40346 parties do not stand in the relationship of an employer and an employee): (1) For the furnishing of supplies or services or for the use of real or personal property, including lease arrangements, which, in whole or in part, is necessary to the performance of any one or more contracts; or (2) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed. (z) The term "subcontractor" means any person holding a subcontract and, for the purposes of enforcement of the Order and the regulations in this chapter, any person who has held a subcontract subject to the Order. The term "Firsttier subcontractor" refers to a subcontractor holding a subcontract with a prime contractor. (aa) The term "United States" as used herein shall include the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Panama Canal Zone, and the possessions of the United States. § 60-1.4 Equal opportunity clause. (a) Government contracts. Except as otherwise provided, each contracting agency shall include the following equal opportunity clause contained in section 202 of the Order in each of its Government contracts (and modifications thereof if not included in the original contract): 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 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 nondiscrimination 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 by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall PROPOSED RULES 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 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 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. (6) In the event of the contractor's noncompliance with the nondiscrimination clause of this contract or with any of such 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 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor or as otherwise provided by law. (7) The contractor will include the provisions of paragraphs (1) through (7) 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 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 subcontractor 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. (b) Federally assisted construction contracts. (1) Except as otherwise provided, each administering agency shall require the inclusion of the following language 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 clause: The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the 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 Fed eral Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insuarnce, or guarantee, the following equal opportunity clause: 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 to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination 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 it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives 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 11246, as amended, 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 11246, as amended, and by rules, regu lations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records and accounts by the administering or compliance 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 nondiscrimination clauses 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 accords with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) 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 11246 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 re quest the United States to enter into such litigation to protect the interests of the United States. The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a state or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. 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 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. The applicant further agrees that it with refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, as amended, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Order and will carry out such sanctions and penalties for violation of the equal opportunity 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 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 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 the failure or refund 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. (c) Subcontracts. Each nonexempt prime contractor or subcontractor shall include the equal opportunity clause in each of its nonexempt subcontracts. (d) Incorporation by reference. The equal opportunity clause may be incorporated by reference in all Government contracts and subcontracts, including Government bills of lading, transportation requests, contracts for deposit of Government funds, and contracts for issuing and paying U.S. savings bonds and notes. (e) Incorporation by operation of the Order. 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 and whether or not the contract between the agency and the contractor is written. PROPOSED RULES § 60-1.5 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. No agency, contractor, or subcontractor shall procure supplies or services in less than usual quantities to avoid applicability of the equal opportunity clause: Provided, That where a contractor has contracts or subcontracts with the Government in any 12-month period which have an aggregate total value (or can reasonably be expected to have an aggregate total value) of $50,000 or more, the $10,000 exemption does not apply, and the contracts are subject to the Order and the regulations issued pursuant thereto regardles of whether any single contract exceeds $10,000 in value. (2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite quantities (including, but not limited to, open end contracts, utility 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. 40317 firmative action program prescribed by § 60-1.6 and Part 60-2 of this chapter. (5) Contracts with certain educational institutions. It shall not be a vio lation of the equal opportunity clause for a school, college, university, or other educational institution or institutions of learning to hire and employ employees of a particular religion if such school, college, university, or educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. The primary thrust of this provision is directed at religiously oriented church-related colleges and universities and should be so interpreted. (6) Work on or near Indian reservations. It shall not be a violation of the equal opportunity clause for a construction or nonconstruction contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation. The use of the word "near" would include all that area where sonably be expected to commute to and a person seeking employment could rea from in the course of a work day. Con tractors or subcontractors extending such a preference shall not, however, discriminate among Indians on the basis of religion, sex, or tribal affiliation, and the use of such a preference shall not excuse a contractor from complying with the other requirements contained in this chapter. (b) Specific contracts and establishments (1) Specific contracts. The Director may exempt any agency or any person from requiring the inclusion of all or any part of the equal opportunity clause, and or any or all requirements contained in the regulations of this chapter, in any specific contract or subcontract when he/she 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/she finds it impracticable to act upon each request individually or where group exemptions will contribute to convenience in the administration of the Order. (2) Establishments 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 establishments which he/she finds to be in all respects separate and distinct from activities of the prime contractor or subcontractor related to the performance of the contract or subcontract: Provided, That he, she also finds that such an exemption will not interfere with or impede the effectuation of the Order. (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 appllcable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. In addition, any agency, instrumentality or subdivision of such government, except for educational institutions medical and health establishments, is exempt from the requirements of filing the annual compliance report provided for by § 601.9(a) (1) and maintaining a written af (1) Adaptation of language. Such necessary changes in language may be made in the equal opportunity clause and the regulations in this chapter as shall be appropriate to identify properly the parties and their undertakings. (c) National security. Any requirement set forth in the regulations in this chapter shall not apply to any contract or subcontract whenever the head of an agency determines that such contract or subcontract is essential to the national 40348 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 will notify the Director in writing within 30 days. (d) Withdrawal of exemption. When any contract or subcontract is of a class exempted under this section, the Director may withdraw the exemption for a specific contract or subcontract or group of contracts or subcontracts when in his/ her 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 is 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 the bids. PROPOSED RULES tive action compliance programs at least (d) Previously approved programs. No government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same out first according such employer full hearfacility within the past twelve months withing and adjudication under the provisions of title 5, United States Code, section 554, and the following pertinent sections: Provided, That if such employer has deviated substantially from such previously agreed to affirmative action plan, this section shall not apply: Provided further, That for the pur § 60-1.6 Affirmative action compliance poses of this section an affirmative action program requirements. (a) Who is covered. Each nonconstruction contractor and subcontractor who (1) has 100 or more employees and (2) has a Government contract or subcontract of $100,000 or more, or has Government bills of lading which, in any 12-month period, total or can reasonably be expected to total $100,000 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 saving notes shall develop a written affirmative action compliance program consistent with Part 60-2 of this chapter, for each of its establishments with 100 or more employees. If one or more of a contractor's establishments has fewer than 100 employees, but the contractor's aggregate workforce consists of 100 or more employees, the contractor shall either (i) maintain a nationwide affirmative action compliance program with national or local goals as appropriate covering those establishments having less than 100 employees and maintain a copy of the program at each establishment or (ii) maintain separate affirmative action compliance programs for each such establishment. If more than one of a contractor's establishments is subject to the written affirmative action compliance program requirement, such contractor may enter into an agreement with its compliance agency to develop and use a nationwide affirmative action compliance program format for developing its separate affirmative action compliance programs. (b) Maintenance of programs. Within 120 days of the commencement of a contract or subcontract which subjects the contractor o. subcontractor to the affirmative action compliance program requirement of § 60-1.6(a), such contractor or subcontractor shall develop a written affirmative action compliance program for each of its establishments, in accordance with § 60-1.6(a) and part 60-2 of this chapter. (c) Revision of programs. Each contractor and subcontractor shall review and evaluate progress under its affirma plan shall be deemed to have been accepted (e) Lack of an acceptable program. resolution of the administrative or judicial proceeding or of the compliance review or conciliation. (See § 60-1.22.) § 60-1.7 Certification of compliance with Executive Order 11246, as amended. Each contracting agency shall include the following certification in each of its applicable solicitation and contractual documents. Covered contractors and subcontractors shall also include this certification in applicable subcontracts. Certification. Each bidder/offerer, contractor or subcontractor (hereinafter the contractor) hereby certifies that it will fully comply with Executive Order 11246, as amended by Executive Order 11375, and the rules and regulations issued thereunder. which are hereby incorporated by reference as appropriate. The contractor commits itself to such compliance by submitting a properly signed bid or offer or by signing or otherwise accepting a contract or subcontract. § 60-1.8 Solicitations or advertisements for employees. In solicitations or advertisements for employees placed by or on behalf of a contractor or subcontractor, the requirements of paragraph (2) of the equal employment clause shall be satisfied if the contractor or subcontractor complies with any of the following: (a) States expressly in the solicitations or advertising that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin; (b) Uses display or other advertising, and the advertising includes an appropriate insignia prescribed by the Director. The use of the insignia is considered subject to the provisions of 18 U.S.C. 701; (c) Uses advertisements under a caption which clearly states that all employers in the group assure all qualified applicants equal consideration for employment without regard to race, color, religion, sex, or national origin; (d) Uses advertisements in which appears in clearly distinguishable type ployer." the phrase "an equal opportunity em (a) Requirements for prime contractors and subcontractors. (1) Each agency shall require each contractor and each contractor and subcontractor shall cause its subcontractors to file annually, on the date and at the place specified by the Joint Reporting Committee of the Office of Federal Contract Compliance Programs and the Equal Employment Opportunity Commission complete and accurate reports on the appropriate form promulgated jointly by both agencies if such contractor or subcontractor (1) is not exempt from the provisions of these regulations pursuant to § 60-1.5; (ii) has 100 or more employees; and (iii) has a contract, subcontract, or purchase order, amounting to $10,000 or more, or is otherwise subject to the Order and these regulations pursuant to the provision in § 60-1.5(a) (1) 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, or holds Gov PROPOSED RULES ernment bills of lading regardless of throughout their working life if they have amount. (2) Each contractor or subcontractor required by § 60–1.9(a)(1) to submit reports shall file, such a report within 30 days after the award to it of a contract or subcontract, unless such contractor or subcontractor person has submitted such a report within the 12 months preceding the date of the award. Subsequent reports shall be submitted annually pursuant to § 60-1.9 (a) (1), or at such other intervals as the agency or the Director may require. (b) Other required information. The Director may require a contractor to keep employment or other records and to furnish, in the form requested, within reasonable limits, such information as the Director deems necessary for the administration of the Order. (c) Failure to file. Failure to file timely, complete and accurate reports as required is a violation of the Order, equal opportunity clause and the regulations in this chapter and is ground to institute enforcement proceedings as authorized by 60-1.25 of this part including referral to the Department of Justice pursuant to section 209(a) (2) of the Order. Any such failure shall be reported in writing to the Director by the agency as soon as practicable after it occurs. § 60-1.10 Notices to be posted. (a) Prescribed poster. Unless alternative notices are prescribed by the Director or the agency with the approval of the Director, the notices which prime contractors and subcontractors are required to post by paragraphs (1) (3) of the equal opportunity clause will contain the following language: EQUAL EMPLOYMENT OPPORTUNITY IS THE LAW PRIVATE INDUSTRY, STATE AND LOCAL GOVERNMENT Title VII of the Civil Rights Act of 1964, because of race, color, religion, sex or national origin. Applicants to and employees of private employers, state/local governments and public/private educational institutions are protected. Also covered are employment agencles, labor unions and apprenticeship programs. Any person who believes he or she has been discriminated against should contact immediately, The U.S. Equal Employment Opportunity Commission (EEOC), 2401 E Street, N.W., Washington, D.C. 20506, or an EEOC District Office, listed in most telephone directories under U.S. Government. FEDERAL CONTRACT EMPLOYMENT Executive Order 11246, as amended, prohibits job discrimination because of race, color, religion, sex or national origin and requires affirmative action to ensure equality of opportunity in all aspects of employment. Section 503 of the Rehabilitation Act of 1973 prohibits job discrimination because of handicap and requires affirmative action to employ and advance in employment qualifiled handicapped workers. Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 prohibits job discrimination and requires affirmative action to employ and advance in employment (1) qualified Vietnam era veterans during the first four years after their discharge and (2) qualified disabled veterans a 30 percent or more disability. Applicants to and employees of any com- affirmative action obligations, including All complaints must be filed within 180 (b) Compliance with the equal opportunity clause. The requirements of paragraph (3) of the equal opportunity clause will be satisfied if the contractor or subcontractor posts copies of the notification prescribed by or pursuant to paragraph (a) of this section in conspicuous places available to employees, applicants for employment and representatives of each labor union or other organization representing the contractor's employees with which the contractor has a collective bargaining agreement or other contract or understanding. § 60-1.11 ment. 40349 of its conclusions and recommendations with respect to any such labor organization or recruiting and training agency which in its judgment has failed to cooperate with the agency contractors, subcontractors, or applicants in carrying out the purposes of the Order. The Director may notify the Equal Employment Opportunity Commission, the Department of Justice or any other appropriate Federal agency whenever the practices of any such labor organization or recruiting or training agency violates Title VII of the Civil Rights Act of 1964, as amended, or other provisions of Federal law, or interferes with the performance by any contractor or subcontractor with obligations imposed by the Order, equal opportunity clause, or the regulations in this chapter. Contractors shall not discriminate on the basis of race, color, religion, sex or national origin when hiring or making employee assignments for work to be performed in the United States or abroad. Contractors are exempted from this obligation only when hiring persons outside the United States for work to be performed outside the United State (see § 60-1.5(a) (4)). Therefore, a contractor hiring workers in the United States for either Federal or nonfederally connected work may be in violation of Executive Order 11246, as amended, by refusing to Access to records of employ employ or assign any person because of Each contractor and subcontractor ments. Collective bargaining agree (a) Whenever compliance with the equal opportunity clause may necessitate a revision of a collective bargaining agreement, the contractor or subcontractor shall attempt to negotiate such revisions with the labor union or unions which are parties to such an agreement. If such negotiations prove unsuccessful, the labor union shall be invited to present their views to the compliance agency. (b) The Department of Labor shall use its best efforts, directly or in conjunction with other Federal agencies state and local agencies, contractors, subcontractors, applicants, state and local officials, public and private agencies, and all other available instrumentalities, to cause any labor union, recruiting and training agency or other representative of workers who are or may be engaged in work under contracts and subcontracts to cooperate with, and to comply in the implementation of, the purposes of the order. (c) The Department of Labor may notify any Federal, state, or local agency race, color, religion, sex, or national origin regardless of the policies of the country where the work is to be performed or for whom the work will be unable to acquire a visa of entry for any employee or potential employee to a country in which or with which it is doing business, and which refusal it believes is due to the race, color, religion, sex or national origin of the employee or potential employee, the contractor must immediately notify the Department of State and the Director of such refusal. Subpart B-General Enforcement § 60-1.20 Duties of agencies. (a) General responsibility. The primary responsibility of compliance agencies is to obtain compliance with the equal opportunity clause, the Order, and regulations in this chapter. Each compliance agency shall cooperate with the Director and shall furnish him/her such information and assistance as he/she may require in the performance of his/ her functions under the Order. Such information shall include compliance review reports, schedules of compliance reviews and any other information or assistance relevant to the disposition of a particular matter or the general administration of the Order. (b) Compliance agency programs. Each agency shall submit for the prior approval of the Director his/her program and the procedures he/she proposes to promulgate to carry out the agency's responsibilities for obtaining compliance with the equal opportunity clause, the Order and regulations in this chapter. 40350 Modifications to such programs and procedures must be approved by the Director. Agency regulations, directives and orders may be enforced upon approval of the Director or 60 days after submission if not disapproved by the Director: Provided, That the Director may at any time specifically disapprove agency regulations, directives and orders and the enforcement thereof. Each agency shall designate a Contract Compliance Officer who, unless otherwise approved by the Director, shall be apppointed from among the agency's executive personnel to whom the Executive Schedule applies. Such officer shall be subject to the immediate supervision of the head of the agency. (c) Evaluations. The Director shall from time to time evaluate the programs, procedures, and policies of agencies in order to assure their compliance with the Order and the regulations in this chapter and to assure compliance by contractors and subcontractors with the Order, the equal opportunity clause, and the regulations in this chapter. $ 60-1.21 Compliance reviews. (a) Purpose of compliance reviews. The purpose of a compliance review is to determine whether a contractor is meeting its equal employment obligations in accordance with the Order, equal opportunity clause and applicable rules, regulations and orders and, where violations are disclosed, to make every effort to achieve compliance through the processes of conciliation, mediation and persuasion. It shall consist of an examination of potential or apparent disparities and/or discrimination in the hiring and employment conditions of minorities and women, a determination of whether such disparities and/or discrimination, if any, derive from or tend to be perpetuated by the contractor's hiring and employment practices, and whether the contractor has developed an affirmative action compliance program which fully meets the requirements of part 60-2 of this chapter. Compliance reviews shall be conducted in accordance with the procedures contained in Part 60-8 of this chapter. (b) Responsibility of agencies. Agencles shall have primary responsibility for conducting compliance reviews. Agencies shall institute programs for the regular conduct of compliance reviews in accordance with guidelines established by the Director, or any special instructions of the Director and shall also conduct compliance reviews on the special request of the Director. Compliance reviews may also be conducted by OFCCP, in which case the compliance agency shall participate to the extent required by the Director. Compliance reviews should be conducted by qualified specialists regularly involved in equal opportunity pro grams. § 60-1.22 Preaward compliance reviews of non-construction contractors and subcontractors. (a) Compliance reviews. (1) Each agency shall include in each solicitation for bids or state at the outset of negotiations for each negotiated contract, that PROPOSED RULES if the non-construction contract, when let, is $10 million or more, the prospective non-construction contractor and known first-tier non-construction subcontractors with subcontracts of $10 million or more will be subject to a compliance review before the award of the contractor. No such contract shall be awarded unless a compliance review of the prospective contractor and known first-tier $10 million subcontractors has been conducted by the compliance agency within 24 months prior to the award. (2) The awarding agency will notify the compliance agency at least 90 days prior to the proposed date of award and request appropriate action and findings in accordance with this section. Compliance agencies will provide awarding agencies with written reports 10 days prior to proposed date of award. In order to qualify for the award of a contract, a contractor must be found to have no violations of the Order, equal opportunity clause, and the regulations in this chapter: Provided further, That where a compliance review discloses a compliance deficiency, prior to informing the contracting officer that the contractor is in violation, compliance agency shall make every effort through the procedures contained in §§ 60-8.6 through 60-8.8 of this chapter to achieve compliance through conference, mediation, conciliation and persuasion, so that the contractor is able to meet its equal employment opportunity obligations in accordance with the Order, equal opportunity clause and regulations. If, in the judgment of the compliance agency, a contractor, demonstrates good faith efforts to comply with the Order, equal opportunity clause, and the regulations in this chapter, the compliance agency shall give a preaward clearance notwithstanding any other provision in this § 60-1.22. (b) Failure to complete compliance review. If the compliance agency, after making every good faith effort, is unable to complete the compliance review or conciliation prior to the award date of the contract, pre-award clearance may be given and the compliance review or conciliation completed at the earliest possible date: Provided, That upon the request of the Director, agencies shall not enter into contracts or subcontracts with any bidder, prospective contractor, or proposed subcontractor named by the Director until a preaward compliance review has been conducted and the Director or designated agency head or his/her designee has approved a determination that the bidder, prospective contractor or proposed subcontractor will be able to comply with the Order, equal opportunity clause, or the regulations in this chapter. § 60-1.23 Complaint investigation. tions, OFCCP or the compliance agency In conducting complaint investigashall, as a minimum, conduct a thorough evaluation of the allegations of the complaint and shall be responsible for developing a complete case record. The agency shall follow such other guidance in investigating the complaints as the (a) No violation found. If the compliance review or complaint investigation shows no violation of the Order, the equal opportunity clause, or the regulations in this chapter, the compliance agency shall so inform the Director, the contractor and the complainant. The contractor and the complainant should be advised that the Director may review the findings of the compliance agency, and may require further investigation by the compliance agency or may undertake such investigation as he/she deems appropriate. (b) Violation found. If any compliance review or complaint investigation indicates a violation of the Order, the equal opportunity clause, or the regulations in this chapter, the compliance agency or OFCCP, depending upon which agency conducted the investigation or compliance review, shall proceed in accordance with the procedures set forth in Part 60-8 of this chapter: Provided, That if a contractor refuses to submit an affirmative action compliance program, to allow an onsite review or to supply records or other requested information, enforcement procedures may be commenced pursuant to § 60-1.25 without proceeding through the procedures set out in Part 60-8 of this chapter: Provided further, That if the Director determines that judicial enforcement of the Order is appropriate, he/she may refer the matter to the Department of Justice for consideration pursuant to § 60-1.25 without proceeding through the procedures set out in Part 60-8 of this chapter, or he/she may refer the matter to the Department of Justice at any stage in those procedures. (c) Written conciliation agreements. Before the contractor can be found to be in compliance with the Order, it must make a specific commitment in a written conciliation agreement in accordance with the requirements and procedures set forth in § 60-8.8 of this chapter to correct any such deficiencies. Relief for members of an affected class who by virtue of past discrimination continue to suffer the present effects of that discrimination shall be provided in the conciliation agreement. In developing an affirmative action compliance program under 60-1.6 and Part 60-2 of this chapter, a contractor shall remedy in discrimination. all respects the current effects of past (d) Conciliation with contractors not subject to the written affirmative action compliance program requirement. Only contractors and subcontractors covered by 60-1.6 and Part 60-2 of this chapter are required to develop and implement |