A substantially identical provision is contained in the regulations implementing Executive Order 11246. See 41 C.F.R. § 60-1.4(e) (“By operation of the order, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the order and the regulations in this part to include such a clause whether or not it is physically incorporated into such contracts . . . .”). Plaintiffs contend that these so-called “incorporation regulation[s]” are invalid and exceed the Secretary’s delegated legislative authority insofar as they apply to subcontracts as distinguished from prime contracts with the Government.

The Board, however, does not have jurisdiction to pass on the validity of any portion 21 The text of the incorporation regulation is as follows: “By operation of the order, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the order and the regulations in this part to include such a clause whether or not it is physically incorporated in such contracts and whether or not the contract between the agency and the contractor is witten.” 41 C.F.R. §60-1.4(e). Case 1:09-cv-01210-PLF Document 17 Filed 09/23/10 Page 35 of 50 33 of the Code of Federal Regulations which has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions.

o. EEOC Compliance. In connection with its performance of the Agreement, Theranos shall comply with the applicable provisions of Executive Order 11246 and the regulations issued pursuant thereto (generally Part 60-1 of Title 41 of the Code of Federal Regulations), unless exempted by said regulations, particularly the provisions of the Equal Opportunity Clause (41 CFR Section 60-1.4(a)), which are incorporated herein by reference; the provisions and regulations pertaining to nondiscrimination and affirmative action in employment (41 CFR Sections 60-1.4, 1.40, 1.

5, with respect to affirmative action program and plan requirements. Vendor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin.