the hiring of any particular job applicant or from any particular group of job applicants, and nothing herein is intended to relieve the contractor from any requirements in any statutes, Executive orders, or regulations regarding nondiscrimination in employment. (c) The reports required by paragraph (a) of this clause shall include, but not be limited to, periodic reports which shall be filed at least quarterly with the appropriate local office or, where the contractor has more than one establishment in a State, with the central office of the State employment service. Such reports shall indicate for each establishment (i) the number of individuals who were hired during the reporting period, (ii) the number of those hired who were disabled veterans, and (iii) the number of those hired who were nondisabled veterans of the Vietnam era. The contractor shall submit a report within 30 days after the end of each reporting period wherein any performance is made under this contract. The contractor shall maintain copies of the reports submitted until the expiration of 1 year after final payment under the contract, during which time they shall be made available, upon request, for examination by any authorized representatives of the contracting officer or of the Secretary of Labor. (d) Whenever the contractor becomes contractually bound by the listing provisions of this clause, he shall advise the employment service system in each State wherein he has establishments of the name and location of each such establishment in the State. As long as the contractor is contractually bound to these provisions and has so advised the State employment system, there is no need to advise the State system of subsequent contracts. The contractor may advise the State system when it is no longer bound by this contract clause. (e) This clause does not apply to the listing of employment openings which occur and are filed outside of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (f) This clause does not apply to openings which the contractor proposes to fill from within his own organization or to fill pursuant to a customary and traditional employer-union hiring arrangement. This exclusion does not apply to a particular opening once an employer decides to consider applicants outside of his own organization or employer-union arrangement for that opening. (g) As used in this clause: (1) "All suitable employment openings" includes, but is not limited to, openings which occur in the following job categories: Production and nonproduction; plant and office; laborers and mechanics; supervisory and nonsupervisory; technical; and executive, administrative, and professional openings which are compensated on a salary basis of less than $18,000 per year. The term includes full-time employment, temporary employment of more than 3 days' duration, and part-time employment. It does not include openings which the contractor proposes to fill from within his own organization or to fill pursuant to a customary and traditional employer-union hiring arrangement. (2) "Appropriate office of the State employment service system" means the local office of the Federal-State national system of public employment offices with assigned responsibility for serving the area of the establishment where the employment opening is to be filled, including the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (3) "Openings which the contractor proposes to fill from within his own organization" means employment openings for which no consideration will be given to persons outside the contractor's own organization (including any affiliates, subsidiaries, and parent companies), and includes any openings which the contractor proposes to fill from regularly established "recall" or "rehire" lists. (4) "Openings which the contractor proposes *** to fill pursuant to a customary and traditional employer-union hiring arrangement" means employment openings for which no consideration will be given to persons outside of a special hiring arrangement, including openings which the contractor proposes to fill from union halls, which is part of the customary and traditional hiring relationship which exists between the contractor and representatives of his employees. (5) "Disabled veteran" means a person entitled to disability compensation under laws administered by the Veterans Administration for a disability rated at 30 percentum or more, or a person whose discharge or release from active duty was for a disability incurred or aggravated in line of duty. (6) "Veteran of the Vietnam era" means a person (A) who (i) served on active duty with the Armed Forces for a period of more than 180 days, any part of which occurred after August 5, 1964, and was discharged or released therefrom with other than a dishonorable discharge, or (ii) was discharged or released from active duty for service-connected disability if any part of such duty was performed after August 5, 1964, and (B) who was so discharged or released within the 48 months preceding his application for employment covered by this clause. (h) If any disabled veteran or veteran of the Vietnam era believes that the contractor (or any first-tier subcontractor) has failed or refuses to comply with the provisions of this contract clause relating to giving special emphasis in employment to veterans, such veteran may file a complaint with the veterans' employment representative at a local State employment service office who will attempt to informally resolve the complaint and then refer the complaint with a report on the attempt to resolve the matter to the State office of the Veterans' Employment Service of the Department of Labor. Such complaint shall then be promptly referred through the Regional Manpower Administrator to the Secretary of Labor who shall investigate such complaint and shall take such action thereon as the facts and circumstances warrant consistent with the terms of this con-tract and the laws and regulations applicable thereto. (i) The contractor agrees to place this clause (excluding this paragraph (i)) in any subcontract directly under this contract. ARTICLE 41-PAYMENT OF INTEREST ON CONTRACTORS' CLAIMS (AUGUST 1972) (a) If an appeal is filed by the Contractor from a final decision of the Contracting Officer under the "Disputes" clause of this Contract, denying a claim arising under the Contract, simple interest on the amount of the claim determined owed by the Government shall be payable to the Contractor. Such interest shall be at the rate established by the Secretary of the Treasury pursuant to Public Law 92-41; 85 STAT 97 for the Renegotiation Board, from the date the Contractor furnishes to the Contracting Officer his written appeal pursuant to the "Disputes" clause of this Contract, to the date of (i) final judgment by a court of competent jurisdiction, or (ii) mailing to the Contractor of a supplemental agreement for execution either confirming completed negotiations between the parties or carrying out a decision of a Board of Contract Appeals. (b) Notwithstanding (a) above, (i) interest shall be applied only from the date payment was due, if such date is later than the filing of appeal; and (ii) interest shall not be paid for any period of time that the Contracting Officer determines the Contractor has unduly delayed in pursuing his remedies before a Board of Contract Appeals or a court of competent jursidiction. ARTICLE 42-INTEREST (AUGUST 1972) Notwithstanding any other provision of this Contract, unless paid within 30 days all amounts that become payable by the Contractor to the Government under this Contract (net of any applicable tax credit under the Internal Revenue Code) shall bear interest at the rate established by the Secretary of the Treasury pursuant to Public Law 92-41; 85 STAT 97 for the Renegotiation Board, from the date due until paid. Amounts shall be due upon the earliest one of (i) datefixed pursuant to this Contract, (ii) the date of the first demand for payment, (iii) the date of supplemental agreement fixing the amount, or (iv) if this Con-tract provides for revision of prices, the date of written notice to the Contractor, stating the amount of refund payable in connection with a pricing porposal or in connection with a negotiated pricing agreement not confirmed by Contract supplement. ARTICLE 43-ORDER OF PRECEDENCE The rights and obligations of the parties shall be subject to and governed by this Contract, which consists of the Schedule and the General Provisions. Should there be any inconsistency between the Schedule and General Provisions or other provisions which are made a part of this Contract by reference or otherwise, the Schedule and General Provisions shall control. Should there be any inconsistency between the Schedule and the General Provisions, the Schedule Provisions shall control. This Contract consists of a cover page, Schedule, the applicable attached general provisions. APPENDIX E SELECT COMMITTEE ON SMALL BUSINESS, HOUSE OF REPRESENTATIVES OF THE UNITED STATES, Hon. GEORGE M. STAFFORD, Chairman, Interstate Commerce Commission, DEAR MR. STAFFORD: On May 22, 1973, Mr. Fritz R. Kahn and Mr. Arthur J. Cerra of your legal staff came to my office to explain changes made in the draft definitized $650,000 contract with former Senator Gordon Allott to become Special Counsel to the Interstate Commerce Commission. Mr. Kahn and Mr. Cerra did an excellent job of explaining how the changes in the contract reflected the questions and issues that were raised at the hearings before my Subcommittee on Activities of Regulatory Agencies of the House Select Committee on Small Business. I am still not convinced that the contract is the best interests of the Interstate Commerce Commission or the public. Therefore, I would appreciate it if you could address the following questions and issues that I believe are still unanswered by the latest draft of this contract. I do not believe that Senator Allott can complete the objectives laid out in the the contract in two years. I know that there are similar and recent rate cases which were not resolved for years. I fear that the Interstate Commerce Commission will be back to the Congress in two years and state that the study is not complete, that the Interstate Commerce Commission then will state that it has already spent over a half-a-million dollars and that this effort will be down the drain if Congress does not appropriate more money so the Interstate Commerce Commission could have a finished product. This could happen a number of times and result in a contract price of closer to $2 million rather than the original $650,000. In fact, the Interstate Commerce Commission assured the House Appropriations Committee in 1972 that the F. Y. 1973 appropriation would be adequate, however, now the Interstate Commerce Commission is back asking for another $450,000 in addition for the freight rate study for use in fiscal year 1974. Cannot the Interstate Commerce Commission establish a termination date of this contract? Can the Interstate Commerce Commission cite another major rate case investigation that only took two years to complete? As you will recall, and by your testimony before the Subcommittee, Senator Allott is not knowledgeable about freight rates, that he has never conducted such an investigation, nor has he ever managed such a contract. I believe the $60,000 in compensation distorts the priorities of the freight rate investigation and the priorities of the Interstate Commerce Commission itself. No matter who the Special Counsel would be for such a study, how does the Interstate Commerce Commission justify a $60,000 salary? Could not the Interstate Commerce Commission obtain the services of a qualified individual who would be public-spirited enough to conduct this investigation for the going rate of $38,000? Are there potential conflicts of interest which are not prohibited by the draft contract terms? I refer to "Section J-Limitation Upon Outside Activity" on Page 10 of the contract. Why doesn't the line "primary business and professional activity" read only? Why can't Senator Allott, or any other Special Counsel possibly assigned to this task, give the government full time effort? In further reference to Senator Allott specifically, does the clause that reads, "Special Counsel shall not engage in the general practice of law without prejudice" mean that he can practice law for compensation as long as he determines it is not a conflict of interest? Why isn't the practice of law prohibited completely in his case? Who are these people and interests that Senator Allott would be rendering advice and offering counsel to? Is there any chance that these interests, either presently or some time in the future, might have a stake in the freight rate structure study? Do any of these interests have some connection with oil shale in Colorado who could have a substantial stake in freight rates some time in the future? Does Senator Allott foresee a time during the performance of his contract that he will be compensated by these interests for his advice or counsel? Why doesn't the contract bar his ability to be compensated for such advice and counsel? I also understand that Senator Allott is the Executor of an estate. Would you provide the Subcommittee with an inventory of that estate and provide your analysis and assurances that Senator Allott's position as Executor would not represent a conflict of interest? Can the contract be cancelled for default? Section I, Subsection (h) states that the contract could be terminated by reason of default of the contract. However, Section Q, Article 13, which would have given the government the right to inspect and evaluate the work being performed by the contractor, is deleted. Under conditions where the contract calls for no set product under any certain time frame and, moreover, where the government is prohibited from inspecting the progress of the work being performed; how can the contract be cancelled for default of the contractor? The government seems to have no protection under the contract and, as you will recall, the Subcommittee has raised this question a number of times during investigation of the contract. Where is the cost breakdown in the contract? I am referring to your letter of March 29, 1973 in which you assured me that, "Cost estimates would be shown in the definitive contract." A careful reading of the contract reveals there is no cost breakdown. I urge you to give consideration to these issues and questions before signing the definitized contract. I would appreciate answers to the questions as soon as possible as I am considering proposing an amendment to the Interstate Commerce Commission budget in the pending Transportation Appropriation bill if I am still not satisfied. |