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 LABOR 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 Subpart 10-Service Contract Act of 1965 12.1000 Scope of Subpart. This Subpart sets forth policies and procedures for carrying out the provisions of the Service Contract Act of 1965 (Public Law 89-286, 79 Stat. 1034, 41 U.S.C.351); the provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.), as they pertain to service contracts; the implementing regulations prescribed in 29 CFR Parts 4 and 1516; and instructions issued by the Secretary of Labor. 12.1001 Statutory Requirements. The Service Contract Act of 1965, referred to in this Subpart as the "Act", embraces two general requirements with respect to service contracts entered into by Federal agencies: (i) regardless of the contract amount, no contractor or subcontractor holding a Federal service contract shall pay any of his employees engaged in such work less than the minimum wage specified in section 6(a) (1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.); and (ii) Federal service contracts in excess of $2,500 shall contain the provisions required by the Act with respect to such matters as minimum wages, including fringe benefits, to be paid the various classes of service employees engaged in the performance of the contract, safe and sanitary working conditions, and notification to employees of the compensation required under the Act. 12.1002 Applicability. 12.1002-1 General. Subject to statutory exemptions or administrative exemptions by the Secretary of Labor under section 4(b) of the Act: (i) the requirement set forth in 12.1001(i) applies to any contract with the Federal Government, the principal purpose of which is to furnish services through the use of service employees (as defined in 12.1002-3); and (ii) the requirement set forth in 12.1001(ii) applies to every contract (and any bid specification therefor) entered into by the Federal Government in excess of $2,500 whether negotiated or advertised, the principal purpose of which is to furnish services through the use of service employees (as defined in 12.1002-3). 12.1002-2 Geographical Coverage of the Act. (a) Inside the United States, the Act is applicable to all service contracts irrespective of amount. (b) Outside the United States, the Act is applicable to service contracts under $2,500. However, the regulations of the Secretary of Labor (see 29 CFR 4.6(m) and 4.7) have exempted such contracts from the provisions of the Act. (c) When used in a geographical sense, the term "United States" is defined in the Act to include any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnston Island, but shall not include any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country. 12.1002-3 Service Employee. (a) Definition of Service Employees. As defined in the Act, the term "service employee" means guards, watchmen, and any person engaged in a recognized trade or craft, or other skilled mechanical craft, or in unskilled, semi-skilled, or skilled manual labor occupation; and any other em NASA PROCUREMENT REGULATION |