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tion, the Administrator will notify the Director in writing within 30 days.
8 8.6 Pre-bid requirements and confer
(a) Nonconstruction contracts of $1 million or more. The following notice shall be included in the invitation for bids, or request for proposals for each nonconstruction contract (advertised or negotiated) which may result in an award of $1 million or more:
PREAWARD EQUAL OPPORTUNITY COMPLIANCE
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.
(3) 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.
(4) Contracts with State or local governments. The requirements of the equal opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. In addition, State and local governments are exempt from the requirements of filing the annual compliance report provided for by $ 8.11(a) and maintaining a written affirmative action cornpliance program prescribed in $$ 8.7 and 8.8.
(b) Specific contracts and facilities not connected with contracts. The equal opportunity clause will not be required to be included in any contract or subcontract exempted by the Director under the provisions of 41 CFR 601.5(b) (1) or (2) provided such exemption has not been withdrawn under the provisions of 41 CFR 60-1.5(d).
(c) National security. Any requirement set forth in the regulations in this part shall not apply to any contract or subcontract whenever the Administrator 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 determina
Where the bid (or offer) of the apparent low responsible bidder (or offeror) is in the amount of $1 million or more, the bidder (or offeror) 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 (or offeror) and his subcontractors are able to comply with the provisions of the equal opportunity clause. Preaward compliance reviews may be conducted for any nonexempt nonconstruction contract or subcontract if, on the basis of complaint, past performance, investigation, or otherwise, the Agency believes that a prospective contractor or subcontractor is unable or unwilling to comply with the requirements of the equal employment opportunity clause.
(b) Construction contracts. (1) In certain designated metropolitan areas, the Office of Federal Contract Compliance has established or approved establishment of, special compliance programs. In each such area special procedures have been made applicable for all direct Federal or federally assisted construction projects. Such rules, regulations, guidelines, and procedures shall be governing in each in. stance and take precedence over general EPA contract compliance regulations set forth herein for direct and EPA financially assisted construction projects.
(2) Except for the specially designated areas described in paragraph (1) of this paragraph (b), the following notice shall be included in the invitation for bids or request for proposals for all EPA direct construction and EPA financially assisted construction contracts where projects costs reasonably may be expected to exceed $500,000:
PRE-CONSTRUCTION EQUAL OPPORTUNITY
COMPLIANCE CONTERENCE As part of the procedure for determining the ability of contractors to comply with the equal opportunity clause, prospective bidders may be required to attend a meeting scheduled by the Environmental Protection Agency prior to opening of bids where they will be instructed in the equal employment opportunity requirements of the Agency. 88.7 Affirmative action compliance pzo
grams-nonconstruction contracts. Order No. 4 (41 CFR Part 60-2), issued by the Secretary of Labor, sets forth requirements for the development of affirmative action compliance programs for nonconstruction contractors. 88.8 Affirmative action compliance pro
grams-construction contracts. (a) In each area designated by the Office of Federal Contract Compliance for special compliance attention under Federal, State, or locally established compliance plans, the rules, regulations, and relevant orders of the Office of Federal Contract Compliance for the area shall be governing with respect to development, maintenance, and submission of affirmative action programs by bidders and contractors. Copies of such rules, regulations, and relevant orders promulgated by the Office of Federal Contract Compliance shall be furnished contractors by EPA in the instance of direct EPA construction contracting and to EPA's financial assistance recipient for submission to contractors in the instance of an EPA financially assisted construction contract.
(b) Outside the areas referred to in paragraph (a) of this section, and unless otherwise exempted by the Administrator, construction contracts for $500,000 or more, and subcontracts for $100,000 or more under such contracts, shall require that contractors and subcontractors awarded such contracts and subcontracts must engage in affirmative action directed at promoting and ensuring equal employment opportunity in the workforce under the
contracts or subcontracts, such affirmative action to include, as appropriate, specific, result-oriented efforts such as:
(1) Notifying community organizations that the contractor has employment opportunities available and maintaining records of the organizations' response. Such organizations may include but shall not be limited to:
(i) Local women's organizations.
(iii) Minority construction workers' and contractors' associations.
(iv) Local Human Rights Councils or organizations.
(v) Local Urban League chapter.
(vi) Local high school and college job placement counselors.
(vii) Local minority churches.
(viii) Local Indian Tribal Councils and Indian centers.
(ix) Local Spanish-speaking organizations.
(x) Local National Association for the Advancement of Colored People (NAACP) chapters.
(xi) Local Organization of Industrial Centers.
(xii) Oriental Community centers.
(2) Maintaining a file of the names and addresses of each minority worker referred to the contractor and what action was taken with respect to each such referred worker, and if the worker was not employed, the reasons therefor. If such worker was not sent to the union hiring hall for referral or if such worker was not employed by the contractor, the contractor's file should document this and the reasons therefor.
(3) Prompt notification to the Envi. ronmental Protection Agency when the union or unions with whom the contractor has a collective bargaining agreement has not referred to the contractor a minority worker sent by the contractor or the contractor has other information that the union referral process has impeded him in his efforts to meet his goal.
(4) Participation by the contractor in training programs in the area, especially those funded by the Department of Labor.
(5) Dissemination of the contractor's EEO policy within his own organiza
tion by including it in any policy when qualified, interested contractors manual; by publicizing it in company are not engaged. newspapers, annual reports, etc.; by (c) The goal of the affirmative conducting staff,
staff, employees, and action required herein is insurance of union representatives' meetings to ex- equal employment opportunity. It is plain and discuss the policy; by post- recognized that achievement of this ing the policy; and by specific review goal and appraisal of effort to achieve of the policy with minority employees. it pose special problems for construc
(6) Dissemination of the contractor's tion contractors because of the tempoEEO policy externally and discussions rary and shifting nature of the emof it with all recruitment sources; ad- ployer-employee relationship in the vertising in news media specifically in- construction industry, varying labor cluding minority news media; and by market conditions, and varying local notification and discussion of the contracting practices. Still, there are policy with all subcontractors and sup- parameters by which effort and pliers.
achievement can be evaluated. Where (7) Making specific and constant per- a contractor employs no minorities in sonal (both oral and written) recruit
his entire workforce, a legitimate prement efforts directed at all minority sumption arises that the contractor organizations, schools with minority has taken no affirmative action to students, minority recruitment organi- ensure equal employment opportunity zations and minority training organi- as herein required. The burden of rezations, within the contractor's re
futing this presumption rests with the cruitment area.
contractor. Similarily, if the only mi. (8) Making specific efforts to encour
norities a contractor employs are in age present minority employees to re
the unskilled trades of his workforce, cruit their friends and relatives.
a legitimate presumption arises that (9) Validating all employment speci
the contractor has taken no affirmafications, selection requirements, tests,
tive action to ensure equal employ. and the like.
ment opportunity in his skilled trade (10) Making every effort to promote
workforce. Again the burden of refutafter school, summer, and vacation
ing the presumption rests with the employment to minority youths.
contractor. On the other hand, if a
contractor employs minorities in every (11) Developing on-the-job and par
trade of his workforce and maintains ticipating and assisting in any associa
such employment among the trades tion or employee-group training programs relevant to the contractor's em
over the entire life of his contract, a ployee needs consistent with its obliga
legitimate presumption arises that the
contractor has taken affirmative tions under this part.
action to achieve equal employment (12) Continual inventorying and
opportunity. The burden of refuting evaluating all minority personnel for
this presumption rests with the promotion opportunities and encour.
Agency. aging minority employees to seek such
(d) In connection with evaluating a opportunities.
contractor's affirmative action effort, (13) Making sure that seniority prac
it shall be no excuse that any union tices, job classification, etc., do not
with which a contractor has a collechave discriminatory effect.
tive bargaining agreement providing (14) Making certain that all facilities
for exclusive referral fails to refer miand company activities are nonsegre- nority employees. Discrimination in gated.
referral for employment, even if pur(15) Continuously monitoring all suant to provisions of a collective bar. personnel activities to ensure EEO gaining agreement, is prohibited by policy implementation.
the National Labor Relations Act and (16) Circularizing minority contrac- Title VII of the Civil Rights Act of tor associations and soliciting subcon- 1964. The fact that a contractor has tract work from available minority delegated the responsibility for some contractors, and maintaining a file of of his employment practices to ansuch effort, including explanations, other organization or agency and that
the delegatee organization or agency prevents the contractor from meeting his affirmative action EEO obligations pursuant to the Order does not vitiate the contractor's basic responsibilities under the Order.
(e) Where review of a contractor's workforce discloses an absence of minority employees among all trades, or a disproportionate representation of minorities in the workforce from what reasonably might be expected from the availability of such employees in the serving labor market area, the contractor will be called upon to show what affirmative good faith efforts he has made to ensure equal employment opportunity in his workforce. In this connection, good faith efforts shall be defined as: Contractor's efforts demonstrated by documentation showing his communications with minority community organizations having knowledge of the availability of minor. ity workers or the ability to refer minorities for work. Such organizations shall include but not be limited to the organizations listed under $ 8.8(b)(1). An additional ingredient of acceptable good faith efforts by a contractor is any effort made to obtain minority subcontractors for any portion of the work subcontracted.
(f) As evidence of his understanding of and agreement with the affirmative action requirements herein, each bidder on construction contracts where the bid is $500,000 or more shall file a signed certification with his bid acknowledging his understanding of the affirmative action requirements herein and certifying his agreement to make a good faith effort to achieve and maintain equal employment opportunity in the workforce under this contract through affirmative actions as herein specified. The certification also shall contain an estimate prepared by the bidder identifying the trades expected to be used in construction of the contract being bid; an estimate of the total manhours of work to be utilized by each trade in the performance of the contract; and, if determinable, an estimate of the minori. ty manhours of work to be utilized in each trade. The certification also shall contain an undertaking by the bidder that he will obtain from each of his
subcontractors a subcontractor's certification required by these regulations. The completed certification must be signed by an official of the bidder capable of binding the company and be filed with the bid as part of the bid.
(g) Prior to award of any subcontract for $100,000 or more for work under a construction contract for $500,000 or more, regardless of tier, the prospective subcontractor must execute and submit to the prime contractor a certification acknowledging his understanding of the affirmative action requirements herein and certifying his agreement to make a good faith effort to achieve and maintain equal employment opportunity in the workforce under his subcontract through affirmative actions as herein specified. The certification also shall contain an estimate prepared by the bidder identifying the trades expected to be used in the work performed under the subcontract; an estimate of the total manhours of work to be utilized by each trade in the performance of the work; and, if determinable, an estimate of the minority manhours of work to be utilized in each trade. The certification also shall contain an undertaking by the subcontractor that he will obtain a certification as required herein from each of his subcontractors and submit it to the prime contractor prior to award of such subcontract. The completed and signed subcontractor's certification shall be made a part of the subcontract to which it applies. Any subcontract subject to these requirements which is executed without incorporation of a signed and completed subcontractor's certification shall be ineligible for Agency financial assistance.
(h) Notwithstanding the express exclusion authorized herein, bidders on contracts where the bid is less than $500,000—but in no event below $10,000—may be required to file certifications as described above with their bids whenever circumstances with respect to particular construction or labor market areas make it necessary in the interests of assuring compliance with the requirements of the Order. Subcontractors under such contracts shall be required to file certifications as required herein.
(1) When pursuant to these regula- quest. Replies from the Compliance tions, submission of a certification is Agency will be transmitted to the Conrequired to be made with bids or pro- tracting Officer by the ADCCO. posals for contracting, standards for (b) Nonconstruction contracts of less such certification shall be incorporat- than $1 million. Except for special sited in the bid invitations or requests uations where the Agency believes a for proposals issued in connection with prospective contractor or subcontracsuch contracts.
tor is unable or unwilling to comply (j) Where pursuant to 8 8.8(a) or with the requirements of the equal op$ 8.8(b) of these regulations, bidders
portunity clause, as provided for in are required to submit certifications,
$ 8.6(a) herein, preaward compliance written and signed affirmative action
reviews are not required for nonconplans, goals and timetables for minori.
struction contracts of less than $1 milty manpower utilization, or other doc
lion. uments with their bids, such material (c) Construction contracts in areas must be completed in detail exactly as
designated by the Office of Federal prescribed and be received prior to bid
Contract Compliance for special comopening. Failure to submit the materi
pliance attention under Federal and al prior to bid opening shall render
locally established and approved Comthe bid non-responsive insofar as com
pliance Plans. The Contracting Offipliance with Agency equal employ
cer or approving official shall notify ment opportunity requirements is concerned. Determinations on the ques
the appropriate Regional DCCO of
the proposed contracting. The Regiontion of responsiveness of bids insofar
al DCCO shall carry out the duties as filing of the required equal employment opportunity submissions de
prescribed for contracting agencies by scribed above are concerned shall be
the rules, regulations, guidelines, and
procedures promulgated by the Office made by the Agency.
of Federal Contract Compliance for 8 8.9 Award of contracis.
the affected area. No award shall be (a) Nonconstruction contracts of $1
made or approved by the Contracting
Officer or approving official until conmillion or more. The Contracting Offi
tract compliance clearance has been cer shall notify the ADCCO of the
received from the Regional DCCO. proposed contracting. No award shall be made by the Contracting Officer
(d) Construction contracts in areas until contract compliance clearance
other than those designated by the has been received from the ADCCO.
Office of Federal Contract Compliance (!) If EPA is the Compliance Agency for special compliance attention under for the industry concerned in the pro
Federal or locally established and apposed contracting, the ADCCO will
proved Compliance Plans. The Conrefer the contracting information to
tracting Officer or approving official the appropriate individual on his staff
shall notify the appropriate Regional for the Preaward Equal Opportunity
DCCO of the proposed contracting. Compliance Review required by
The Regional DCCO shall inform the 8 8.6(a). Directions and advice respect
Officer or approving offiing contract compliance clearance for
cial of the EPA requirements respectthe proposed contracting will be for
the proposed contracting. No warded to the Contracting Officer by
award shall be made or approved by the ADCCO within 30 days following
the Contracting Officer or approving
official until receipt of the contracting information.
contract compliance (2) If any agency other than EPA is clearance has been received from the the Compliance Agency for the indus
Regional DCCO. try concerned, the ADCCO shall notify the designated Compliance
8 8.10 Participation in areawide equal emAgency and request it to take appro
ploymeni opportunity program. priate action and make appropriate Any contractor who is a participant findings in accordance with $ 8.6(a) of in, or is a member of an organization these regulations within 30 days fol- or association which participates in, an lowing receipt of the ADCCO's re- areawide equal employment opportu