U.S.C. secs. 831-831dd (1964; Supp. III, 1965-67) and 41 CFR 60-1.6(c).

SOURCE: 34 FR 2552, Feb. 25, 1969, unless otherwise noted.

§ 303.1 Scope.

The regulations in this part set forth policies and procedures for carrying out the requirements of Executive Order No. 11246 of September 24, 1965 (30 FR 12319), Executive Order No. 11375 of October 13, 1967 (32 FR 14303), and the rules and regulations of the Secretary of Labor (33 FR 7804).

$303.2 General.

On May 21, 1968, the Secretary of Labor issued regulations to achieve the aims of Parts II, III, and IV of Executive Order 11246 for the promotion and insuring of equal opportunity for all persons, without regard to race, creed, color, or national origin, employed or seeking employment with Government contractors or with contracts performing under federally assisted construction contracts. Effective October 14, 1968, the term "race, color, religion, sex, or national origin" was substituted for the term "race, creed, color, or national origin," as provided by Executive Order No. 11375. TVA applies the above regulations with respect to all contracts administered by it which are within the scope of the Secretary's regulations. This Part 303 is issued by TVA to implement and supplement the Secretary's regulations.

§ 303.3 Definitions.

As used in this part, the following terms have the meanings stated.

(a) "Administering agency" means any department, agency, and establishment in the executive branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.

(b) “Agency” means any contracting or any administering agency of the Government.

(c) "Applicant" means an applicant for Federal assistance involving a construction contract or other participant

in a program involving a construction contract as determined by regulation of an administering agency. The term also includes such persons after they become recipients of such Federal assistance.

(d) “Compliance agency” means the agency designated by the Director on a geographical, industry, or other basis to conduct compliance reviews and to undertake such other responsibilities in connection with the administration of the order as the Director may determine to be appropriate. In the absence of such a designation, the compliance agency will be determined as follows:

(1) In the case of a prime contractor not involved in construction work, the compliance agency will be the agency whose contracts with the prime contractor have the largest aggregate dollar value;

(2) In the case of a subcontractor not involved in construction work, the compliance agency will be the compliance agency of the prime contractor with which the subcontractor has the largest aggregate value of the subcontracts or purchase orders for the performance of work under contracts;

(3) In the case of a prime contractor or subcontractor involved in construction work, the compliance agency for each construction project will be the agency providing the largest dollar value for the construction project; and

(4) In the case of a contractor who is both a prime contractor and subcontractor, the compliance agency will be determined as if such contractor is a prime contractor only.

(e) "Construction work" means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

(f) "Contract" means any Government contract or any federally assisted construction contract.

(g) "Contracting agency" means any department, agency, establishment, or instrumentality in the executive

branch of the Government, including any wholly owned Government corporation, which enters into contracts.

(h) "Contractor" means, unless otherwise indicated, a prime contractor or subcontractor.

(i) "Director" means the Director, Office of Federal Contract Compliance, U.S. Department of Labor, or any person to whom he delegates authority under the regulations in this part.

means

(j) "Equal opportunity clause" the contract provisions set forth in § 303.4-2 or § 303.4-4 as appropriate.

(k) “Federally assisted construction contract" means any agreement, or modification thereof, between any applicant and a person for construction work which is paid for, in whole or in part, with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.

(1) "Government" means the Government of the United States of America.

(m) "Government contract" means any agreement, or modification thereof, between any contracting agency and any person for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements. The term "services," as used in this paragraph (m) includes, but is not limited to, the following services: Utility, construction, transportation, research, insurance, and fund depositary. The term "Government contract" does not include (1) agreements in which the parties stand in the relationship of employer and employee, (2) federally assisted construction contracts, and (3) contracts for the sale or real and personal property by the Government.

(n) "Hearing officer” means the individual or board of individuals designated to conduct hearings.

(o) "Modification" means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments, and extensions.

(p) "Order" means Parts II, III, and IV of Executive Order No. 11246 of September 24, 1965 (30 FR 12319), any Executive order amending such order, and any other Executive order superseding such order.

(q) "Person" means any natural person, corporation, partnership, unincorporated association, state or local government, and any agency, instrumentality, or subdivision of such a government.

(r) "Prime contractor" means any person holding a contract and, for the purposes of §§ 303.6-5 through 303.611 and § 303.8, any person who has held a contract subject to the order.

(s) "Recruiting and training agency" means any person who refers workers to any contractor, or subcontractor, or who provides or supervises apprenticeship or training for employment by any contractor or subcontractor.

(t) "Rules, regulations, and relevant orders of the Secretary of Labor," as used in the Equal Opportunity clause means rules, regulations, and relevant orders of the Secretary of Labor, or his designee, issued pursuant to the order.

(u) "Secretary" means the Secretary of Labor, U.S. Department of Labor.

(v) "Site of construction" means the general physical location of any building, highway, or other change or improvement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair, and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to the contract or subcontract.

(w) "Subcontract" means any agreement or arrangement between a contractor and any person (in which the partics do not stand in the relationship of an employer and an employee):

§ 303.4-2 Equal opportunity clause.

Equal opportunity. (The following clause is applicable unless this contract is exempt under the rules, regulations, and relevant orders of the Secretary of Labor (41 CFR 60).)

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

(a) 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 by the Contracting

Officer setting forth the provisions of this equal opportunity clause.

(b) 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. (c) 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.

(d) 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.

(e) 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.

(f) 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 further 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.

(g) The Contractor will include the provisions of paragraphs (a) through (g) in every subcontract or purchase 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 sub

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contractor 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.

§ 303.4-3 Federally assisted construction contracts.

Except as otherwise provided, TVA requires the inclusion of the equal opportunity (applicant) clause prescribed in § 303.4-4 as a condition of any grant, contract, loan, insurance, or guarantee involving federally assisted construction which is not exempt from the requirements of the equal opportunity (federally assisted construction) clause contained therein.

§ 303.4-4 Equal opportunity (applicant) clause.

Equal opportunity (applicant). (a) The applicant hereby agrees to incorporate, or cause to be incorporated, into any contract for construction work, or modification thereof, as defined in the rules and 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 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 (federally assisted construction) clause:

Equal opportunity (federally assisted construction). 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 tc post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions 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, a 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, regulation, 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 involved in, or is threatened with, litigation with a subcontractor or vendor as a result 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.

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

(c) The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Contractors and subcontractors with the equal opportunity (federally assisted construction) clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering 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 administering agency in the discharge of the agency's primary responsibility for securing compliance.

(d) The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order No. 11246 of September 24, 1965, with a Contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive order and will carry out such sanctions and penalties for violation of the equal opportunity (federally assisted construction) clause as may be imposed upon Contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D, of the Executive order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings the administering 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 its 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.

Such necessary changes in language may be made in the equal opportunity clause (see §§ 303.4-2 and 303.4-4) as shall be appropriate to identify properly the parties and their undertakings.

§ 303.4-7 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 U.S. savings bonds and notes, contracts and subcontracts less than $50,000, and such other contracts as the Director may designate.

§ 303.4-8 Incorporation by operation of the order and agency regulations.

By operation of the order, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the order and the regulations in this part to include such a clause whether or not it is physically incorporated in such contracts. The clause may also be applied to every nonexempt contract where there is no written contract between TVA and the contractor.

§ 303.4-9 Notice to bidders regarding preaward equal opportunity compliance reviews.

The following notice (see $303.65(d)) shall be included in the invitation for bids for each formally advertised supply contract which may result in an award of $1 million or more:

Preaward equal opportunity compliance reviews. Before award of a contract of $1 million or more under this invitation to bid, the prospective contractor and each of his known first-tier subcontractors who will re