in his being declared ineligible for future Government contracts. During the 30-day period, every effort shall be made by the DOD CCO through conciliation, mediation and persuasion to resolve the deficiencies which led to the determination of noncompliance. (b) If the contractor fails to show acceptable reasons for his failure to develop an AAP, or fails to develop or effectively implement an acceptable AAP, or otherwise fails to correct apparent violations of the Equal Opportunity clause within the 30-day period provided for in paragraph (a) of this section, the DOD CCO shall notify the DCASR Commander, the Director, DSA, and the contracting officer, as appropriate. (c) Upon the approval of the Director, OFCC, and ASD (M&RA), the Director, DSA, shall notify the contractor that he has 10 calendar days in which to request a hearing on the question of whether existing Government contracts should be canceled or terminated and whether the contractor should be declared ineligible for future Government contracts. The contractor shall be informed that the hearings are to be held in accordance with section 208(b) of Executive Order 11246. The contractor shall also be informed that his failure to request a hearing within 10 calendar days will result in his current Government contracts being canceled or terminated for default and his being declared ineligible for future Government contracts. (d) If a request for a hearing has not been received after 10 calendar days from the date of the notice given by the Director, DSA, pursuant to paragraph (c) of this section, the ASD (M&RA) shall request approval from the Director, OFCC, to declare the contractor ineligible for future contracts, and cancel or terminate for default existing contracts. (e) If the contractor requests a hearing in response to the notice sent pursuant to paragraph (c) of this section, the Director, OFCC, or the Director, DSA, with the approval of the Director, OFCC, may convene such formal hearings. Reasonable notice of a hearing shall be sent by certified mail, return receipt requested, to the last known address of the prime contractor or subcontractor concerned. Such notice shall contain the time and place of hearing, a statement of the provisions of the order and regulations pursuant to which the hearing is to be held, and a concise statement of the matters pursuant to which the action furnishing the basis of the hearing has been taken or is proposed to be taken. A copy of such notice shall be sent to OFCC. Hearings shall be held before a hearing officer designated by the Director, OFCC, or the Director, DSA. Each party shall have the right to counsel and a fair opportunity to present evidence and argument and to cross-examine. Wherever a formal hearing is based in whole or in part on matters subject to the collective bargaining agreement and compliance may necessitate a revision of such agreement, any labor organization which is a signatory to the agreement shall have the right to participate as a party. Any other person or organization shall be permitted to participate upon a showing that such person or organization has an interest in the proceedings and may contribute materially to the proper disposition thereof. The hearing officer shall make his proposed findings and conclusions upon the basis of the record before him. (f) When the hearing is conducted by DSA, the hearing officer will make his report to the Director, DSA, who will make his recommendation to the ASD (M&RA). The decision of the ASD (M&RA) shall be final upon the approval of the Director, OFCC. When the hearing is conducted by a hearing officer appointed by the Director, OFCC, the hearing officer will make recommendations to the Director, OFCC, who will make the final decision. Parties will be furnished with copies of the hearing officer's recommendations and will be given an opportunity to submit their views. [36 F.R. 21159, Nov. 4, 1971] § 12.814 Sanctions and penalties. (a) With the prior approval of the Director, OFCC, the following sanctions and penalties may be exercised against contractors found to be in violation of the Executive order, the regulations of the Secretary of Labor, or the clauses in § 12.804: (1) Publication of the names of such contractors or their unions; (2) Cancellation, termination, or suspension of the contractor's contracts or portions thereof; and (3) Debarment from future Government contracts, or extensions or modifications of existing contracts until such contractors have established and carried out personnel and employment policies in compliance with the Executive order, the regulation of the Secretary of Labor, and the compliance program of the Director, DSA. (b) The Director, OFCC, may refer any matter arising under the Executive Order to the Department of Justice or to the Equal Employment Opportunity Commission (EEOC) for the institution of appropriate civil or criminal proceedings. (c) The above sanctions and penalties may be exercised by the Director, OFCC, or the ASD (M&RA) against any prime contractor, subcontractor or applicant who fails to take all necessary steps to ensure that no person intimidates, threatens, coerces, or discriminates against any individual for the purpose of interfering with the filing of a complaint, furnishing information, or assisting or participating in any manner in an investigation, compliance review, hearing, or any other activity related to the administration of the Executive order or any other Federal, State, or local laws requiring equal employment opportunity. (d) Those declared ineligible under paragraph (a) or (c) of this section may request reinstatement in a letter directed to the Director, OFCC. In connection with the reinstatement proceedings, the prime contractor or subcontractor shall be required to show that it has established and will carry out employment policies and practices in compliance with the Equal Opportunity clause. [36 F.R. 21159, Nov. 4, 1971] Subpart 1-Nondiscrimination § 12.901 Policy regarding nondiscrimination because of age. It is the policy of the Executive Branch of the Government (a) that contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement; and (b) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. This policy is stated in Executive Order No. 11141 dated February 12, 1964. Any complaint regarding a concern's compliance with the foregoing policy should be brought to the attention of the concern by a communication (in writing, if appropriate) which states the policy, indicates that the concern's compliance with the policy has been questioned, and requests that the concern take any appropriate steps which may be necessary to comply with the policy. [30 F.R. 6013, Apr. 29, 1965] Subpart J-Service Contract Act of 1965 SOURCE: The provisions of this Subpart J appear at 34 F.R. 17899, Nov. 5, 1969, unless otherwise noted. § 12.1001 Statutory requirements. The McNamara-O'Hara Service Contract Act of 1965, U.S.C. 351, referred to in this Part as the "Act", embraces two general requirements with respect to service contracts entered into by Federal agencies. (a) No contractor or subcontractor holding a Federal service contract shall pay any of his employees engaged in such work less than the minimum wage specified in section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.); and (b) Federal service contracts in excess of $2,500 shall contain the provisions required by the Act with respect to such matters as minimum wages, including fringe benefits, to be paid the various classes of service employees engaged in the performance of the contract, safe and sanitary working conditions, and notification to employees of the compensation required under the Act. § 12.1002 § 12.1002-1 Applicability. General. Subject to statutory exemptions or administrative exemptions by the Secretary of Labor under section 4(b) of the Act: (a) The requirement set forth in §12.1001(a) applies to any contract with the Federal Government, the principal purpose of which is to furnish services through the use of service employees (as defined in § 12.1002-3); and (b) The requirement set forth in § 12.1001(b) applies to every contract (and any bid specification therefor) entered into by the Federal Government in excess of $2,500 whether negotiated or advertised, the principal purpose of which is to furnish services through the use of service employees (as defined in § 12.1002-3). § 12.1002-2 Geographical coverage of the Act. The Act applies to work performed in any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnson Island, but does not apply to work performed in any other territory under the jurisdiction of the United States or any U.S. base or possession within a foreign country. § 12.1002-3 Service employee. (a) Definition of service employees. As defined in the Act, the term "service employee" means guards, watchmen, and any person engaged in a recognized trade or craft, or other skilled mechanical craft, or in unskilled, semiskilled, or skilled manual labor occupations; and any other employee including a foreman or supervisor in a position having trade, craft, or laboring experience as the paramount requirement; and shall include all such persons regardless of any contractual relationship that may be alleged to exist between a contractor or subcontractor and such persons. (b) Types of covered service contracts illustrated. Types of contracts, the principal purpose of which is to furnish services through the use of service employees, are too numerous and varied to permit an exhaustive listing. The following list is illustrative, however, of the types of services called for by such contracts that have been found to come within the coverage of the Act. (1) Aerial spraying. (2) Aerial reconnaissance for fire detection. (3) Ambulance service. (4) Cafeteria and food service. (5) Chemical testing and analysis. (6) Clothing alteration and repair. (7) Custodial and janitorial services. (8) Electronic equipment maintenance and operation. (9) Flight training. (12) Grounds maintenance. (13) Guard or watchman service. (14) Landscaping (other than part of construction). (15) Laundry and dry cleaning. (17) Lodging and meals. (19) Maintenance and repair of motor equipment. (20) Maintenance and repair of office equipment. (21) Miscellaneous housekeeping. (26) Stenographic reporting. (27) Support services at military installations. (28) Taxicab services. (29) Tire and tube repairs. (30) Transporting property or person nel. Pursuant to the Service Contract Act of 1965, the Department of Labor has issued Parts 4 and 1516, Title 29, Code of Federal Regulations, providing for the administration and enforcement of the Act. The regulations include coverage of the following matters relating to the requirements of the Act: (a) Service contract labor standards provisions and procedures (Subpart A, Part 4 (29 CFR)); (b) Equivalents of determined fringe benefits (Subpart B, Part 4 (29 CFR)); (c) Application of the Service Contract Act of 1965 (rulings and interpretations) (Subpart C, Part 4 (29 CFR)); and (d) Safe and sanitary working conditions (Part 1516 of Title 29 CFR). § 12.1004 Contract clauses. (a) Clause for Federal service contracts in excess of $2,500. The Act provides for inclusion of an appropriate clause in every contract entered into by Federal agencies in excess of $2,500 the principal purpose of which is to furnish services in the United States through the use of service employees, except contracts identified in section 7 of the Act or those exempted by the Secretary of Labor under section 4(b) of the Act. Accordingly every invitation for bids, request for proposals, or other form of solicitation to which this paragraph is applicable shall provide for inclusion of, and every contract shall contain, the following clause: SERVICE CONTRACT ACT OF 1965 (SEPTEMBER 1968) This contract, to the extent that it is of the character to which the Service Contract Act of 1965 (Public Law 89-286) applies, is subject to the following provisions and to all other applicable provisions of the Act and the regulations of the Secretary of Labor thereunder (29 CFR Parts 4 and 1516). (a) Compensation. Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wage and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor or his authorized representative, as specified in any attachment to this contract. If there is such an attachment, any class of service employees which is not listed therein, but which is to be employed under this contract, shall be classified by the Contractor so as to provide a reasonable relationship between such classifications and those listed in the attachment, and shall be paid such monetary wages and furnished such fringe benefits as are determined by agreement of the interested parties, who shall be deemed to be the contracting agency, the Contractor, and the employees who will perform on the contract or their representatives. If the interested parties do not agree on a classification or reclassification which is, in fact, conformable, the Contracting Officer shall submit the question, together with his recommendation, to the Administrator of the Wage and Hour and Public Contracts Divisions, Department of Labor, or his authorized representative for final determination. Failure to pay such employees the compensation agreed upon by the interested parties or finally determined by the Administrator or his authorized representative shall be a violation of this contract. No employee engaged in performing work on this contract shall in any event be paid less than the minimum wage specified under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended ($1.60 per hour). (b) Obligation to furnish fringe benefits. The Contractor or subcontractor may discharge the obligation to furnish fringe benefits specified in the attachment or determined conformably thereto by furnishing any equivalent combinations of fringe benefits, or by making equivalent or differential payments in cash, pursuant to applicable rules of the Administrator of the Wage and Hour and Public Contracts Divisions, Department of Labor (Subpart B of Part 4 (29 CFR)). (c) Minimum wage. In the absence of a minimum wage attachment for this contract, neither the Contractor nor any subcontractor under this contract shall pay any of his employees performing work under the contract (regardless of whether they are service employees) less than the minimum wage specified by section 6(a)(1) of the Fair Labor Standards Act of 1938 ($1.60 per hour). However, in cases where section 6(e) (2) of the Fair Labor Standards Act of 1938 is applicable, the rates specified therein will apply. Nothing in this provision shall relieve the Contractor or any subcontractor of any other obligation under law or contract for the payment of a higher wage to any employee. (d) Notification to employees. The Contractor and any subcontractor under this contract shall notify each service employee commencing work on this contract of the minimum monetary wage and any fringe benefits required to be paid pursuant to this contract, or shall post a notice of such wages and benefits in a prominent and accessible place at the worksite, using such poster as may be provided by the Department of Labor. (e) Safe and sanitary working conditions. The Contractor or subcontractor shall not permit any part of the services called for by this contract to be performed in buildings or surroundings or under working conditions provided by or under the control or supervision of the Contractor or subcontractor which are unsanitary or hazardous or dangerous to the health or safety of service employees engaged to furnish these services. Except insofar as a noncompliance can be justified as provided in section 1516.1 (c) of Title 29 CFR, this will require compliance with the applicable standards, specifications, and codes developed and published by the U.S. Department of Labor, any other agency of the United States, and any nationally recognized professional organization such as, without limitation, the following: National Bureau of Standards, U.S. Department of Commerce. Public Health Service, U.S. Department of United States of America Standards Institute (American Standards Association). National Fire Protection Association. American Society of Mechanical Engineers. American Society for Testing and Materials. American Conference of Governmental Industrial Hygienists. Information as to the latest standards, specifications, and codes applicable to the contract is available at the office of the Director of the Bureau of Labor Standards, U.S. Department of Labor, Railway Labor Building, 400 First Street NW., Washington, D.C. 20212, or at any of the regional offices of the Bureau of Labor Standards as follows: (1) North Atlantic Region, 341 Ninth Avenue, Room 920, New York, N.Y. 10001 (Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, New Jersey, and Puerto Rico). (2) Middle Atlantic Region, 1110-B Federal Building, Charles Center, 31 Hopkins Plaza, Baltimore, Md. 21201 (Delaware, District of Columbia, Maryland, North Carolina, Pennsylvania, Virginia, and West Virginia). (3) South Atlantic Region, 1371 Peachtree Street NE., Suite 723, Atlanta, Ga. 30309 (Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee). (4) Great Lake Region, 848 Federal Office Building, 219 South Dearborn Street, Chicago, Ill. 60604 (Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin). (5) Mid-Western Region, 2100 Federal Office Building, 911 Walnut Street, Kansas City, Mo. 64106 (Colorado, Idaho, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming). (6) Western Gulf Region, 411 North Akard Street, Room 601, Dallas, Tex. 75201 (Arkansas, Louisiana, New Mexico, Oklahoma, and Texas). (7) Pacific Region, 10353 Federal Building, 450 Golden Gate Avenue, Box 36017, San Francisco, Calif. 94102 (Alaska, Arizona, California, Hawaii, Nevada, Oregon, Washington, and Guam). (f) Records. The Contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years from the completion of the work records containing the information specified below for each employee subject to the Act and shall make them available for inspection and transcription by authorized representatives of the Administrator of the Wage and Hour and Public Contracts Divisions, U.S. Department of Labor. (1) His name and address. (2) His work classification or classifications, rate or rates of monetary wages and fringe benefits provided, rate or rates of fringe benefit payments in lieu thereof, and total daily and weekly compensation. (3) His daily and weekly hours so worked. (4) Any deductions, rebates, or refunds from his total daily or weekly compensation. (5) A list of monetary wages and fringe benefits for those classes of service employees not included in the minimum wage attachment to this contract, but for which such wage rates or fringe benefits have been determined by the interested parties or by the Administrator of the Wage and Hour and Public Contracts Divisions, Department of Labor, or his authorized representative pursuant to the labor standards in paragraph (a) of this clause. A copy of the report required by paragraph (j) of this clause shall be deemed to be such a list. (g) Withholding of payments and termination of contract. The Contracting Officer shall withhold or cause to be withheld from the Government Prime Contractor under this or any other Government contract with the Prime Contractor such sums as he, or an appropriate officer of the Labor Department, decides may be necessary to pay underpaid employees. Additionally, any failure to comply with the requirements of this clause relating to the Service Contract Act of 1965 may be grounds for termination of the right to proceed with the contract work. In such event, the Government may enter into other contracts or arrangements for completion of the work, charging the Contractor in default with any additional cost. (h) Subcontractors. The Contractor agrees to insert the paragraphs of this clause relating to the Service Contract Act of 1965 in all subcontracts. The term "Contractor" as used in these paragraphs in any subcontract, shall be deemed to refer to the subcontractor, except in the term "Government Prime Contractor." (1) Service employee. As used in this clause relating to the Service Contract Act of 1965, the term "service employee" means guards, watchmen, and any person engaged in a recognized trade or craft, or other skilled mechanical craft, or in unskilled, semiskilled, or skilled manual labor occupations; and any other employee including a foreman, or supervisor in a position having trade, craft, or laboring experience as the paramount requirement; and shall include all such persons regardless of any contractual relationship that may be alleged to exist between a Contractor or subcontractor and such persons. (j) Contractor's report. If there is a wage determination attachment to this contract and one or more classes of service employees which are not listed thereon are to be employed under the contract, the Contractor shall report to the Contracting Officer the monetary wages to be paid and the fringe benefits to be provided each such class of service employee. Such report shall be made promptly as soon as such compensation has been determined as provided in paragraph (a) of this clause. (k) Regulations incorporated by reference. All interpretations of the Service Contract Act of 1965 expressed in Subpart C of Part 4 (29 CFR) are hereby incorporated by reference in this contract. (1) These clauses relating to the Service Contract Act of 1965 shall not apply to the following: (1) Any contract of the United States or District of Columbia for construction, alteration and/or repair, including painting and decorating of public buildings or public works; (2) Any work required to be done in accordance with the provisions of the WalshHealey Public Contracts Act (49 Stat. 2036); (3) Any contract for the carriage of freight or personnel by vessel, airplane, bus, truck, express, railway line, or oil or gas pipeline where published tariff rates are in effect, or where such carriage is subject to |