Are you subject to the Federal Acquisition Rule’s (FAR) E-Verify requirements?Many companies mistakenly think they are subject to FAR and therefore required to use the E-Verify System.
FAR sets out certain prerequisites for determining whether a government contract makes an employer subject to mandatory E-Verify Registration. For example, the contract period must be for at least 120 days and the contract value must be for at least $100,000. More importantly, however, the contract also must contain the FAR provision. Many employers seem to miss this point. They worry needlessly whether they should be using E-Verify when the clause is not in the contract. Existing contracts can be modified to include the clause, but until your contract is modified, or you receive a new contract with the FAR clause, you should not be subject to the E-verify requirement.
The contracting government official, not DHS or SSA (unless they also are the contracting agency), determines if you are subject to the requirement. In negotiating your contract, you can argue why you should not be subject in order to keep the clause out of the contract. For example, if you believe your product meets the commercially available off-the-shelf (“COTS”) exemption, try to persuade the contracting official to omit the clause from your contract in the first place.
While E-Verify is always an option for new hires, remember it can only be used for the entire workforce or employees assigned to the contract if you have a FAR clause. Using it in this context without the clause also is a violation. Many issues surrounding the FAR E-verify clause remain unsettled as this is still a relatively new regulation. The government has been addressing questions as they arise and may issue a new Memorandum of Understanding in the future. Watch this blog for the latest developments on E-verify compliance and strategy.