity, transgender status, and sex stereotypes. It also describes employment practices that may unlawfully treat men and women disparately. Lastly, the second section describes employment practices that are unlawful if they have a disparate impact on the basis of sex and are not job-related and consistent with business necessity.
 
The third section, at § 60-20.3, describes circumstances in which disparate treatment on the basis of sex may be lawful— namely, when being a particular sex is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor's business.
 
The fourth section, at § 60-20.4, covers sex-based discrimination in compensation and provides examples of unlawful conduct. For example, contractors violate the regulation any time they pay wages, benefits, or other compensation that results in whole or in part from the application of any discriminatory compensation decision or other practice.
 
The fifth section, at § 60-20.5, prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions. The section also lists examples of “related medical conditions” and provides four examples of discriminatory practices. It also discusses application of these principles to the provision of workplace accommodations and leave.
 
The sixth section, at § 60-20.6, states that sex discrimination in the provision of fringe benefits is unlawful. The section explains that fringe benefits includes medical, hospital, accident, life insurance, retirement benefits, profit-sharing and bonus plans, leave, and other terms, conditions, and privileges of employment. Lastly, the section clarifies that the increased cost of providing a fringe benefit to members of one sex is not a defense to a contractor's failure to provide benefits equally to members of both sexes.
 
The seventh section, at § 60-20.7, prohibits employment decisions on the basis of sex-based stereotypes and describes four categories of discrimination: sex-based stereotypes based on dress, appearance, and/or behavior; adverse treatment based on gender identity or transgender status; adverse treatment based on sex stereotype about women working in a particular job, sector, or industry; and adverse treatment based on sex-based stereotypes about caregiving roles.
 
The eighth section, at § 60-20.8, prohibits sexual harassment.  The section explains that unwelcome sexual advances, requests for sexual favors, offensive remarks about a person's sex, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such the conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The section also explains that sexual harassment includes harassment based on gender identity; harassment based on pregnancy, childbirth, or related medical conditions; and harassment that is not sexual in nature but that is because of sex or sex-based stereotypes.
 
Finally, the final rule contains an Appendix that sets forth, for contractors' consideration, a number of practices that contribute to the establishment and maintenance of workplaces that are free of unlawful sex discrimination. These practices, summarized below, are not required:
  • Avoiding gender-specific job titles like “foreman” or “lineman” if alternatives are available
  • Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral
  • Providing light duty, modified job duties or assignments, or other reasonable accommodations to employees unable to perform job duties because of pregnancy, childbirth, or related medical conditions
  • Providing appropriate time off and flexible workplace policies for men and women
  • Encouraging men and women equally to engage in caregiving-related activities
  • Fostering a climate in which women are not assumed to be more likely to provide family care than men
  • Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex, such as: communicating to all personnel that harassing conduct will not be tolerated; providing anti-harassment training to all personnel; and establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.