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8 8.2 Definitions.

determined as if such contractor is a (a) “Administering agency” means

prime contractor only. any department, agency, and estab

(f) “Construction work” means the lishment in the Executive Branch of

construction, rehabilitation, alterthe Government, including any wholly

ation, conversion, extension, demoliowned Government corporation, tion or repair of buildings, highways, which administers a program involving

or other changes or improvements to federally assisted construction con- real property, including facilities protracts.

viding utility services. The term also (b) “Administrator" means the Ad

includes the supervision, inspection, ministrator of the Environmental Pro

and other on-site functions incidental tection Agency.

to the actual construction. (c) "Agency" means the Environ

(g) “Contract” means any Governmental Protection Agency.

ment contract or any federally assist(d) “Applicant" means an applicant

ed construction contract. for Federal assistance from the (h) “Contractor" means, unless othAgency involving a construction con

erwise indicated, a prime contractor or tract, or other participant in a pro

subcontractor. gram involving a construction contract (i) "Director" means the Director, as determined by the regulations of

Office of Federal Contract Complithe Agency. The term also includes ance, U.S. Department of Labor, or such persons after they become recipi- any person to whom he delegates auents of such Federal assistance.

thority under the regulations of the (e) “Compliance Agency” means the Secretary of Labor. agency designated by the Director on (j) "Equal opportunity clause" a geographical, industry, or other means the contract provisions set basis to conduct compliance reviews forth in section 4 (a) or (b), as approand to undertake such other responsi- priate. bilities in connection with the adminis- (k) "Facilities" includes, but it is not tration of the order as the Director limited to, waiting rooms, work areas, may determine to be appropriate. In restaurants and other eating areas, the absence of such a designation the time clocks, restrooms, washrooms, Compliance Agency will be determined locker rooms and other storage or as follows:

dressing areas, parking lots, drinking (1) In the case of a prime contractor fountains, recreation or entertainment not involved in construction work, the areas, transportation, and housing faCompliance Agency will be the agency cilities provided for employees. whose contracts with the prime con- (1) "Federally assisted construction tractor have the largest aggregate contract” means any agreement or dollar value;

modification thereof between any ap(2) In the case of a subcontractor plicant and any person for construcnot involved in construction work, the tion work which is paid for in whole or Compliance Agency will be the Com- in part with funds obtained from the pliance Agency of the prime contrac- Agency or borrowed on the credit of tor with which the subcontractor has the Agency pursuant to any Federal the largest aggregate value of subcon- program involving a grant, contract, tracts or purchase orders for the per- loan, insurance, or guarantee, or unformance of work under contracts; dertaken pursuant to any Federal pro

(3) In the case of a prime contractor gram involving such grant, contract, or subcontractor involved in construc- loan, insurance, or guarantee, or any tion work, the Compliance Agency for application or modification thereof apeach construction project will be the proved by the Agency for a grant, conagency providing the largest dollar tract, loan, insurance, or guarantee value for the construction projects; under which the applicant itself parand

ticipates in the construction work. (4) In the case of a contractor who is (m) “Government” means the Govboth a prime contractor and subcon- ernment of the United States of Amertractor, the Compliance Agency will be ica.

(n) "Government contract" means (v) “Site of construction" means the any agreement or modification thereof general physical location of any buildbetween any contracting agency and ing, highway, or other change or imany person for the furnishing of sup- provement to real property which is plies or services or for the use of real undergoing construction, rehabilitaor personal property, including lease tion, alteration, conversion, extension, arrangements. The term "services," as demolition, and repair and any tempoused in this definition includes, but is rary location or facility at which a not limited to, the following services: contractor, subcontractor, or other Utility, construction, transportation, participating party meets a demand or research, insurance, and fund deposi- performs a function relating to the tory. The term "government contract" contract or subcontract. does not include (1) agreements in (w) “Subcontract” means any agreewhich the parties stand in the rela- ment or arrangement between a contionship of employer and employee, tractor and any person (in which the and (2) federally assisted construction parties do not stand in the relationcontracts.

ship of any employer and an employ(0) “Hearing officer" means the indi- ee): vidual or board of individuals designat- (1) For the furnishing of supplies or ed to conduct hearings.

services or for the use of real or per(p) “Modification" means any alter- sonal property, including lease aration in the terms and conditions of a rangements, which, in whole or in contract, including supplemental part, is necessary to the performance agreements, amendments and exten- of any one or more contracts; or sions.

(2) Under which any portion of the (q) "Order" means Parts II, III, and contractor's obligation under any one IV of Executive Order 11246, dated or more contracts is performed, underSeptember 24, 1965 (30 FR 12319), and taken or assumed. any Executive Order amending or su- (x) "Subcontractor" means any perseding such orders.

person holding a subcontract and, for (r) "Person" means

any natural the purposes of Subpart B (General person, corporation, partnership, unin- Enforcement; Compliance Review, and corporated association, State or local Complaint Procedure) of the rules, government, and any agency, instru- regulations, and relevant orders of the mentality, or subdivision of such a Secretary of Labor any person who government.

had held a subcontract subject to the (s) "Prime contractor" means any

order. The term "First-tier subcontracperson holding a contract, and for the

tor" refers to a subcontractor holding purposes of Subpart B (General En. a subcontract with a prime contractor. forcement, Compliance Review, and (y) "United States" as used herein Complaint Procedure) of the rules,

shall include the several States, the regulations, and relevant orders of the District of Columbia, the CommonSecretary of Labor, any person who wealth of Puerto Rico, the Panama has held a contract subject to the Canal Zone, and the possessions of the order.

United States. (t) "Recruiting and training agency" (z) “Minority group" as used herein means any person who refers workers shall include, where appropriate, to any contractor or subcontractor, or

female employees and prospective who provides or supervises apprentice

female employees. ship or training for employment by any contractor or subcontractor.

8 8.3 Responsibilities. (u) “Rules, regulations, and relevant (a) General. The Environmental Proorders of the Secretary of Labor" used tection Agency is primarily responsible in both paragraph (4) of the equal op- for implementing the requirements of portunity clause and elsewhere herein the order, and all rules, regulations, means rules, regulations, and relevant and orders issued pursuant thereto for orders of the Secretary of Labor or his all contracts for which it is the Comdesignee issued pursuant to the Order. pliance Agency.

(b) Contract Compliance Officer (CCO). The Director of the Office of Civil Rights and Urban Affairs has been designated as the Contract Compliance Officer (CCO), and is responsible for developing and administering the Agency's program under the order.

(c) Director, Compliance Division. The Director of the Compliance Division (ADCCO) has been designated to assist the Contract Compliance Officer in the performance of his duties. He is authorized to exercise the authority of the Contract Compliance Officer.

(d) Deputy Contract Compliance Of. ficer (DCCO). Each Regional Director of Civil Rights and Urban Affairs has been designated by the Contract Compliance Officer as Deputy Contract Compliance Officer (DCCO) for the Region in which he serves. Deputy Contract Compliance Officers are responsible for field administration of programs of contract compliance in conformity with directives and guidelines promulgated by the Contract Compliance Officer.

(e) Heads of program areas. Assistant Administrators and Regional Administrators who are authorized to extend Federal financial assistance which involves construction work shall be responsible for effectuating the order, rules, regulations, and relevant orders of the Secretary of Labor, OFCC directives this part, directives of the Agency, and all other rules, regulations, and orders issued pursuant thereto as they relate to construction contracts financially assisted by the Agency. 88.4 Equal opportunity clause.

(a) Government contracts. Except as otherwise provided, the following equal opportunity clause contained in section 202 of the Order shall be included in each Government contract entered into by the Agency (and modification thereof if not included in the original contract):

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

(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that appli

cants 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 recruitment advertising; layoff or termi. nation; rates of pay or other forms of compensation; and selection for training, includ. ing apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting offi. cer setting forth the provisions of this equal opportunity clause.

(2) 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 consider. ation for employment without regard to race, color, religion, sex, or national origin.

(3) 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 by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under this equal opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4) 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.

(5) 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 contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(6) In the event of the contractor's noncompliance with the equal opportunity 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 fur. ther Government 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 otherwise provided by law.

(7) The contractor will include the provisions of paragraph (a) (1) through (7) of this section in every subcontract or pur

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chase order unless exempted by 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 contracting agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

(b) Federally assisted construction contracts. Except as otherwise provided, the agency shall include or require the inclusion of the following language as a condition of any grant, contract, loan, insurance, or guarantee involving federally assisted construction which it administers as Administering Agency and which is not exempt from the requirements of the equal opportunity clause:

The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the 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 a 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 clause:

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

(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, 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, color, religion, sex, 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 provi.

sions of this equal opportunity (federally assisted construction) clause.

(2) 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 consideration for employment without regard to race, color, religion, sex, or national origin.

(3) 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, & 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.

(4) 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.

(5) 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.

(6) 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, regulations, or order of the Secretary of Labor, or as provided by law.

(7) 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 in. volved in, or is threatened with, litigation with a subcontractor or vendor, as a result U.S. savings bonds and notes, contracts and subcontracts less than $50,000 and such other contracts as the Director may designate.

(e) Incorporation by operation of the Order and Agency regulations. By operation of the Order, and these regulations, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by either the Order, the rules, regulations and relevant orders of the Secretary of Labor or these regulations to include such a clause whether or not it is physically incorporated in such contracts. The clause is hereby made a part of every nonexempt contract where there is no written contract between the Agency and the contractor.

(f) Adaptation of language. Such necessary changes in language may be made in the equal opportunity clauses as shall be appropriate to identify the parties and their undertakings.

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.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the Agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will furnish the 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 Agency in the discharge of its primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to the Order with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Order and will carry out such sanctions and penalties for violation of the equal opportunity clause, as may be imposed upon contractors and subcontractors by the Agency or the Secretary of Labor pursuant to Part II, Subpart D of the Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the 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 the 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.

(c) Subcontracts. Each nonexempt prime contractor or subcontractor shall include the equal opportunity clause in each of its nonexempt subcontracts.

(d) 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

8 8.5 Exemptions.

(a) General-(1) Transactions of $10,000 or under. Contracts and subcontracts not exceeding $10,000, other than Government bills of lading, are exempt from the requirements of the equal opportunity clause. 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. The equal opportunity clause shall apply to all cases where the Agency, applicants, contractors, or subcontractors procure supplies or services in less than usual quantities to avoid applicability of the equal opportunity clause.

(2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite quantities (including, but not limited to, open-end contracts, requirement-type contracts, Federal Supply Schedule contracts, “call-type" contracts, and purchase notice agreements), the equal opportunity clause shall be included unless the purchaser has reason to believe that the amount to be ordered in any year under such

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