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May 12, 2014


Since 2010, the Office of Federal Contract Compliance Programs (OFCCP) has exerted jurisdiction over TRICARE subcontractors. TRICARE is a federal program that provides healthcare to active and retired military members and their families. Congress attempted to address the OFCCP's jurisdiction over TRICARE subcontractors when it passed the National Defense Authorization Act for Fiscal Year 2012 (NDAA). The NDAA states that a TRICARE managed care support contract may not be considered a contract for the performance of healthcare supplies or services for determining "whether network providers are subcontractors for purposes of the Federal Acquisition Regulations or any other law." However, the OFCCP refused to concede its lack of jurisdiction.

On May 7, 2014, the OFCCP issued a five year moratorium on its enforcement of the affirmative action obligations for all TRICARE subcontractors. During the moratorium period, the OFCCP will engage in outreach and technical assistance to provide greater clarity for TRICARE subcontractors' obligations under the laws administered by the OFCCP.

This moratorium does not apply to healthcare entities that participate in TRICARE as subcontractors and who are holders of prime contracts with an agency of the federal government. The moratorium also does not extend to TRICARE subcontractors that hold a separate, independent non-healthcare-related federal subcontract.

The OFCCP will continue to investigate discrimination complaints filed with the Office. If the OFCCP notifies a TRICARE subcontractor of a complaint of discrimination, the subcontractor must maintain the following records until final disposition of the complaint or any lawsuit or proceeding based on the complaint:

  • Personnel or employment records relating to the issues under investigation as a result of the complaint, including all personnel and employment records related to the complainant or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s); and
  • All personnel and employment records related to application of the employment practice that is the subject of the complaint.

If you are a TRICARE subcontractor and are undergoing a compliance evaluation, the OFCCP will close the evaluation case by June 6, 2014. Because the OFCCP has already issued its scheduling list, if a TRICARE subcontractor receives advance notification of scheduling through an OFCCP Corporate Scheduling Announcement Letter (CSAL), the subcontractor should not contact the OFCCP. Instead, the subcontractor should wait to receive the OMB approved OFCCP scheduling letter before it contacts the local OFCCP office to request that the compliance evaluation be administratively closed. A list of OFCCP's local offices may be found here.

If you have any questions about the OFCCP moratorium, please contact Thomas P. Brady at (313) 965-8291 /, David M. Cessante at (313) 965-8574 /, Cami L. Davis at (412) 394-2357 /, or your Clark Hill labor and employment attorney.

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