Subpart 23.5 - Drug-Free Workplace

Parent topic: Part 23 - Environment, Energy and Water Efficiency, Renewable Energy

Technologies, Occupational Safety, and Drug-Free Workplace

23.500 Scope of subpart.

This subpart implements 41 U.S.C. chapter 81, Drug-Free Workplace.

23.501 Applicability.

This subpart applies to contracts, including contracts with 8(a) contractors under FAR subpart 19.8

and modifications that require a justification and approval (see subpart 6.3), except contracts-

(a) At or below the simplified acquisition threshold; however, the requirements of this subpart apply

to all contracts of any value awarded to an individual;

(b) For the acquisition of commercial products and commercial services (see part 12);

(c) Performed outside the United States and its outlying areas or any part of a contract performed

outside the United States and its outlying areas;

(d) By law enforcement agencies, if the head of the law enforcement agency or designee involved

determines that application of this subpart would be inappropriate in connection with the law

enforcement agency’s undercover operations; or

(e) Where application would be inconsistent with the international obligations of the United States

or with the laws and regulations of a foreign country.

23.502 Authority.

41 U.S.C. chapter 81, Drug-Free Workplace.

23.503 Definitions.

As used in this subpartControlled substance means a controlled substance in schedules I through V of section 202 of the

Controlled Substances Act (21 U.S.C.812), and as further defined in regulation at 21

CFR1308.11–1308.15.

Conviction means a finding of guilt (including a plea of nolo contendere) or imposition of sentence,

or both, by any judicial body charged with the responsibility to determine violations of the Federal or

State criminal drug statutes.
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture,

distribution, dispensing, possession, or use of any controlled substance.

Employee means an employee of a contractor directly engaged in the performance of work under a

Government contract. "Directly engaged" is defined to include all direct cost employees and any

other contract employee who has other than a minimal impact or involvement in contract

performance.

Individual means an offeror/contractor that has no more than one employee including the

offeror/contractor.

23.504 Policy.

(a) No offeror other than an individual shall be considered a responsible source (see 9.104-1(g) and

19.602-1(a)(2)(i)) for a contract that exceeds the simplified acquisition threshold, unless it agrees

that it will provide a drug-free workplace by-

(1) Publishing a statement notifying its employees that the unlawful manufacture, distribution,

dispensing, possession, or use of a controlled substance is prohibited in the contractor’s workplace,

and specifying the actions that will be taken against employees for violations of such prohibition;

(2) Establishing an ongoing drug-free awareness program to inform its employees about-

(i) The dangers of drug abuse in the workplace;

(ii) The contractor’s policy of maintaining a drug-free workplace;

(iii) Any available drug counseling, rehabilitation, and employee assistance programs; and

(iv) The penalties that may be imposed upon employees for drug abuse violations occurring in the

workplace;

(3) Providing all employees engaged in performance of the contract with a copy of the statement

required by paragraph (a)(1) of this section;

(4) Notifying all employees in writing in the statement required by paragraph (a)(1) of this section,

that as a condition of employment on a covered contract, the employee will-

(i) Abide by the terms of the statement; and

(ii) Notify the employer in writing of the employee’s conviction under a criminal drug statute for a

violation occurring in the workplace no later than 5 days after such conviction;

(5) Notifying the contracting officer in writing within 10 days after receiving notice under

subdivision (a)(4)(ii) of this section, from an employee or otherwise receiving actual notice of such

conviction. The notice shall include the position title of the employee;

(6) Within 30 days after receiving notice under paragraph (a)(4) of this section of a conviction,

taking one of the following actions with respect to any employee who is convicted of a drug abuse

violation occurring in the workplace:
(i) Taking appropriate personnel action against such employee, up to and including termination; or

(ii) Requiring such employee to satisfactorily participate in a drug abuse assistance or rehabilitation

program approved for such purposes by a Federal, State, or local health, law enforcement, or other

appropriate agency.

(7) Making a good faith effort to maintain a drug-free workplace through implementation of

paragraphs (a)(1) through (a)(6) of this section.

(b) No individual shall be awarded a contract of any dollar value unless that individual agrees not to

engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled

substance while performing the contract.

(c) For a contract of 30 days or more performance duration, the contractor shall comply with the

provisions of paragraph (a) of this section within 30 days after contract award, unless the

contracting officer agrees in writing that circumstances warrant a longer period of time to comply.

Before granting such an extension, the contracting officer shall consider such factors as the number

of contractor employees at the worksite, whether the contractor has or must develop a drug-free

workplace program, and the number of contractor worksites. For contracts of less than 30 days

performance duration, the contractor shall comply with the provisions of paragraph (a) of this

section as soon as possible, but in any case, by a date prior to when performance is expected to be

completed.

23.505 Contract clause.

Except as provided in 23.501, insert the clause at 52.223-6, Drug-Free Workplace, in solicitations

and contracts.

23.506 Suspension of payments, termination of contract,

and debarment and suspension actions.

(a) After determining in writing that adequate evidence to suspect any of the causes at paragraph (d)

of this section exists, the contracting officer may suspend contract payments in accordance with the

procedures at 32.503-6(a)(1).

(b) After determining in writing that any of the causes at paragraph (d) of this section exist, the

contracting officer may terminate the contract for default.

(c) Upon initiating action under paragraph (a) or (b) of this section, the contracting officer shall refer

the case to the agency suspension and debarment official, in accordance with agency procedures,

pursuant to subpart 9.4.

(d) The specific causes for suspension of contract payments, termination of a contract for default, or

suspension and debarment are-

(1) The contractor has failed to comply with the requirements of the clause at 52.223-6, Drug-Free

Workplace; or
(2) The number of contractor employees convicted of violations of criminal drug statutes occurring

in the workplace indicates that the contractor has failed to make a good faith effort to provide a

drug-free workplace.

(e) A determination under this section to suspend contract payments, terminate a contract for

default, or debar or suspend a contractor may be waived by the agency head for a particular

contract, in accordance with agency procedures, only if such waiver is necessary to prevent a severe

disruption of the agency operation to the detriment of the Federal Government or the general public

(see subpart 9.4). The waiver authority of the agency head cannot be delegated.