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§ 1-12.803-3 Federally assisted construction contracts.

Except as otherwise provided, each administering agency shall require the inclusion of the Equal Opportunity (Applicant) clause prescribed in § 1-12.803-4 as a condition of any grant, contract, loan, insurance, or guarantee involving federally assisted construction which is not exempt from the requirements of the Equal Opportunity (Federally Assisted Construction) clause contained therein.

§ 1-12.803-4 Equal Opportunity (Applicant) clause.

EQUAL OPPORTUNITY (APPLICANT)

(a) The applicant hereby agrees to incorporate, or cause to be incorporated, into any contract for construction work, or modification thereof, as defined in the rules and regulations of the Secretary of Labor at 41 CFR, Chapter 60, which is paid for, in whole or in part, with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following Equal Opportunity (Federally Assisted Construction) clause:

EQUAL OPPORTUNITY 1 (FEDERALLY ASSISTED CONSTRUCTION)

During the performance of this contract, the Contractor agrees as follows:

(a) The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this Equal Opportunity (Federally Assisted Construction) clause.

(b) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive considera

1 On and after Oct. 14, 1968, the term "race, color, religion, sex, or national origin" is substituted for the term "race, creed, color, or national origin," as provided by Executive Order No. 11375, Oct. 13, 1967 (32 F.R. 14303).

tion for employment without regard to race, creed, color, or national origin.

(c) The Contractor will send to each labor union or representative of workers, with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(d) The Contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(e) The Contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(f) In the event of the Contractor's noncompliance with the Equal Opportunity (Federally Assisted Construction) clause of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended, in whole or in part, and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as provided by law.

(g) The Contractor will include this Equal Opportunity (Federally Assisted Construction) clause in every subcontract or purchase order unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

(b) The applicant further agrees that it will be bound by the above Equal Opportunity (Federally Assisted Construction) clause with respect to its own employment practices

when it participates in federally assisted construction work: Provided, however, That if the applicant so participating is a State or local government, the above Equal Opportunity (Federally Assisted Construction) clause is not applicable to any agency, instrumentality, or subdivision of such government which does not participate in work on or under the contract.

(c) The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Contractors and subcontractors with the Equal Opportunity (Federally Assisted Construction) clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

(d) The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order No. 11246 of September 24, 1965, with a Contractor debarred from, or who has not demonstrated eligibility for, Government contracts and Federally assisted construction contracts pursuant to the Executive order and will carry out such sanctions and penalties for violation of the Equal Opportunity (Federally Assisted Construction) clause as may be imposed upon Contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D, of the Executive order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings the administering agency may take any or all of the following actions: Cancel, terminate, or suspend, in whole or in part, this grant [contract, loan, insurance, guarantee]; refrain from extending any further assistance to the applicant under the program with respect to which its failure or refusal occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

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§ 1-12.803-6 Adaptation of language.

Such necessary changes in language may be made in the Equal Opportunity clause (see §§ 1-12.803-2 and 1-12.803-4) as shall be appropriate to identify properly the parties and their undertakings. § 1-12.803-7 Incorporation by refer

ence.

The Equal Opportunity clause may be incorporated by reference in Government bills of lading, transportation requests, contracts for deposit of Government funds, contracts for issuing and paying U.S. savings bonds and notes, contracts and subcontracts less than $50,000, and such other contracts as the Director may designate.

§ 1-12.803-8 Incorporation by operation of the Order and agency regulations.

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. The clause may also be applied by agency regulations to every nonexempt contract where there is no written contract between the agency and the contractor. § 1-12.803-9 Notice to bidders regarding preaward equal opportunity compliance reviews.

The following notice (see § 1-12.805-— 5(d)) shall be included in the invitation for bids for each formally advertised supply contract which may result in an award of $1 million or more: PREAWARD EQUAL OPPORTUNITY COMPLIANCE REVIEWS

Where the bid of the apparent low responsible bidder is in the amount of $1 million or more, the bidder and his known first-tier subcontractors which will be awarded subcontracts of $1 million or more will be subject to full, preaward equal opportunity compliance reviews before the award of the contract for the purpose of determining whether the bidder and his subcontractors are able to comply with the provisions of the Equal Opportunity clause.

§ 1-12.803-10 Elimination of segregated facilities.2

(a) Prime contractors, subcontractors, and applicants subject to the Equal Op

On and after Oct. 14, 1968, the term "race, color, religion, or national origin" is substituted for the term "race, creed, color. or national origin."

portunity clause must ensure that the facilities provided for employees are provided in a manner that segregation on the basis of race, creed, color, or national origin cannot result. They may neither require such segregated use by explicit directives nor tolerate such use by employee custom. The obligation extends further to ensuring that employees are not assigned to perform their services at any location under the prime contractor's, subcontractor's, or applicant's (where he is himself performing federally assisted construction) control where the facilities are segregated. Such segregation at any facility provided by a prime contractor, subcontractor, or applicant is an unacceptable failure to comply with the contractor's equal opportunity obligations. Discharge of this obligation in no way whatsoever diminishes or relieves a prime contractor, subcontractor, or applicant of his responsibility to carry out fully the other nondiscrimination and affirmative action requirements of his contract.

(b) The notice to bidders prescribed in § 1-2.201(a) (29) shall be included in invitations for bids. A similar provision shall be included in requests for proposals.

(c) Agencies shall make appropriate provision for the giving of the notice prescribed by this paragraph (c) to, and for its inclusion in agreements with applicants which may involve federally assisted construction contracts and related subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause. The notice to be included in agreements with applicants is as follows:

NOTICE TO APPLICANTS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

(a) A Certification of Nonsegregated Facilities must be submitted by the applicant prior to any agreement for Federal financial assistance where the applicant will himself perform a federally assisted construction contract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause.

(b) Applicants for Federal assistance shall notify prospective federally assisted construction contractors of the Certification of Nonsegregated Facilities required, as follows:

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the provisions of the Equal Opportunity clause.

(b) Contractors receiving federally assisted construction contract awards exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause will be required to provide for the forwarding of the following notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause.

NOTICE TO PROSPECTIVE SUBCONTRATORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

(a) A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause.

(b) Contractors receiving subcontract awards exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause will be required to provide for the forwarding of this notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause.

(d) Agencies shall include a requirement for a certification of nonsegregated facilities in their (1) invitations for bids, (2) requests for proposals, (3) modifications of contracts (in the absence of a certification), (4) contracts resulting from unsolicited proposals, (5) federally assisted construction contracts of applicants, and (6) agreements with applicants. Pursuant to this requirement, bidders, offerors, recipients of contract awards and contract modifications, applicants performing federally assisted contruction contracts, federally assisted construction contractors, and their respective subcontractors, shall submit the certification prescribed by this paragraph (d) in connection with their bids, proposals, contracts, contract modifications, and agreements where awards and agreements may result in contracts and subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause. Certifications shall be individually signed except where the certification is executed by reason of the signature on the bid or offer (see § 1-2.201(a) (29)). The certifications submitted by subcontractors shall be retained in the files of the prime contractor or subcontractor receiving the certification. Where a prime contractor or subcontractor does business with a concern on a continuing basis, a single certification may be submitted periodically

(quarterly, semiannually, or annually) rather than with each transaction.

(1) Certification to be submitted by (i) bidders, (ii) offerors, (iii) contractors, (iv) subcontractors, and (v) applicants who are themselves performing federally assisted construction contracts: CERTIFICATION OF NONSEGREGATED FACILITIES (Applicable to (1) contracts, (2) subcontracts, and (3) agreements with applicants who are themselves performing federally assisted construction contracts, exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause.)

By the submission of this bid, the bidder, offeror, applicant, or subcontractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. He certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The bidder, offeror, applicant, or subcontractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. He further agrees that (except where he has obtained identical certifications from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause; that he will retain such certifications in his files; and that he will forward the following notice to such proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods):

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all subcontracts during a period (i.e., quarterly, semiannually, or annually).

NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.

(2) Certification to be submitted by federally assisted construction contractors of applicants and their subcontractors:

CERTIFICATION OF NONSEGREGATED FACILITIES

(Applicable to federally assisted construction contracts and related subcontracts exceeding $10,000 which are not exempt from the Equal Opportunity clause.)

The federally assisted construction contractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. The federally assisted construction contractor agrees that (except where he has obtained identical certifications from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause, and that he will retain such certifications in his files.

NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.

(e) The failure of a prime contractor or subcontractor to comply with the terms of his Certification of Nonsegregated Facilities or with the terms of the Equal Opportunity clause as construed by paragraph (a) of this section shall be a ground for termination or cancellation of contracts or subcontracts as provided in § 1-12.805-9.

§ 1-12.804 Exemptions. § 1-12.804-1 General.

Contracts and subcontracts are exempt from the requirements of the Equal Opportunity clause as provided in this section.

(a) Transactions of $10,000 or under. Contracts and subcontracts not exceeding $10,000, other than Government bills of lading, are exempt. In determining the applicability of this exemption to any federally assisted construction contract, or subcontract thereunder, the amount of such contract or subcontract rather than the amount of the Federal financial assistance shall govern. No agency, contractor, or subcontractor shall procure supplies or services in less than usual quantities to avoid applicability of the Equal Opportunity clause.

(b) Contracts and subcontracts for indefinite quantities. Contracts and subcontracts for indefinite quantities (including, but not limited to, open-end contracts, requirement-type contracts, Federal Supply Schedule contracts, calltype contracts, and purchase notice agreements) shall include the Equal Opportunity clause unless the purchaser has reason to believe that the amount to be ordered in any year under such contract will not exceed $10,000. The applicability of the Equal Opportunity clause shall be determined by the purchaser at the time of award for the first year, and annually thereafter for succeeding years, if any. Notwithstanding the above, the Equal Opportunity clause shall be applied to such contract whenever the amount of a single order exceeds $10,000. Once the Equal Opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration, regardless of the amounts ordered, or reasonably expected to be ordered in any year.

(c) Work outside the United States. Contracts and subcontracts are exempt from the requirements of the Equal Opportunity clause with regard to work performed outside the United States by employees who were not recruited within the United States.

(d) Contracts with State or local governments. The requirements of the Equal Opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality, or subdivision thereof) shall not be applicable to any agency, instrumentality,

or subdivision of such government which does not participate in work on or under the contract or subcontract. In addition, State and local governments are exempt from the requirements of filing the annual compliance report provided for by 1-12.805-4 and maintaining a written affirmative action compliance program prescribed by § 1-12.810.

(e) National security. Any requirement set forth in the regulations in this subpart shall not apply to any contract or subcontract whenever the head of the agency determines that such contract or subcontract is essential to the national security and that its award without complying with such requirement is necessary to the national security. Upon making such a determination, the head of the agency shall notify the Director in writing within 30 days.

(f) Sales contracts. Contracts providing for the sale of Government real and personal property are exempt from the requirements of the Equal Opportunity clause by reason of the definition of the term "Government contract" (see § 1-12.802 (m)).

§ 1-12.804-2 Specific contracts.

The Director may exempt an agency or any person from requiring the inclusion of any or all of the Equal Opportunity clause in any specific contract, or subcontract, when he deems that special circumstances in the national interest so require. The Director may also exempt groups or categories of contracts or subcontracts of the same type where he finds it impracticable to act upon each request individually or where group exemptions will contribute to convenience in the administration of the Order.

§ 1-12.804-3 Facilities not connected with contracts.

The Director may exempt from the requirements of the Equal Opportunity clause any of a prime contractor's or subcontractor's facilities which he finds to be in all respects separate and distinct from the activities of the prime contractor, or subcontractor, related to the performance of the contract, or subcontract, provided that he also finds that such an exemption will not interfere with or impede the effectuation of the Order. § 1-12.804-4 Effect of exemption.

Notwithstanding the inclusion in any contract or subcontract of the Equal Opportunity clause, the contractor or sub

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