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chase 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.

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.

§ 1-12.803-5 Subcontracts.

(a) Each nonexempt prime contractor and subcontractor under a Government contract shall include the Equal Opportunity clause prescribed in § 112.803-2 in each of their nonexempt subcontracts.

(b) Each nonexempt prime contractor and subcontractor under a federally assisted construction contract shall include in each of their nonexempt subcontracts the Equal Opportunity

ontracts the Faval Opportunity (Federally Assisted Construction) clause contained in the Equal Opportunity (Applicant) clause prescribed in $ 1-12.803-4

$ 1-12.803-9 Notice to bidders regarding

preaward equal opportunity compliance reviews.* The following notice (see $ 1-12.8055(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 subcontracto are able to comply with the provisions of the Equal Opportunity clause.

§ 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 112.803-4) as shall be appropriate to identify properly the parties and their undertakings.

$ 1-12.803-10 Elimination of segregated

facilities. ? (a) Prime contractors, subcontractors, and applicants subject to the Equal Opportunity clause must ensure that the facilities provided for employees are provided in a manner that seg. regation 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

§ 1-12.803–7 Incorporation by reference.

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

"For a document relating to this section, see Appendix— Temporary Regulations appearing at the end of Chapter 1.

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."

prime contractor, subcontractor, or ap- NOTICE TO PROSPECTIVE SUBCONTRACTORS OF plicant is an unacceptable failure to REQUIREMENT FOR CERTIFICATIONS OF NONSEcomply with the contractor's equal op GREGATED FACILITIES portunity obligations. Discharge of (a) A Certification of Nonsegregated Facilthis obligation in no way whatsoever ities must be submitted prior to the award diminishes or relieves a prime contrac

of a subcontract exceeding $10,000 which is

not exempt from the provisions of the tor, subcontractor, or applicant of his

Equal Opportunity clause. responsibility to carry out fully the

(b) Contractors receiving subcontract other nondiscrimination and affirma

awards exceeding $10,000 which are not tive action requirements of his con exempt from the provisions of the Equal tract.

Opportunity clause will be required to pro(b) (Reserved)

vide for the forwarding of this notice to

prospective subcontractors for supplies and (c) Agencies shall make appropriate

construction contracts where the subconprovision for the giving of the notice tracts exceed $10,000 and are not exempt prescribed by this paragraph (c) to, from the provisions of the Equal Opportuniand for its inclusion in agreements ty clause. with applicants which may involve (d) Agencies shall include a requirefederally assisted construction con- ment for a certification of nonsegretracts and related subcontracts ex- gated facilities in their (1) invitations ceeding $10,000 which are not exempt for bids, (2) requests for proposals, (3) from the provisions of the Equal Op- modifications of contracts (in the abportunity clause. The notice to be in sence of a certification), (4) contracts cluded in agreements with applicants resulting from unsolicited proposals, is as follows:

(5) federally assisted construction con

tracts of applicants, and (6) agreeNOTICE TO APPLICANTS OF REQUIREMENT FOR

ments with applicants. Pursuant to CERTIFICATIONS OF NONSEGREGATED FACILI

this requirement, bidders, offerors, reTIES

cipients of contract awards and con(a) A Certification of Nonsegregated Facil tract modifications, applicants perities must be submitted by the applicant forming federally assisted construcprior to any agreement for Federal financial tion contracts, federally assisted conassistance where the applicant will himself struction contractors, and their reperform a federally assisted construction

spective subcontractors, shall submit contract exceeding $10,000 which is not

the certification prescribed by this exempt from the provisions of the Equal

paragraph (d) in connection with their Opportunity clause. (b) Applicants for Federal assistance shall

bids, proposals, contracts, contract notify prospective federally assisted con

modifications, and agreements where struction contractors of the Certification of

awards and agreements may result in Nonsegregated Facilities required, as fol

contracts and subcontracts exceeding lows:

$10,000 which are not exempt from

the provisions of the Equal Opportuni. NOTICE TO PROSPECTIVE FEDERALLY ASSISTED ty clause. Certifications shall be indiCONSTRUCTION CONTRACTORS

vidually signed except where the certi(a) A Certification of Nonsegregated Facil

fication is executed by reason of the ities must be submitted prior to the award signature on the bid or offer (see 1of a federally assisted construction contract 2.201(a)(29)). The certifications subexceeding $10,000 which is not exempt from mitted by subcontractors shall be rethe provisions of the Equal Opportunity tained in the files of the prime conclause.

tractor or subcontractor receiving the (b) Contractors receiving federally assist

certification. Where a prime contraced construction contract awards exceeding

tor or subcontractor does business $10,000 which are not exempt from the pro

with a concern on a continuing basis, a visions of the Equal Opportunity clause will

single certification may be submitted be required to provide for the forwarding of the following notice to prospective subcon

periodically (quarterly, semiannually, tractors for supplies and construction con

or annually) rather than with each tracts where the subcontracts exceed transaction. $10,000 and are not exempt from the provi

(1) Certification to be submitted by sions of the Equal Opportunity clause.

(i) bidders, (ii) offerors, (iii) contrac

tors, (iv) subcontractors, and (v) applicants who are themselves performing federally assisted construction con tracts:

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 segre. gated by explicit directive or are in fact seg. regated 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 identi. cal 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):

tract or for 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 seryices 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

NOTICE TO PROSPECTIVE SUBCONTRACTORS OF

REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

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. The certification may be submitted either for each subcon

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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. (33 FR 10715, July 27, 1968, as amended at 40 FR 44140, Sept. 25, 1975)

§ 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, openend 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 gor. ernments. An agency, subdivision, or other instrumentality of a State or local government is subject to the requirements of the Equal Opportunity clause contained in Federal contracts and subcontracts as follows:

(1) Where the instrumentality is not participating in work on or under a Federal contract or subcontract, it is exempt from the provisions of the clause.

(2) Where the instrumentality, except for educational institutions or medical facilities, is participating in work on or under a Federal contract or subcontract, it is subject to the requirements of the clause except that it is exempt from filing an annual compliance report as provided for in $ 112.805-4 and maintaining a written af. firmative action compliance program as prescribed by $ 1-12.810.

(3) Educational institutions and medical facilities of such instrumentalities which are participating in work on or under a Federal contract or subcontract are subject to all the provisions of the Equal Opportunity clause.

(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)). (33 FR 10715, July 27, 1968, as amended at 38 FR 28818, Oct. 17, 1973)

§ 1-12.804-2 Specific contracts.

days before the date set for the open

ing of bids. The Director may exempt an agency or any person from requiring the in

$ 1-12.805 Administration. clusion of any or all of the Equal Opportunity clause in any specific con $ 1-12.805-1 Duties of agencies." tract, or subcontract, when he deems (a) General responsibility. Each that special circumstances in the na- agency shall be primarily responsible tional interest so require. The Director for obtaining compliance with the may also exempt groups or categories Equal Opportunity clause, the Order, of contracts or subcontracts of the the regulations of the Secretary of same type where he finds it impracti- Labor, and orders issued pursuant cable to act upon each request individ- thereto. Each agency shall cooperate ually or where group exemptions will with the Director and shall furnish contribute to convenience in the ad him such information and assistance ministration of the Order.

as he may require in the performance

of his functions under the Order. Such $ 1-12.804-3 Facilities not connected with

information shall include compliance contracts.

review reports, schedules of compliThe Director may exempt from the

ance reviews, and any other informarequirements of the Equal Opportuni- tion relevant to the administration of ty clause any of a prime contractor's

a prime contractor's the Order. or subcontractor's facilities which he (b) Agency programs. The head of finds to be in all respects separate and

each agency shall, subject to the prior distinct from the activities of the approval of the Director, establish a prime contractor, or subcontractor, re

program and promulgate procedures lated to the performance of the con

to carry out the agency's responsibiltract, or subcontract, provided that he

ovided that he ities for obtaining compliance with the also finds that such an exemption will

Order and regulations and orders not interfere with or impede the effec

issued pursuant thereto. Each agency

head shall also designate a Contract tuation of the Order.

Compliance Officer, who (unless oth§ 1-12.804-4 Effect of exemption.

erwise approved by the Director) shall

be appointed by the head of the Notwithstanding the inclusion in

agency from among the agency's exany contract or subcontract of the

ecutive personnel to whom the ExecuEqual Opportunity clause, the con

tive Schedule applies, and such officer tractor or subcontractor shall be

shall be subject to the immediate suexempt from compliance therewith if

pervision of the head of the agency. the contract or subcontract containing

All compliance reviews required pursusuch a clause is exempt.

ant to this Subpart 1-12.8 and such

other compliance reviews as the Con$ 1-12.804-5 Withdrawal of exemption.

tract Compliance Officer determines When any contract or subcontract is to be appropriate shall be conducted of a class exempted under this $ 1- by him or his designee. The head of 12.804, the Director may withdraw the the agency or the Contract Compliexemption for a specific contract, orance Officer may also designate a subcontract, or group of contracts or Deputy Contract Compliance Officer subcontracts when in his judgment and Assistant Compliance Officers to such action is necessary or appropriate assist the Contract Compliance Offito achieve the purposes of the Order. cer in the performance of his duties. Such withdrawal shall not apply to The names of the Contract Complicontracts or subcontracts awarded ance Officers and the Deputy Conprior to the withdrawal except that in tract Compliance Officers, their adprocurements entered into by formal dresses, and telephone numbers, and advertising, or the various forms of restricted formal advertising, such with For a document relating to this section, drawal shall not apply unless the with see Appendix - Temporary Regulations, apdrawal is made more than 10 calendar pearing at the end of Chapter 1.

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