Overview
FAR Subpart 26.5 implements 41 U.S.C. chapter 81 (the Drug-Free Workplace Act), requiring federal contractors to maintain a drug-free work environment through formal policies and employee awareness programs. It establishes that a contractor's status as a "responsible source" is contingent upon their commitment to these requirements for contracts exceeding the simplified acquisition threshold.
Key Rules
- Applicability: Applies to all contracts exceeding the Simplified Acquisition Threshold (SAT). However, it applies to all contracts regardless of value if the contractor is an individual.
- Exemptions: The subpart does not apply to:
- Acquisitions of commercial products or commercial services (FAR Part 12).
- Work performed entirely outside the United States and its outlying areas.
- Specific law enforcement undercover operations.
- Contractor Requirements: To be considered responsible, non-individual contractors must:
- Publish a statement prohibiting controlled substances in the workplace.
- Establish an ongoing drug-free awareness program.
- Require employees to notify the employer of any criminal drug statute conviction within 5 days.
- Notify the Contracting Officer of such convictions within 10 days.
- Corrective Action: Within 30 days of a conviction notice, the contractor must either take personnel action (up to termination) or require the employee to participate in a rehabilitation program.
- Enforcement: Non-compliance can lead to suspension of payments, termination for default, or suspension and debarment.
Responsibilities
- Contracting Officer (CO):
- Ensures the inclusion of FAR clause 52.226-7 in applicable solicitations and contracts.
- Determines if there is adequate evidence of non-compliance to suspend payments.
- Refers cases to the agency’s suspending and debarring official.
- May grant extensions for the 30-day implementation period in writing.
- Contractors (Entities):
- Must publish policies, provide copies to employees, and maintain "good faith efforts" to uphold a drug-free workplace.
- Must take documented action against convicted employees within 30 days.
- Individuals:
- Must agree not to engage in the unlawful use or distribution of controlled substances for the duration of the contract performance.
- Agency Head:
- Holds the exclusive, non-delegable authority to waive debarment or payment suspension if it would severely disrupt agency operations.
Practical Implications
- Compliance Burden for Small Businesses: While many commercial vendors are exempt under FAR Part 12, small businesses providing non-commercial services above the SAT must ensure they have a formal, written "Drug-Free Awareness Program." Simply having a policy is not enough; it must be "ongoing" and include information on rehabilitation resources.
- The "Good Faith" Standard: The FAR allows for suspension/debarment if the number of employee convictions indicates the contractor has failed to make a "good faith effort." This creates a liability for contractors who ignore workplace drug issues, as the government views high conviction rates as a failure of the contractor's internal management systems.
- Strict Reporting Timelines: The 5-day (employee to employer) and 10-day (employer to CO) reporting windows are very tight. Contractors must have clear internal HR protocols to ensure these legal deadlines are met to avoid being found in breach of contract.