1. Is it the case that that 52.222-24 and 52.222-29 may NOT be included in solicitations for commercial items, or does it mean that 52.222-24 and 52.222-29 MAY be included in solicitations for commercial items, but their inclusion in such solicitations is NOT REQUIRED?
2. Why are 52.222-24 and 52.222-29 not applicable to commercial items?
Use of 52.222-24 and 52.222-29 is prescribed by FAR 22.810(c) and 22.810(g), respectively.
52.222-24 and 52.222-29 both reference E.O. 11246, as do the other provisions and clauses whose use is prescribed by FAR 22.810.
Other clauses whose use is prescribed by FAR 22.810 and that do not pertain to construction (52.222-21 and 52.222-26) are applicable to commercial items.
Open full Question Details
The clause matrices are not always 100% accurate, so it’s best to consult the specific prescriptions in the FAR. FAR 52.222-24 is contingent on the inclusion of 52.222-26, so the question becomes whether -26 is applicable. FAR 22.810(e) is the prescription for -26 and tells us that it's applicable in solicitations and contracts if E.O. 11246 applies. We have to check FAR 22.807(a) for exemptions. (Yes, it can seem convoluted and confusing.) There is no exemption stated for commercial contracts, which makes sense. The E.O. provides for Equal Opportunity, which should not be limited to non-commercial contracts. Note that the clause is already included in 52.212-5, which is for commercial items. The clause at 52.222-29 addresses similar equal opportunity rights, and its prescription at FAR 22.810(g) does not contain an exclusions for commercial items.