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8 60–1.5 Exemptions.

for its duration, regardless of the (a) General_0) Transactions of amounts ordered, or reasonably ex. $10,000 or under. Contracts and sub

pected to be ordered in any year. contracts not exceeding $10,000, other

(3) Work outside the United States. than Government bills of lading, and

Contracts and subcontracts are other than contracts and subcontracts

exempt from the requirements of the with depositories of Federal funds in

equal opportunity clause with regard any amount and with financial institu to work performed outside the United tions which are issuing and paying

States by employees who were not reagents for U.S. savings bonds and sav.

cruited within the United States. ings notes, are exempt from the re

(4) Contracts with State or local govquirements of the equal opportunity ernments. The requirements of the clause. In determining the applicabil. equal opportunity clause in any conity of this exemption to any federally tract or subcontract with a State or assisted construction contract, or sub local government (or any agency, incontract thereunder, the amount of strumentality or subdivision thereof) such contract or subcontract rather shall not be applicable to any agency, than the amount of the Federal finan- instrumentality or subdivision of such cial assistance shall govern. No agency, government which does not particicontractor, or subcontractor shall pro pate in work on or under the contract cure supplies or services in a manner or subcontract. In addition, any so as to avoid applicability of the agency, instrumentality or subdivision equal opportunity clause: Provided, of such government, except for educathat where a contractor has contracts tional institutions and medical facilior subcontracts with the Government ties, are exempt from the requirein any 12-month period which have an ments of filing the annual compliance aggregate total value (or can reason report provided for by $ 60-1.7(a)(1) ably be expected to have an aggregate and maintaining a written affirmative total value) exceeding $10,000, the action compliance program prescribed $10,000 or under exemption does not by $ 60-1.40 and Part 60-2 of this apply, and the contracts are subject to chapter. the order and the regulations issued (5) Contracts with certain educapursuant thereto regardless of wheth- tional institutions. It shall not be a er any single contract exceeds $10,000. violation of the equal opportunity

(2) Contracts and subcontracts for clause for a school, college, university, indefinite quantities. With respect to or other educational institution or incontracts and subcontracts for indefi- stitution of learning to hire and nite quantities (including, but not lim- employ employees of a particular reliited to, open end contracts, require gion if such school, college, university, ment-type contracts, Federal Supply or other educational institution or inSchedule contracts, “call-type" con- stitution of learning is, in whole or in tracts, and purchase notice agree- substantial part, owned, supported, ments), the equal opportunity clause controlled, or managed by a particular shall be included unless the purchaser religion or by a particular religious has reason to believe that the amount corporation, association, or society, or to be ordered in any year under such if the curriculum of such school, colcontract will not exceed $10,000. The lege, university, or other educational applicability of the equal opportunity institution or institution of learning is clause shall be determined by the pur- directed toward the propagation of a chaser at the time of award for the particular religion. The primary first year, and annually thereafter for thrust of this provision is directed at succeeding years, if any. Notwith religiously oriented church-related colstanding the above, the equal opportu- leges and universities and should be so nity clause shall be applied to such interpreted. contract whenever the amount of a (6) Work on or near Indian reservasingle order exceeds $10,000. Once the tions. It shall not be a violation of the equal opportunity clause is determined equal opportunity clause for a conto be applicable, the contract shall struction or nonconstruction contraccontinue to be subject to such clause tor to extend a publicly announced

preference in employment to Indians (d) Withdrawal of exemption. When living on or near an Indian reservation any contract or subcontract is of a in connection with employment oppor. class exempted under this section, the tunities on or near an Indian reserva Director may withdraw the exemption tion. The use of the word "near" for a specific contract or subcontract would include all that area where a or group of contracts or subcontracts person seeking employment could rea when in his judgment such action is sonably be expected to commute to

necessary or appropriate to achieve and from in the course of a work day.

the purposes of the order. Such withContractors or subcontractors extend

drawal shall not apply to contracts or ing such a preference shall not, howev

subcontracts awarded prior to the er, discriminate among Indians on the

withdrawal, except that in procurebasis of religion, sex, or tribal affili

ments entered into by formal advertisation, and the use of such a preference

ing, or the various forms of restricted shall not excuse a contractor from

formal advertising, such withdrawal complying with the other require

shall not apply unless the withdrawal ments contained in this chapter.

is made more than 10 calendar days (b) Specific contracts and facilities

before the date set for the opening of (1) Specific contracts. The Director

the bids. may exempt an agency or any person from requiring the inclusion of any or (43 FR 49240, Oct. 20, 1978; 43 FR 51400, all of the equal opportunity clause in Nov. 3, 1978) any specific contract or subcontract when he deems that special circum 8 60-1.6 (Reserved) stances in the national interest so require. The Director may also exempt

8 60-1.7 Reports and other required inforgroups or categories of contracts or mation. subcontracts of the same type where

(a) Requirements for prime contrache finds it impracticable to act upon

tors and subcontractors. (1) Each each request individually or where

prime contractor and subcontractor group exemptions will contribute to

shall file annually, on or before the convenience in the administration of 21st

31st day of March, complete and accuthe order. (2) Facilities not connected with

rate reports on Standard Form 100

(EEO-1) promulgated jointly by the contracts. The Director may exempt

Office of Federal Contract Compliance from the requirements of the equal

Programs, the Equal Employment Opopportunity clause any of a prime contractor's or subcontractor's facilities

portunity Commission and Plans for which he finds to be in all respects

Progress or such form as may hereafseparate and distinct from activities of

ter be promulgated in its place if such the prime contractor or subcontractor

prime contractor or subcontractor (i) related to the performance of the con

is not exempt from the provisions of tract or subcontract, provided that he

these regulations in accordance with also finds that such an exemption will

$ 60-1.5; (ii) has 50 or more employees; not interfere with or impede the effec

(iii) is a prime contractor or first tier tuation of the order.

subcontractor; and (iv) has a contract, (c) National security. Any require

subcontract or purchase order ment set forth in these regulations in

amounting to $50,000 or more or this part shall not apply to any con

serves as a depository of Government tract or subcontract whenever the funds in any amount, or is a financial head of an agency determines that

institution which is an issuing and such contract or subcontract is essen

paying agent for U.S. savings bonds tial to the national security and that and savings notes: Provided, That any its award without complying with such subcontractor below the first tier requirement is necessary to the na- which performs construction work at tional security. Upon making such a the site of construction shall be redetermination, the head of the agencyquired to file such a report if it meets will notify the Director in writing requirements of paragraphs (a)(1) (i), within 30 days.

(ii), and (iv) of this section.

(2) Each person required by $ 60- determination has been made to award 1.7(a)(1) to submit reports shall file the contract or subcontract to a specifsuch a report with the contracting or ic contractor, such contractor shall be administering agency within 30 days required, prior to award, or after the after the award to him of a contract or award, or both, to furnish such other subcontract, unless such person has information as the applicant or the Disubmitted such a report within 12 rector requests. months preceding the date of the (c) Use of reports. Reports filed puraward. Subsequent reports shall be suant to this section shall be used only submitted annually in accordance with

in connection with the administration & 60-1.7(a)(1), or at such other inter of the order, the Civil Rights Act of vals as the Director may require. The 1964, or in furtherance of the purposes Director may extend the time for of the order and said Act. filing any report.

(3) The Director or the applicant, on 860-1.8 Segregated facilities. their own motions, may require a con

(a) General. In order to comply with tractor to keep employment or other

his obligations under the equal opporrecords and to furnish, in the form re

tunity clause, a prime contractor or quested, within reasonable limits, such information as the Director or the ap

subcontractor must insure that facili

ties provided for employees are providplicant deems necessary for the ad

ed in such a manner that segregation ministration of the order. (4) Failure to file timely, complete

on the basis of race, color, religion, or and accurate reports as required con

national origin cannot result. He may stitutes noncompliance with the prime

neither require such segregated use by contractor's or subcontractor's obliga

written or oral policies nor tolerate tions under the equal opportunity

such use by employee custom. His obliclause and is ground for the imposi

gation extends further to insuring tion by the Director, an applicant,

that his employees are not assigned to prime contractor or subcontractor, of

perform their services at any location, any sanctions as authorized by the

under his control, where the facilities order and the regulations in this part.

are segregated. This obligation ex(b) Requirements for bidders or pro

tends to all contracts containing the spective contractors—(1) Certification equal opportunity clause regardless of of compliance with Part 60-2: Affirma.

the amount of the contract. The term tive Action Programs. Each agency

"facilities” as used in this section shall require each bidder or prospec

means waiting rooms, work areas, restive prime contractor and proposed

taurants and other eating areas, time subcontractor, where appropriate, to clocks, restrooms, washrooms, locker state in the bid or in writing at the rooms, and other storage or dressing outset of negotiations for the contract: areas, parking lots, drinking tour

areas, parking lots, drinking fountains, (i) Whether it has developed and has

recreation or entertainment areas, on file at each establishment affirma. transportation, and housing facilities tive action programs pursuant to Part provided for employees. 60-2 of this chapter; (ii) whether it (b) Certification by pri

(b) Certification by prime contrachas participated in any previous con- tors and subcontractors. Prior to the tract or subcontract subject to the award or any nonexempt Government equal opportunity clause; (iii) whether contract of subcontract or federally asit has filed with the Joint Reporting sisted construction contract or subconCommittee, the Director or the Equal tract, each agency or applicant shall Employment Opportunity Commission require the prospective prime contracall reports due under the applicable tor and each prime contractor and filing requirements.

subcontractor shall require each sub(2) Additional information. A bidder contractor to submit a certification, in or prospective prime contractor or pro- the form approved by the Director, posed subcontractor shall be required that the prospective prime contractor to submit such information as the Di- or subcontractor does not and will not rector requests prior to the award of maintain any facilities he provides for the contract or subcontract. When a his employees in a segregated manner,

Rights Act of 1964 or other provisions of Federal law.

or permit his employees to perform their services at any location, under his control, where segregated facilities are maintained; and that he will obtain a similar certification in the form approved by the Director, prior to the award of any nonexempt subcontract. [43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3, 1978)

$ 60-1.9 Compliance by labor unions and

by recruiting and training agencies. (a) Whenever compliance with the equal opportunity clause may necessitate a revision of a collective bargaining agreement the labor union or unions which are parties to such an agreement shall be given an adequate opportunity to present their views to the director.

(b) The Director shall use his best efforts, directly and through agencies, contractors, subcontractors, applicants, State and local officials, public and private agencies, and all other available instrumentalities, to cause any labor union, recruiting and training agency or other representative of workers who are or may be engaged in work under contracts and subcontracts to cooperate with, and to comply in the implementation of, the purposes of the order.

(c) In order to effectuate the purposes of paragraph (a) of this section, the Director may hold hearings, public or private, with respect to the practices and policies of any such labor union or recruiting and training agency.

(d) The Director may notify any Federal, State, or local agency of his conclusions and recommendations with respect to any such labor organization or recruiting and training agency which in his judgment has failed to cooperate with himself, agencies, prime contractors, subcontractors, or applicants in carrying out the purposes of the order. The Director also may notify the Equal Employ ment Opportunity Commission, the Department of Justice, or other appropriate Federal agencies whenever he has reason to believe that the practices of any such labor organization or agency violates title VII of the Civil

860-1.10 Foreign government practices.

Contractors shall not discriminate on the basis of race, color, religion, sex, or national origin when hiring or making employee assignments for work to be performed in the United States or abroad. Contractors are exempted from this obligation only when hiring persons outside the United States for work to be performed outside the United States (see 41 CFR 60-1.5(a)(3)). Therefore, a contractor hiring workers in the United States for either Federal or nonfederally connected work shall be in violation of Executive Order 11246, as amended, by refusing to employ or assign any person because of race, color, religion, sex, or national origin regardless of the policies of the country where the work is to be performed or for whom the work will be performed. Should any contractor be unable to acquire a visa of entry for any employee or potential employee to a country in which or with which it is doing business, and which refusal it believes is due to the race, color, religion, sex, or national origin of the employee or potential employee, the contractor must immediately notify the Department of State and the Director of such refusal.

8 60–1.11 Payment or reimbursement of

membership fees and other expenses to

private clubs. (a)(1) A contractor which maintains a policy or practice of paying membership fees or other expenses for employee participation in private clubs or organizations shall ensure that the policy or practice is administered without regard to the race, color, religion, sex, or national origin of employees.

(2) Payment or reimbursement by contractors of membership fees and other expenses for participation by their employees in a private club or organization which bars, restricts or limits its membership on the basis of race, color, sex, religion, or national origin constitutes a violation of Executive Order 11246 except where the contractor can provide evidence that

such restrictions or limitations do not commitment must include the precise abridge the promotional opportunities, action to be taken and dates for comstatus, compensation or other terms pletion. The time period allotted shall and conditions of employment of be no longer than the minimum period those of its employees barred from

necessary to effect such changes. membership because of their race,

Upon approval of the commitment, color, religion, sex, or national origin.

the contractor may be considered in OFCCP shall provide the contractor

compliance, on condition that the with the opportunity to present evi

commitments are faithfully kept. The dence in defense of its actions.

contractor shall be notified that (b) The contractor has the responsi

making such commitments does not bility of determining whether the club

preclude future determinations of or organization restricts membership

noncompliance based on a finding that on the basis of race, color, religion,

the commitments are not sufficient to sex, or national origin. The contractor

achieve compliance. may make separate determinations for

(c) [Reserved) different chapters of an organization, and where it does so, may limit any

(d) Each agency shall include in the necessary corrective action to the par

invitation for bids for each formally ticular chapters which observe dis advertised nonconstruction contract or criminatory membership policies and state at the outset of negotiations for practices.

each negotiated contract, that if the

award, when let, should exceed the [46 FR 3896, Jan. 16, 1981)

amount of $1 million or more, the proEFFECTIVE DATE NOTE: At 46 FR 3896, Jan.

spective contractor and his known 16, 1981, $ 60-1.11 was added. At 46 FR 18951, Mar. 27, 1981, the effective date was

first-tier subcontractors with subcondeferred until further notice.

tracts of $1 million or more will be

subject to a compliance review before Subpart B-General Enforcement;

the award of the contract. No such

contract shall be awarded unless a Compliance Review and Complaint

preaward compliance review of the Procedure

prospective contractor and his known 860-1.20 Compliance reviews.

first-tier $1 million subcontractors has

been conducted within 12 months (a) The purpose of a compliance

prior to the award. The awarding review is to determine if the prime

agency will notify OFCCP and request contractor or subcontractor maintains

appropriate action and findings in acnondiscriminatory hiring and employ.

cordance with this subsection. OFCCP ment practices and is taking affirma

will provide awarding agencies with tive action to insure that applicants

written reports of compliance within are employed and that employees are placed, trained, upgraded, promoted,

30 days following the request. In order and otherwise treated during employ.

to qualify for the award of a contract, ment without regard to race, color, re

a contractor and such first-tier subligion, sex, or national origin. It shall

contractors must be found to be in consist of a comprehensive analysis

compliance pursuant to paragraph (b) and evaluation of each aspect of the

of this section, and with Part 60-2 of aforementioned practices, policies, and these regulations. conditions resulting therefrom. Where [43 FR 49240, Oct. 20, 1978; 43 FR 51400, necessary, recommendations for ap- Nov. 3, 1978) propriate sanctions shall be made.

(b) Where deficiencies are found to 8 60-1.21 Filing complaints. exist, reasonable efforts shall be made

Complaints shall be filed within 180 to secure compliance through concilia

days of the alleged violation unless the tion and persuasion. Before the con

time for filing is extended by the Ditractor can be found to be in compliance with the order, it must make a

rector for good cause shown. specific commitment, in writing, to [43 FR 49240, Oct. 20, 1978; 43 FR 51400, correct any such deficiencies. The Nov. 3, 1978)

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