(a) The contracting officer shall require each contractor having a contract subject to the provisions of section 301 of Executive Order 10925, as amended, to file, and each contractor shall cause each of his first-tier subcontractors not exempted under the provisions of

§ 12.803 to file, compliance reports in accordance with instructions attached to the official Compliance Report, Standard Form 40. Subsequent reporting shall be accomplished as indicated in those instructions. Whenever a contractor or subcontractor is currently engaged in the performance of any part or all of another contract or subcontract subject to the nondiscrimination clause with any Government agency, and has filed within a current reporting period, a compliance report covering the plants, facilities, and activities which will be involved in the performance of a new contract, this requirement shall be satisfied by the filing, with the contracting officer, of the Certificate of Submission of Compliance Report, Standard Form 40A.

[Paragraph (a) amended, 28 F.R. 12573, Nov. 23, 1963]

(b) The contracting officer shall furnish the contractor a sufficient number of report forms (Standard Forms 40 and 40A) to satisfy the requirements of paragraph (a) of this section.

(c) The designated time for filing compliance reports may be extended with the approval of the Executive Vice Chairman. Requests by contractors or subcontractors for such an extension should be directed to the contracting officer for forwarding to the Executive Vice Chairman in accordance with Departmental procedures.

(d) The contracting officer shall require any bidder or prospective contractor, or any of their proposed subcontractors, to state as an initial part of the bid or negotiations of the contract whether they have participated in any previous contract subject to the provisions of Section 301 of the Executive Order. Upon the direction of the Executive Vice Chairman, the contracting officer shall require the submission of a compliance report by any bidder or prospective contractor prior to the award of the contract upon which the contractor has bid.

(e) Whenever directed by the Executive Vice Chairman, the contracting officer will, as a part of the bid or negotiation of a contract, direct a bidder, proposed contractor, or any proposed subcontractor to file a statement in writing (signed by an authorized officer or agent of any labor union or other worker's representative with which the bidder or prospective contractor or subcontractor deals or has reason to believe he will deal in connection with performance of the proposed contract), together with supporting information, to the effect that the said labor union's or other workers' representative's practices and policies do not discriminate on the grounds of race, color, creed or national origin, and that the labor union or other worker's representative either will affirmatively cooperate, within the limits of its legal and contractual authority, in the implementation of the policy and provisions of the Executive Order, or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the Executive Order. If the union or other worker's representative fails or refuses to execute such a statement, the bidder or proposed contractor or subcontractor shall so certify, and state what efforts have been made to obtain such a statement. Upon receipt of such certification, the Executive Vice Chairmain will be notified in accordance with Departmental procedures. However, non-receipt of such certification shall not be a ground for withholding an award.

§ 12.806-5 Compliance reviews.

(a) Both routine and special compliance reviews shall be conducted to ascertain the extent to which contractors and subcontractors are complying with the provisions of the Nondiscrimination in Employment clause and to furnish educational data in connection with the program.

(b) A routine compliance review consists of a general review of the practices of the contractor or subcontractor to ascertain compliance with the requirements of the clause. This type of review shall include a verification that the notices are appropriately posted and that the clause is included in subcontracts where required. A routine compliance review shall be considered a normal part of contract administration.

(c) A special compliance review consists of a comprehensive review of the employment practices of the contractor or subcontractor with respect to the requirements of the clause. In addition to discussions with management, personnel conducting special compliance reviews should, when appropriate, discuss the contractor's or subcontractor's employment practices with employment sources, minority groups, and interested civic groups. Special compliance reviews shall be conducted (1) from time to time, (2) when special circumstances, including complaints which are processed under § 12.806-6, warrant, and (3) when requested by proper authority. The Department shall report the results of any special compliance reviews to the Executive Vice Chairman in accordance with Departmental procedures.

(a) Complaints may be submitted in writing to the President's Committee, the Secretary of Defense, or the Departments. The Departments will investigate promptly complaints based upon alleged noncompliance with the provisions of the Nondiscrimination in Employment clause. Where a complaint is filed directly with a Department, it will be forwarded in accordance with Departmental procedures to the Departmental Contracts Compliance Officer, who will transmit a copy of the complaint directly to the Executive Vice Chairman within ten days after receipt thereof. The Department shall proceed with a prompt investigation of the complaint, provided the complaint is submitted not later than 90 days from the date of the alleged discrimination, unless the time is extended by the Department or the Executive Vice Chairman for good cause shown.

(b) Complaints will be required to be signed by the complainants and to contain the following information:

(1) Name and address (including telephone number) of the complainant.

(2) Name and address of the contractor or subcontractor who committed the alleged act of discrimination.

(3) A description of the act or acts considered to be discriminatory.

(4) Other pertinent information which will assist in the investigation and resolution of the complaint.

(c) Where a complaint contains incomplete information, the Department will request promptly the needed infor

mation from the complainant. In the event such information is not furnished within 60 days of the date of such request, the case may be closed.

§ 12.806-7 Processing of complaints.

Complaints submitted or referred to a Department and determined to involve a Government contract or subcontract, shall be processed in accordance with Departmental procedures which will

assure:

(a) Prompt investigation of statements and allegations contained in the complaint. Such investigation should include, where necessary, (1) a review of the pertinent personnel practice of the contractor or subcontractor concerned, (2) the circumstance under which the discriminatory action is alleged to have taken place, and (3) other factors which may determine whether the contractor or subcontractor in the particular case complied with the provisions of the nondiscrimination clause set forth in the contract or subcontract concerned;

(b) Resolution of complaints by conciliatory means whenever possible;

(c) The preparation and submission, within 60 days from receipt of the complaint by the department, or within such additional time as may be allowed by the Executive Vice Chairman for good cause shown, of a summary report to the Executive Vice Chairman setting forth (1) the name and address of the complainant, (2) a brief summary of the findings, (3) a statement of the disposition of the case, including any corrective action taken or sanction imposed, or (4) whenever appropriate, the recommended corrective action and sanctions or penalties; and

[Paragraph (c) amended, 28 F.R. 12573, Nov. 23, 1963]

(d) Prompt notification to the appropriate contractor or subcontractor, of the closing of the case in those cases wherein the investigative findings by the Department concerned, upon review and concurrence by the Executive Vice Chairman, show no violation of the Nondiscrimination in Employment clause. § 12.806-8

Sanctions.

(a) General. In every case where investigation indicates the existence of an apparant violation of the provisions of the clause, the matter should be resolved by informal means whenever possible.

This will include, where appropriate, establishing a program for future compliance approved by the Secretary of the Department. If a contractor or subcontractor, without a hearing, has complied with the recommendations or orders of a Department and believes such orders or recommendations to be erroneous, he shall, upon request, he accorded a hearing and review of the alleged erroneous action under § 12.808.

(b) Termination. No contract or subcontract will be terminated in whole or in part for failure to comply with the provisions of the Nondiscrimination in Employment clause, without the approval of the Secretary. Whenever it is proposed to terminate a contract or a subcontract, the contractor or subcontractor will be notified in writing of such proposed action and given ten days (or such longer period as the Secretary, with the approval of the Executive Vice Chairman, may consider appropriate) from the receipt of the notice either to comply with the provisions of the contract or to mail a request for a hearing under § 12.808.

No

(c) Debarment and suspension. contractor or subcontractor will be debarred or suspended from receiving Government contracts for failure to comply with the provisions of the clause except under the recommendations of the Secretary and the approval of the Executive Vice Chairman. In every case where debarment or suspension is being proposed, the contractor or subcontractor will be notified by the Secretary, in writing, of the proposed recommendation and given ten days from the receipt of such notice in which to mail a request for a hearing under § 12.808 or for one before the President's Committee.

(d) Referral to the Department of Justice. Each Department, after coordination with the Special Assistant to the Secretary of Defense, and with the approval of the Executive Vice Chairman, may recommend to the Department of Justice that, in cases where there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in § 12.802, appropriate proceedings be brought to enforce those provisions, including the enjoining, within the limitations of applicable law, of organizations, individuals, or groups which prevent directly or indirectly, compliance with the aforesaid provisions. The Department may also recommend to the

Department of Justice that criminal proceedings be brought for the furnishing of false information to the Department. Provided, however, that no case shall be referred to the Department of Justice until the expiration of 10 days (unless a longer period is fixed by the Department with the approval of the Executive Vice Chairman) from the mailing of notice of such proposed referral by the Department to the contractor or subcontractor involved, affording him an opportunity to comply with the provisions of the Order.

§ 12.807 Contact with the President's Committee.

Contact with the President's Committee on Equal Employment Opportunity concerning the conduct of investigations or any other matters shall not be undertaken without the approval of the Departmental Contracts Compliance Officer.

§ 12.808 Hearings.

§ 12.808-1 General.

Hearings may be held by a Department when an apparent act, or acts, of discrimination, as shown by investigation, are not resolved informally by conference, conciliation, mediation, or persuasion. Hearings shall be held by a Department when:

(a) A contractor or subcontractor who has complied with the recommendations or orders of the Department, but believes such recommendations or orders to be erroneous, and requests a hearing thereon; or

(b) A Department proposes to debar a contractor or subcontractor, or to terminate a contract or subcontract. § 12.808-2 Delegation of authority.

The Secretary may delegate to any person, military or civilian, or board of such persons within his Department, all the authority of the Secretary conferred by the Order or the rules and regulations of the President's Committee to give notice of hearings, to conduct hearings, and to make findings of fact and recommendations with respect to determining whether a contractor or subcontractor is or has been in violation of the contract clause. If the Secretary delegates his authority to a board, one of the members thereof shall be a person trained in the law, and the Secretary shall designate one member to be the presiding officer of the board.

§ 12.808-3 Notice and contents.

(a) Whenever a hearing is to be held, the Department shall cause a written notice to be served upon the contractor or subcontractor in the manner hereinafter provided. The notice shall be signed by the Secretary or his designee and dated, and shall include the following items:

(1) A statement of the time, place, and purpose of the hearing, and the authority and jurisdiction under which it will be held. The statement as to purpose need only identify the contract clause, the contracts or subcontracts involved, and the ultimate facts to be determined. shall not be less than 10 days after service of the notice.

The time of the hearings

(2) Brief allegations in reasonable detail setting forth the circumstances surrounding the act or acts of discrimination, the name(s) of the complainant (s), and the approximate date and place of each alleged discriminatory act. Such allegations need be only sufficient to apprise the contractor or subcontractor reasonably of the issues involved in the hearing.

(3) A request that the contractor or subcontractor answer in writing the allegations of the notice, including in his answer such facts or arguments as he may wish, and that he attend the hearings to adduce such evidence with respect to the alleged discrimination as he may desire.

(b) Service of notice. Service shall be made by mailing by registered mail, return receipt requested, a copy of the notice to the contractor or subcontractor. § 12.808-4 Continuances and delays.

The authority to grant continuances or to adjourn the hearing shall rest with the person presiding at the hearing. Continuances will only be allowed for the most compelling reasons.

after be required may be made upon such legal counsel. The Department will make available such technical assistants, including a reporter, secretary or notary, as may be required.

§ 12.808-7 Transcript.

Testimony and arguments shall be reported verbatim. The reporter or secretary shall make available to the contractor or subcontractor and to the Government transcripts of the proceedings, including all testimony and copies of all documentary exhibits upon the payment of the reasonable costs thereof as the Department may by order fix. § 12.808-8 Conduct of hearings.

Hearings shall be conducted by the Secretary or his designee. Hearings will be as informal as may be reasonably appropriate under all the circumstances. Evidence and testimony, although not ordinarily admissible under legal rules of evidence, may be received subject to the discretion of the person presiding at the hearing. Immaterial, irrelevant, or unduly repetitious evidence shall be excluded. The parties may stipulate as to any facts or testimony. The testimony of witnesses shall be under oath and witnesses shall be subject to cross-examination.

The hearing officer shall make such rulings with respect to the conduct of hearings as circumstances may require to ensure the orderly and expeditious presentation of evidence in a manner fair to the parties and consistent with this part and requirements of due process of law.

§ 12.808-9 Depositions.

Following service of the notice of hearing, a deposition may be taken as herein provided, and placed in evidence whenever the ends of justice will be served thereby.

(a) Notice to take. When either party desires to take a deposition, unless the parties stipulate as to the time when, and place where, the deposition is to be taken, the name of the officer before whom it is to be taken, and the names and addresses of the witnesses, the moving party shall give to the opposite party at least ten days' notice of the time when and the place where such deposition will be taken; the name and address and official title of the officer before whom it is proposed to take the deposition, and the names of the witnesses. A deposition may be taken either upon written inter

rogatories or upon oral examination, as may be specified in the notice. If the deposition is to be taken upon written interrogatories, copies thereof must accompany the notice to take depositions; if the opposite party desires to submit cross-interrogatories, written cross-interrogatories should be served upon the party giving the notice within 5 days from the receipt of the notice to take the deposition. Notices may be served upon the contractor or subcontractor as provided in § 12.808-3 or upon his legal counsel of record. Service upon the Government may be made upon the person signing the notice of hearing or the Government representative of record. If service is made by mail, the mail shall be registered and service will be complete upon mailing.

(b) Taking depositions. Depositions may be taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken, to administer oaths. Witnesses shall be under oath and shall be subject to cross-examination as at the hearing. Objections will be reserved for determination at the hearing: Providea, however, Objections as to the form of questions shall be made and noted in the deposition. Each deposition shall show the caption of the proceeding, the place and date of taking, the names of the witnesses, and the party by whom called. The officer taking a deposition shall enclose the original deposition and exhibits, in a sealed packet, with postage or other transportation prepaid, and forward the same to the Secretary or his designee.

(c) Use of deposition. Testimony taken by deposition will not be considered until offered in whole or in part and received in evidence. A deposition taken by one party may be offered by the opposite party.

§ 12.808-10 Absence of parties.

If the contractor or subcontractor fails or refuses to appear, the hearing shall proceed upon such evidence as the Government may offer. The unexcused absence of any party shall not be occasion for delay of the hearing.

§ 12.808-11 Argument.

Within the discretion of the person presiding at the hearing, limited oral argument may be presented by the parties upon the completion of the hearing.

22 051-6421

§ 12.808-12 Findings and recommenda, tions.

As soon as practicable after completion of the hearing, the person or board that conducted the hearing shall make written findings and recommendations with respect to all material issues; reasons for the findings will be included at such length as may be appropriate. The findings and recommendations shall be forwarded in accordance with Departmental procedures to the President's Committee for approval.

§ 12.809 Certificates of Merit.

(a) Certificates of Merit may be awarded:

(1) By the Committee on its own initiative. The Committee acting through the Chairman or Vice Chairman may award United States Government Certificates of Merit to employers or employee organizations which are or may hereafter be engaged in work under Government contracts, if the Committee is satisfied that the personnel and employment practices of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the employee organization conform to the purposes and provisions of the Order.

(2) By the Executive Vice Chairman upon the recommendation of a Department. The Committee, acting through the Executive Vice Chairman, may award a United States Government Certificate of Merit upon the recommendation of the Department. The recommendation should include a statement in sufficient detail to inform the Executive Vice Chairman of the basis for the recommended award.

(b) Benefits. A United States Government Certificate of Merit shall entitle the recipient to an exemption from the submission of the reports otherwise required by 12.806-4. Before allowing such exemption, contracting officers will require holders of Certificates of Merit to clearly identify the certificate by number or otherwise.

(c) Suspension or revocation. The Committee, acting through the Chairman or Vice Chairman, may at any time review the continued entitlement of any employer or employee organization to a Certificate of Merit, and may suspend or revoke the Certificate.