tor, or subcontractor shall procure supplies or services in less than usual quantities to avoid applicability of the Equal Opportunity clause.

(b) Contracts and subcontracts for indefinite quantities. Contracts and subcontracts for indefinite quantities (including, but not limited to, openend contracts, requirement-type contracts, Federal Supply Schedule contracts, calltype contracts, and purchase notice agreements) shall include the Equal Opportunity clause 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.

(c) 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.

(d) Contracts with State or local governments. An agency, subdivision, or other instrumentality of a State or local government is subject to the requirements of the Equal Opportunity clause contained in Federal contracts and subcontracts as follows:

(1) Where the instrumentality is not participating in work on or under a Federal contract or subcontract, it is exempt from the provisions of the clause.

(2) Where the instrumentality, except for educational institutions or medical facilities, is participating in work on or under a Federal contract or subcontract, it is subject to the requirements of the clause except that it is exempt from filing an annual compliance report as provided for in § 1

12.805-4 and maintaining a written affirmative action compliance program as prescribed by § 1-12.810.

(3) Educational institutions and medical facilities of such instrumentalities which are participating in work on or under a Federal contract or subcontract are subject to all the provisions of the Equal Opportunity clause.

(e) National security. Any requirement set forth in the regulations in this subpart shall not apply to any contract or subcontract whenever the head of the agency 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 determination, the head of the agency shall notify the Director in writing within 30 days.

(f) Sales contracts. Contracts providing for the sale of Government real and personal property are exempt from the requirements of the Equal Opportunity clause by reason of the definition of the term "Government contract" (see § 1-12.802(m)).

[33 FR 10715, July 27, 1968, as amended at 38 FR 28818, Oct. 17, 1973]

§ 1-12.804-2 Specific contracts.

The Director may exempt an agency or any person from requiring the inclusion of any or all of the Equal Opportunity clause in any specific contract, or subcontract, when he deems that special circumstances in the national interest so require. The Director may also exempt groups or categories of contracts or subcontracts of the same type where he finds it impracticable to act upon each request individually or where group exemptions will contribute to convenience in the administration of the Order.

§ 1-12.804-3 Facilities not connected with contracts.

The Director may exempt from the requirements of the Equal Opportunity clause any of a prime contractor's or subcontractor's facilities which he finds to be in all respects separate and distinct from the activities of the prime contractor, or subcontractor, related to the performance of the con

tract, or subcontract, provided that he also finds that such an exemption will not interfere with or impede the effectuation of the Order.

§ 1-12.804-4 Effect of exemption.

Notwithstanding the inclusion in any contract or subcontract of the Equal Opportunity clause, the contractor or subcontractor shall be exempt from compliance therewith if the contract or subcontract containing such a clause is exempt.

§ 1-12.804-5 Withdrawal of exemption.

When any contract or subcontract is of a class exempted under this § 112.804, the Director may withdraw the exemption for a specific contract, or subcontract, or group of contracts or subcontracts when in his judgment such action is necessary or appropriate to achieve the purposes of the Order. Such withdrawal shall not apply to contracts or subcontracts awarded prior to the withdrawal except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of bids.

§ 1-12.805 Administration.

§ 1-12.805-1 Duties of agencies.1

(a) General responsibility. Each agency shall be primarily responsible for obtaining compliance with the Equal Opportunity clause, the Order, the regulations of the Secretary of Labor, and orders issued pursuant thereto. Each agency shall cooperate with the Director and shall furnish him such information and assistance as he may require in the performance of his functions under the Order. Such information shall include compliance review reports, schedules of compliance reviews, and any other information relevant to the administration of the Order.

(b) Agency programs. The head of each agency shall, subject to the prior

'See Temporary Regulation 19 published at 35 FR 14747, Sept. 22, 1970, for temporary changes to § 1-12.805-1.

approval of the Director, establish a program and promulgate procedures to carry out the agency's responsibilities for obtaining compliance with the Order and regulations and orders issued pursuant thereto. Each agency head shall also designate a Contract Compliance Officer, who (unless otherwise approved by the Director) shall be appointed by the head of the agency from among the agency's executive personnel to whom the Executive Schedule applies, and such officer shall be subject to the immediate supervision of the head of the agency. All compliance reviews required pursuant to this Subpart 1-12.8 and such other compliance reviews as the Contract Compliance Officer determines to be appropriate shall be conducted by him or his designee. The head of the agency or the Contract Compliance Officer may also designate a Deputy Contract Compliance Officer and Assistant Compliance Officers to assist the Contract Compliance Officer in the performance of his duties. The names of the Contract Compliance Officers and the Deputy Contract Compliance Officers, their addresses, and telephone numbers, and any changes made in their designation shall be furnished to the Director.

(c) Agency regulations. Agency implementation and supplementation of and deviations from this subpart shall be submitted to the Director for review and approval prior to issuance and may be enforced upon approval of the Director, or 60 days after submission if not disapproved by the Director. Deviations from this subpart so submitted to the Director will be deemed to satisfy the requirements of § 1-1.009.

(d) Award of contracts. Sixty days after the effective date (July 1, 1968) of the rules, regulations, and relevant orders of the Secretary of Labor, each agency shall follow the procedures described in this paragraph (d) before the award of any nonexempt contract, unless agency regulations providing alternative procedures have been issued or are under review by the Director, in accordance with paragraph (c) of this § 1-12.805-1. Such alternative procedures may include monetary cutoffs and other limitations consistent with

33-134 0-84-4

the agency resources and contracting processes.

(1) All contracting officers and officers approving applications for Federal financial assistance involving a construction contract shall notify the Contract Compliance Officer or appropriate Deputy or Assistant as soon as practicable of the impending award of each nonexempt contract, the name and address of the prime contractor, anticipated time of performance, name and address of each known subcontractor, whether the prime contractor and known subcontractors have previously held any Government contracts or federally assisted construction contracts subject to Executive Orders No. 10925, 11114, or 11246, and whether the prime contractor has previously filed compliance reports required by Executive Orders No. 10925, 11114, or 11246, or by regulations of the Equal Employment Opportunity Commission issued pursuant to Title VII of the Civil Rights Act of 1964.

(2) The Contract Compliance Officer or appropriate Deputy or Assistant shall review the available information relative to the prospective prime contractor's equal opportunity compliance status and notify the contracting officer or approving officer of any deficiencies found to exist. A copy of such report shall be forwarded to the Director.

(3) Contracting officers or approving officers shall: (i) Notify the bidder, offeror, or applicant of any deficiencies found to exist by the Contract Compliance Officer (or appropriate Deputy or Assistant), and (ii) direct any bidder, offeror, or applicant so notified to negotiate with the Contract Compliance Officer (or appropriate Deputy or Assistant), and to take such actions as he may require.

(4) The award of any such contract shall be conditioned upon the Contract Compliance Officer's (or appropriate Deputy's or Assistant's) notification to the contracting officer or approving officer that the bidder, offeror, or applicant has taken action or has agreed to take action satisfactory to the Contract Compliance Officer (or appropriate Deputy or Assistant), or the head of the agency as provided in this Subpart 1-12.8. Any such agree

ment to take action shall be stated in the contract, if the Contract Compliance Officer (or appropriate Deputy or Assistant) so requires.

(e) Evaluations. The Director may, from time to time, evaluate the programs, procedures, and policies of agencies in order to assure their compliance with the Order and this Subpart 1-12.8 and the compliance of prime contractors and subcontractors with the Equal Opportunity clause.

§ 1-12.805-2 Educational responsibility.

(a) Contracting officers and other personnel concerned with procurement shall be apprised of their responsibilities for obtaining compliance with the Equal Opportunity clause.

(b) The agency shall publicize the equal opportunity policy to prospective bidders and contractors, and shall make available to contractors information concerning their responsibilities under the clause.

§ 1-12.805-3 Notices to be posted.

(a) Requirement. Unless alternative notices are prescribed by the Director, or by the agency with the approval of the Director, prime contractors and subcontractors shall post the notice entitled "Equal Employment Opportunity Is The Law," as provided by the notice posting requirements of the Equal Opportunity clause.

(b) Acquisition of notices. The notice "Equal Employment Opportunity Is The Law" is available in all GSA supply depots. Copies of the notice may be obtained from GSA through the contracting or administering agency. The stock numbers for the notice are as follows:

§ 1-12.805-4 Reports and other required information.1

(a) Requirements for prime contractors and subcontractors. (1) Each agency shall require each prime contractor and each prime contractor and subcontractor shall cause its subcontractors to file annually, on or before March 31, complete and accurate reports on Standard Form 100 (EEO-1) promulgated jointly by the Office of Federal Contract Compliance, the Equal Employment Opportunity Commission, and Plans for Progress, or on such form as may hereafter be promulgated in its place, if such prime contractor or subcontractor (i) is not exempt from the provisions of this Subpart 1-12.8 in accordance with § 112.804; (ii) has 50 or more employees; (iii) is a prime contractor or first-tier subcontractor; and (iv) has a contract, subcontract, or purchase order amounting to $50,000, or more, or serves as a depositary of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes: Provided, That any subcontractor below the first tier which performs construction work at the site of construction shall be required to file such a report if it meets the requirements in subdivisions (i), (ii), and (iv) of this paragraph (a)(1).

(2) Each person required by paragraph (a)(1) of this section to submit reports shall file such a report with the contracting or administering agency within 30 days after the award to him of a contract or subcontract, unless such person has submitted such a report within 12 months preceding the date of the award. Subsequent reports shall be submitted annually in accordance with subparagraph (1) of this paragraph, or at such other intervals as the agency or the Director may require. The agency, with the approval of the Director, may extend the time for filing any report.

(3) The Director, the agency, or the applicant, on their own motions, may require a prime contractor to keep employment or other records and to fur

'See Temporary Regulation 19 published at 35 FR 14747, Sept. 22, 1970, for temporary changes to § 1-12.805-4.

nish, in the form requested, within reasonable limits, such information as the Director, agency, or the applicant deems necessary for the administration of the Order.

(4) The 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 a ground for the imposition by the agency, the Director, an applicant, prime contractor or subcontractor, of any sanctions authorized by the Order and the regulations in this subpart. Any such failure shall be reported in writing to the Director by the agency as soon as practicable after it occurs.

(b) Requirements for bidders or prospective contractors. (1) Each agency shall require each bidder or prospective prime contractor and proposed subcontractor, where appropriate, to state in the bid or at the outset of negotiations for the contract whether it has participated in any previous contract or subcontract subject to the Equal Opportunity clause; and, if so, whether it has filed with the Joint Reporting Committee, the Director, an agency, or the former President's Committee on Equal Employment Opportunity, all reports due under the applicable filing requirements. The statement shall be in the form of a representation by the bidder or offeror substantially as follows:

The bidder (or offeror) represents that he [ ] has, [ ] has not, participated in a previous contract or subcontract subject to the Equal Opportunity clause herein, or the clause originally contained in section 301 of Executive Order No. 10925, or the clause contained in section 201 of Executive Order No. 11114; that he [ ] has, [ ] has not, filed all required compliance reports; and that representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained prior to subcontract awards. (The above representation need not be submitted in connection with contracts or subcontracts which are exempt from the clause.) Where a bidder or offeror fails to execute the representation, the omission shall be considered a minor informality and the bidder or offeror shall be

permitted to satisfy the requirement prior to award.

(2) In any case in which a bidder or prospective prime contractor or proposed subcontractor, which participated in a previous contract or subcontract subject to Executive Orders No. 10925, 11114, or 11246, has not filed a report due under the applicable filing requirements, no contract or subcontract shall be awarded, unless such contractor submits a report covering the delinquent period or such other period specified by the agency or the Director.

(3) A bidder or prospective prime contractor or proposed subcontractor shall be required to submit such information as the agency or the Director 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 award, or after the award, or both, to furnish such other information as the agency, the applicant, or the Director requests.

(c) Use of reports. Reports filed pursuant to this § 1-12.805-4 shall be used only in connection with the administration of the Order, the Civil Rights Act of 1964, or in furtherance of the purposes of the Order and said Act.

(d) Acquisition of report forms. Standard Form 100 is available in all GSA supply depots. Copies of the form may be obtained from GSA through the contracting or administering agency. The stock number for the form is as follows:

contractor or subcontractor maintains nondiscriminatory hiring and employment practices and is taking affirmative action to ensure that applicants are employed and that employees are placed, trained, upgraded, promoted, and otherwise treated during employment without regard to race, creed, color, or national origin. It shall consist of a comprehensive analysis and evaluation of each aspect of the aforementioned practices, policies, and conditions resulting therefrom. Where necessary, recommendations for appropriate sanctions shall be made.

(b) Where deficiencies are found to exist, reasonable efforts shall be made to secure compliance through conciliation and persuasion. Before the contractor can be found to be in compliance with the Order, he must make a specific commitment, in writing, to correct any such deficiencies. The commitment must include the precise action to be taken and dates for completion. The time period allotted shall be no longer than the minimum period necessary to effect such changes. Upon approval of such commitment by the Contract Compliance Officer, appropriate Deputy or Assistant, or the agency head, the contractor may be considered in compliance, on condition that the commitments are faithfully kept. The contractor shall be notified that making such commitments does not preclude future determinations of noncompliance based on a finding that the commitments are not sufficient to achieve compliance.

(c) The compliance agency shall have the primary responsibility for the conduct of compliance reviews. Agencies shall institute programs for the regular conduct of compliance reviews in accordance with the Director's guidelines, and shall also conduct compliance reviews in accordance with any special requests or instructions of the Director. Compliance reviews may also be conducted by the Director. Compliance reviews should be conducted by qualified specialists regularly involved in equal opportunity programs.

2See Temporary Regulation 19 published at 35 FR 14747, Sept. 22, 1970, for temporary changes to § 1-12.805-5.