Nearly all food and agricultural products fall within the definition of a COTS item. Federal contracts for COTS items are exempt from the rule. Federal contracts for food and agricultural products shipped as bulk cargo, but that otherwise would be considered COTS items, such as grains, oils and produce, are also exempt. Subcontracts that only provide supplies, such as food, are exempt from the E-Verify Federal contractor rule.
The definition of commercial items is available in the FAR Part 2, which is available online at www.acquisition.gov.
The E-Verify Federal contractor rule requires the insertion of the FAR E-Verify clause into applicable Federal contracts, which requires Federal contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a Federal contract. Beginning September 8, 2009, Federal contracts may contain the FAR E-Verify clause.
A COTS item is a commercial off the shelf item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that is available in the commercial marketplace, or with minor modifications.
You must use E-Verify if the terms and conditions of your contract or grant include the FAR E-Verify clause. Review your contract or grant for the FAR E-Verify clause and check with your contracting official if you have questions.
The E-Verify Federal contractor rule applies only to employees working in the United States, which includes the 50 States, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.
If the FAR E-Verify clause is contained in the terms and conditions of your grant then you are required to use E-Verify.
A contract is considered exempt if one or more of the following apply:
- It is for fewer than 120 days
- It is valued at less than $150,000, the simplified acquisition threshold
- All work is performed outside the United States
- It includes only commercially available off-the-shelf (COTS) items and related services
Federal contractors together with government contracting officials may bilaterally modify an existing IDIQ contract to include the FAR E-Verify clause for future orders in accordance with FAR 1.108(d)(3) if:
- The remaining period of performance extends at least six months after the E-Verify Federal contractor rule effective date
- The amount of work or number of orders expected under the remaining performance period is substantial.
Yes. The E-Verify Federal contractor rule requires most Federal contractors to use E-Verify for all new employees, regardless of whether the employees are assigned to a Federal contract. However, certain Federal contractors need only use E-Verify to verify the employment authorization of employees assigned to a covered Federal contract. These include:
- State and local governments
- Governments of federally recognized Native American tribes
- Sureties performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond
For specific instructions on exempt organizations, see the Supplemental Guide for Federal Contractors.
EXISTING FEDERAL CONTRACTS THAT CAN BE BILATERALLY MODIFIED TO INCLUDE THE FAR E-VERIFY CLAUSE