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In a meeting in Philadelphia conducted by CFP staff, the following comments were made by representatives from private industry:
The compliance officer is not concerned with meeting goals as much as he is in seeing that format is correct and submitted on a timely basis. Reporting data is often a substitute for progress. There is a need to investigate what the paperwork is to accomplish. Results of reporting should indicate in what direction a company should proceed, not just statistics on paper. There now seems to be paperwork, for the sake of paperwork.
At a meeting in Atlanta similar comments were voiced by the participants. Representatives from State government units stated:
Burdensome AAP and EEO reporting requirements have led to a negative view of EEO. In some cases the remedy is as bad as the disease.
The process has overtaken and shadowed the objectives of EEO enforcement.
Representatives from the private sector in Atlanta agreed unanimously with one participant who stated, "In the EEO enforcement effort there is too much focus on process and not enough on end results. Many companies are so involved in protecting themselves that they cannot actively deal with ensuring EEO."
Contractors have an obligation to certify that their subcontractors are in compliance with the law. This obligation is fulfilled in diverse ways by obtaining certifications attached to contracts.
The Commission obtained samples of the documents that contractors use to obtain certifications from their subcontractors. The documents varied from contractor to contractor, ranging from 4 to 20 pages. Kaiser Aluminum submitted a sample of a compliance form which it sent to its 27,000 subcontractors. The subcontractors were required to sign the card making various EEO certifications and return it to Kaiser. Kaiser received only 6,000 responses to two separate mailings.
Faced with the problems and inconsistencies among the various formats used by Federal contractors, the Commission staff sought to clarify the obligations of Federal contractors in assuring that their subcontractors comply
with EEO laws through discussions at the General Services Administration, the Department of Commerce and the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor.
As a result of this project, the Commission identified nine clauses and certifications that must exist between a Federal contractor and some or all of its subcontractors. These clauses and certifications are lengthy. If printed in full, they can run to many pages in a subcontract. Not all of them are required in all subcontracts. This has contributed to the confusion and burden of Federal contractors as they have tried to comply with these requirements.
Figure 3 is a Commission proposal to eliminate confusion and reduce burden. This brief document distills the nine required clauses and certifications into a short form that is readable, that is categorized according to applicability, and that meets the legal requirements of the OFCCP regulations.
Contract Clauses and Certifications for Inclusion in Subcontracts Under Federal Contracts
During the performance of this contract, the Subcontractor agrees as follows:
(a) The Subcontractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Subcontractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruit advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training, including apprenticeship. The Subcontractor agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(b) The Subcontractor will, in all solicitations or advertisements for employees placed by or on behalf of the Subcontractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. (c) The Subcontractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the subcontractor's commitments under Sec. 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(d) The subcontractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(e) The Subcontractor will furnish all information and reports required by Executive Order 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 its books, records and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(f) In the event of Subcontractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this Subcontract may be canceled, terminated or suspended in whole or in part and the Subcontractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secre tary of Labor, or as otherwise provided by law.
(g) The Subcontractor will include the provisions of subparagraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Sec. 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Subcontractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, That in the event the Subcontractor becomes involved in or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the Subcontractor may request the United States to enter into such litigation to protect the interests of the United States.
5. Certification of Nonsegregated Facilities - The Subcontrac tor certifies that it does not and will not maintain any facilities that it provides for its employees in a segregated manner and will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. This certification is in accordance with the requirements and definitions of Title 41 Code of Federal Regulations Sec. 60-1.8.
8. Utilization of Minority Business Enterprises
(a) It is the policy of the Government that minority business enterprises shall have the maximum practicable opportunity to participate in the performance of Government contracts.
(b) The Subcontractor agrees to use its best efforts to carry out this policy in the award of its subcontract to the fullest extent consistent with the efficient performance of this subcontract. As used in this subcontract, the term "minority business enterprise" means a business, at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members. For the purposes of this definition, minority group members are Negroes, Spanish-speaking American persons, American-Orientals, American-Indians, American-Eskimos and American Aleuts.
(1) Designate a liaison officer who will administer the Subcontractor's minority business enterprises program.
(2) Provide adequate and timely consideration of the potentialities of known minority business enterprises in all "make-or-buy" decisions.
(3) Assure that known minority business enterprises will have an equitable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of minority business enterprises.
(4) Maintain records showing: (i) procedures which have been adopted to comply with the policies set forth in this clause, including the establishment of a source list of minority business enterprises, (ii) awards to minority business enterprises on the source list, and (iii) specific efforts to identify and award subcontracts to minority business enterprises.
(5) Include the Utilization of Minority Business Enterprises clause in subcontracts which offer substantial minority business enterprises subcontracting opportunities.
(6) Cooperate with the Contracting Office in any studies anu surveys of the Subcontractor's minority business enterprises procedures and practices that the Contracting Officer may from time to time conduct.
(7) Submit periodic reports of subcontracting to known minority business enterprises with respect to the records referred to in subparagraph (4), above, in such form and manner and at such time (not more often than quarterly) as the Contracting Officer may prescribe.
(b) The Subcontractor further agrees to insert, in any subcontract hereunder which may exceed $500,000, provisions which shall conform substantially to the language of this clause, including this paragraph (b), and to notify the Contracting Officers of the names of such subcontractors.
The document has two features that should make it useful to Federal contractors. First, it makes use of provisions in the OFCCP regulations that allow many of the clauses to be incorporated by reference into contracts rather than being written out in full. This affords a considerable savings in written material. Second, the clauses and certifications are grouped according to the criteria that determine applicability in given subcontracts. These criteria appear parenthetically, preceding each group of clauses. The clauses themselves have been written in a form that attempts to set out clearly what each of the clauses is about.
The Commission emphasizes that incorporation by reference does not change the legal liabilities of the contractor and subcontractor. They are legally bound to follow the regulations that are referenced in each clause when they agree to the subcontract.
The Commission believes that this document will help both businessmen doing work under Federal contracts and those groups of people for whom the EEO laws were written. For the businessman, this document specifies which clauses must appear in which subcontracts.
This short version could easily be incorporated into contractual documents such as purchase orders and in this way would ensure that each subcontractor had made the proper certifications. Using checkoff blocks, only those clauses which apply in a given subcontract would be incorporated. This one document could be used in all situations. It should afford great savings in the amount of paper, printing costs, time spent preparing subcontract documents, and time spent reading the documents.
To understand the details of its obligations under the EEO regulations, the subcontractor still must refer to the full regulations of OFCCP which appear in the Code of Federal Regulations. Figure 3 does not attempt to explain the details of compliance. It outlines the broad picture of what the subcontractor has to do for compliance. The subcontractor must then undertake the followup actions that are required by the regulations to live up to its agreements in the subcontract.
Recommendation No. 1
The OFCCP should adopt standardized language and forms for use by contractors to certify that subcontractors are in compliance with EEO requirements.
2325,000 employers, savings of 5 pages per contract, $5 per page.