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(c) In any case in which the bidder, prospective prime contractor or proposed subcontractor who participated in a previous contract or subcontract subject to Executive Orders 10925, 11114, or 11246 has not filed report due under the applicable filing requirements, the contract or subcontract shall not be awarded unless such contractor or subcontractor submits a report covering the delinquent period or such other period specified by the Director, OFCC, or the NASA Contract Compliance Officer and notifies the contracting officer of such submission.

(d) A bidder or prospective prime contractor or proposed subcontractor shall be required to submit such information, including copies of affirmative action programs, as the NASA Contract Compliance Officer or the Director, OFCC, requests prior to the award of the contract or subcontract. When a determination has been made to award the contract or subcontract to a specific contractor, such contractor shall be required, prior to the award or after the award, or both, to furnish such information, including copies of affirmative action programs, as the NASA Contract Compliance Officer or the Director, OFCC, requests.

(e) Failure to file timely, complete, and accurate reports as required constitutes noncompliance with the prime contractor's or subcontractor's obligations under the Equal Opportunity clause and is the basis for the imposition by the NASA Contract Compliance Officer, or by the Director, OFCC, of any sanctions authorized by these regulations or for cancellation on termination of the subcontract by an applicant, prime contractor or subcontractor. Any such failure shall be reported in writing to the Director, OFCC, by the NASA Contract Compliance Officer as soon as practicable after it occurs.

(f) Reports filed and information furnished pursuant to this Subpart 8 shall be used only in connection with the administration of the Order, the Civil Rights Act of 1964, or in furtherance of the purpose of the Order and Act and, to the extent consistent with this purpose, shall be held in confidence as privileged information in accordance with 32 CFR 286.6(b)(4) when requested by the offeror, contractor, or subcontractor. 12.813 Enforcement Procedures.

12.813-1 Informal Enforcement Procedures. When a complaint investigation or compliance review indicates the existence of an apparent violation of the Equal Opportunity clause in 12.804 or apparent noncompliance with the contractor's affirmative action program established in accordance with 12.807, the matter should be resolved to the greatest extent possible by informal means, including conference, conciliation, mediation, and persuasion. Such informal means may include informal hearings when the Director, OFCC, or the NASA Contract Compliance Officer (CCO) with the approval of the Director, OFCC, decides that such informal hearings would be helpful in determining the status of the contractor's or subcontractor's compliance with the terms of the Equal Opportunity clause or his affirmative action program. The informal hearings shall be conducted by a hearing officer appointed by the Director, OFCC, or the CCO. The contractor or subcontractor involved shall be advised in writing of the time and place of the hearing, and other relevant information. Parties to informal hearings may be represented by counsel and shall have a fair opportunity to present any relevant material. Formal rules of evidence shall not apply to such proceedings. 12.813-2 Formal Enforcement Procedures.

12.813

CFR TITLE 41 CHAPTER 18

EQUAL EMPLOYMENT OPPORTUNITY

(a) When the informal enforcement procedures described in 12.813-1 have not resolved the matter, the CCO shall issue a notice to the contractor informing him that he will have 30 days to develop an acceptable Affirmative Action Program (AAP), or to correct deficiencies in his program, or otherwise demonstrate why enforcement proceedings under Section 209(b) of Executive Order 11246 should not be instituted. The contractor should be informed that such enforcement proceedings could result in cancellation or termination of his contract, and other proceedings which may ultimately result in his being declared ineligible for future Government contracts. During the 30-day period, every effort shall be made by the NASA Contract Compliance Officer (CCO) through conciliation, mediation, and persuasion to resolve the deficiencies which led to the determination of noncompliance.

(b) If the contractor fails to show acceptable reasons for his failure to develop an AAP, or fails to develop or effectively implement an acceptable AAP, or otherwise fails to correct apparent violations of the Equal Opportunity clause within the 30-day period provided for in (a) above, the NASA CCO shall notify the head of the installation who shall notify the CEO and the contracting officer, as appropriate.

(c) Upon the approval of the Director, OFCC, and the NASA to request a hearing on the question of whether existing Government contracts should be canceled or terminated and whether the contractor should be declared ineligible for future Government contracts. The contractor shall be informed that the hearings are to be held in accordance with Section 208(b) of Executive Order 11246. The contractor shall also be informed that his failure to request a hearing within 10 calendar days will result in his current Government contracts being canceled or terminated for default and his being declared ineligible for future Government contracts.

(d) If a request for a hearing has not been received after 10 calendar days from the date of the notice given by the Contract Compliance Officer (CCO) pursuant to (c) above, the Contract Compliance Officer (CCO) shall request approval from the Director, OFCC, to declare the contractor ineligible for future contracts, and cancel or terminate for default existing contracts.

(e) If the contractor requests a hearing in response to the notice sent pursuant to (c) above, the Director, OFCC, or the DCCO with the approval of the Director, OFCC, may convene formal hearings. Reasonable notice of a hearing shall be sent by certified mail, return receipt requested, to the last known address of the prime contractor or subcontractor concerned. Such notice shall contain the time and place of the hearing, a statement of the provisions of the Order and regulations pursuant to which the hearing is to be held, and a concise statement of the matters on which the action furnishing the basis of the hearing has been taken or is proposed to be taken. A copy of the notice shall be sent to OFCC. Hearings shall be held before a hearing officer designated by the Director, OFCC, or the CCO. Each party shall have the right to counsel, a fair opportunity to present evidence and argument, and to cross-examine. Wherever a formal hearing is based in whole or in part on matters subject to the collective bargaining agreement and compliance may necessitate a revision of such agreement, any labor organization which is a signatory to the agreement shall have the right to participate as a party.

NASA PROCUREMENT REGULATION

12.813-2

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Any other person or organization shall be permitted to participate upon a showing that such person or organization has an interest in the proceedings and may contribute materially to the proper disposition thereof. The hearing officer shall make his proposed findings and conclusions upon the basis of the record before him.

(f) When the hearing is conducted by NASA, the hearing officer will make his report and recommendation to the CCO. The decision of the CCO shall be final upon the approval of the Director, OFCC. When the hearing is conducted by a hearing officer appointed by the Director, OFCC, the hearing officer will make recommendations to the Director, OFCC, who will make the final decision. Parties will be furnished with copies of the hearing officer's recommendations and will be given an opportunity to submit their views.

12.814 Sanctions and Penalties.

(a) With the prior approval of the Director, OFCC, the following sanctions and penalties may be exercised against contractors found to be in violation of the Executive Order, the regulations of the Secretary of Labor, or the clause in 12.804.

(i) publication of the names of such contractors or their unions;

(ii) cancellation, termination, or suspension of the contractors' contracts or portions thereof; and

(iii) debarment from future Government contracts, or extensions or modifications of existing contracts until such contractors have established and carried out personnel and employment policies in compliance with the Executive Order, the regulation of the Secretary of Labor, and the compliance program of the Contract Compliance Officer.

(b) The Director, OFCC, may refer any matter arising under the Executive Order to the Department of Justice or to the Equal Employment Opportunity Commission (EEOC) for the institution of appropriate civil or criminal proceedings.

(c) The above sanctions and penalties may be exercised by the Director, OFCC, or the NASA Contract Compliance Officer against any prime contractor, subcontractor, or applicant who fails to take all necessary steps to ensure that no person intimidates, threatens, coerces, or discriminates against any individual for the purpose of interfering with the filing of a complaint, furnishing information, or assisting or participating in any manner in an investigation, compliance review, hearing, or any other activity related to the administration of the Executive Order or any other Federal, State, or local laws requiring equal employment opportunity.

(d) Those declared ineligible under (a) or (c) above may request reinstatement in a letter directed to the Director, OFCC. In connection with the reinstatement proceedings, the prime contractor or subcontractor shall be required to show that it has established and will carry out employment policies and practices in compliance with the Equal Opportunity clause.

12.850 Coordination With Procurement Offices. The installation CEO office will insure that the procurement office is apprised in a timely manner of all action to be taken which may affect procurement operations. Such actions include delays in completing preaward compliance reviews, receipt of complaints, the scheduling and conduct of hearings, and the proposed imposition of sanctions or penalties. In addition, in matters involving sanctions or penalties, the Assistant Administrator for

12.814

CFR TITLE 41 CHAPTER 18

EQUAL EMPLOYMENT OPPORTUNITY

Procurement, NASA Headquarters, shall also be notified in a timely manner prior to the imposition of a sanction or penalty.

12.851 Delegation Between NASA Installations. When a prime or subcontract is to be performed at a NASA installation other than the installation which awarded the prime contract, the EEO compliance function shall be delegated to the NASA installation at which the work is to be performed. This will permit the contract relations specialist to provide early and relevant monitoring of the contract.

NASA PROCUREMENT REGULATION

12.851

Subpart 9-Nondiscrimination Because of Age

12.901 Policy Regarding Nondiscrimination Because of Age. It is the policy of the Executive Branch of the Government (i) that contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement; and (ii) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment, unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. This policy is stated in Executive Order No. 11141 dated February 12, 1964. Any complaint regarding a concern's compliance with the foregoing policy should be brought to the attention of the concern by a communication (in writing, if appropriate) which states the policy, indicates that the concern's compliance with the policy has been questioned, and requests that the concern take any appropriate steps which may be necessary to comply with the policy.

NASA PROCUREMENT REGULATION

12.901

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