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.

§ 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, subcontractors procure supplies or services in less than usual quantities to avoid applicability of the equal opportunity clause.

or

(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 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 compliance 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

tion, the Administrator will notify the Director in writing within 30 days.

§ 8.6 Pre-bid requirements and confer

ences.

(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 REVIEWS

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 instance 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, 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 con

tracts where projects costs reasonably may be expected to exceed $500,000:

PRE-CONSTRUCTION EQUAL OPPORTUNITY
COMPLIANCE CONFERENCE

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.

§ 8.7 Affirmative action compliance programs-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.

§ 8.8 Affirmative action compliance programs-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 affirm

ative 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.

(ii) Minority employment agencies. (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 Environmental 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 organization by including it in any policy

manual; by publicizing it in company newspapers, annual reports, etc.; by conducting staff, employees, and union representatives' meetings to explain and discuss the policy; by posting the policy; and by specific review of the policy with minority employees.

(6) Dissemination of the contractor's EEO policy externally and discussions of it with all recruitment sources; advertising in news media specifically including minority news media; and by notification and discussion of the policy with all subcontractors and suppliers.

(7) Making specific and constant personal (both oral and written) recruitment efforts directed at all minority organizations, schools with minority students, minority recruitment organizations and minority training organizations, within the contractor's recruitment area.

(8) Making specific efforts to encourage present minority employees to reIcruit their friends and relatives.

(9) Validating all employment specifications, selection requirements, tests, and the like.

(10) Making every effort to promote after school, summer, and vacation employment to minority youths.

(11) Developing on-the-job and participating and assisting in any association or employee-group training programs relevant to the contractor's employee needs consistent with its obligations under this part.

(12) Continual inventorying and evaluating all minority personnel for promotion opportunities and encouraging minority employees to seek such opportunities.

(13) Making sure that seniority practices, job classification, etc., do not have discriminatory effect.

(14) Making certain that all facilities and company activities are nonsegregated.

(15) Continuously monitoring all personnel activities to ensure EEO policy implementation.

(16) Circularizing minority contractor associations and soliciting subcontract work from available minority contractors, and maintaining a file of such effort, including explanations, when qualified, interested contractors are not engaged.

(c) The goal of the affirmative action required herein is insurance of equal employment opportunity. It is recognized that achievement of this goal and appraisal of effort to achieve it pose special problems for construction contractors because of the temporary and shifting nature of the employer-employee relationship in the construction industry, varying labor market conditions, and varying local contracting practices. Still, there are parameters by which effort and achievement can be evaluated. Where a contractor employs no minorities in his entire workforce, a legitimate presumption arises that the contractor has taken no affirmative action to ensure equal employment opportunity as herein required. The burden of refuting this presumption rests with the contractor. Similarily, if the only minorities a contractor employs are in the unskilled trades of his workforce, a legitimate presumption arises that the contractor has taken no affirmative action to ensure equal employment opportunity in his skilled trade workforce. Again the burden of refuting the presumption rests with the contractor. On the other hand, if a contractor employs minorities in every trade of his workforce and maintains such employment among the trades over the entire life of his contract, a legitimate presumption arises that the contractor has taken affirmative action to achieve equal employment opportunity. The burden of refuting this presumption rests with the Agency.

(d) In connection with evaluating a contractor's affirmative action effort, it shall be no excuse that any union with which a contractor has a collective bargaining agreement providing for exclusive referral fails to refer minority employees. Discrimination in referral for employment, even if pursuant to provisions of a collective bargaining agreement, is prohibited by the National Labor Relations Act and Title VII of the Civil Rights Act of 1964. The fact that a contractor has delegated the responsibility for some of his employment practices to another 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 minority 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 minority 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 subcon[tract 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 O 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.

(i) When pursuant to these regulations, submission of a certification is

required to be made with bids or proposals for contracting, standards for such certification shall be incorporated in the bid invitations or requests for proposals issued in connection with such contracts.

(j) Where pursuant to § 8.8(a) or § 8.8(b) of these regulations, bidders are required to submit certifications, written and signed affirmative action plans, goals and timetables for minority manpower utilization, or other documents with their bids, such material must be completed in detail exactly as prescribed and be received prior to bid opening. Failure to submit the material prior to bid opening shall render the bid non-responsive insofar as compliance with Agency equal employment opportunity requirements is concerned. Determinations on the question of responsiveness of bids insofar as filing of the required equal employment opportunity submissions described above are concerned shall be made by the Agency.

§ 8.9 Award of contracts.

(a) Nonconstruction contracts of $1 million or more. The Contracting Officer shall notify the ADCCO of the proposed contracting. No award shall be made by the Contracting Officer until contract compliance clearance has been received from the ADCCO.

(1) If EPA is the Compliance Agency for the industry concerned in the proposed contracting, the ADCCO will refer the contracting information to the appropriate individual on his staff for the Preaward Equal Opportunity Compliance Review required by § 8.6(a). Directions and advice respecting contract compliance clearance for the proposed contracting will be forwarded to the Contracting Officer by the ADCCO within 30 days following receipt of the contracting information.

(2) If any agency other than EPA is the Compliance Agency for the industry concerned, the ADCCO shall notify the designated Compliance Agency and request it to take appropriate action and make appropriate findings in accordance with § 8.6(a) of these regulations within 30 days following receipt of the ADCCO's request. Replies from the Compliance