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Interim Internal Purchasing Guidelines > 9 Labor Guidelines > 9.7 Equal Employment Opportunity
9.7.1 General
9.7.1.a Executive Order (EO) 11246 prohibits any discrimination in employment by
government suppliers and subcontractors based on race, color, religion, sex,
or national origin. The Executive Order sets forth a clause for inclusion in all
nonexempt government contracts and subcontracts (Clause 9-7, Equal
Opportunity).
9.7.1.b The Secretary of Labor is responsible for issuing regulations implementing
EO 11246. These regulations are in 41 CFR 60. The Secretary has delegated
to the Director, Office of Federal Contract Compliance Programs (OFCCP),
the authority and responsibility to carry out the program.
9.7.1.c No contract (or contract modification involving new procurement) may be
entered into, and no subcontract approved, with a supplier or subcontractor
found ineligible by the Director, OFCCP, for reasons of noncompliance with
EO 11246.
9.7.1.d Contracting officers and suppliers may not contract for supplies and services
in a way designed to avoid the requirements of EO 11246.
9.7.1.e Supplier disputes related to compliance with EO 11246 must be handled
according to the regulations of the Secretary of Labor (see 41 CFR 60-1.1).
9.7.2.a Transactions of $10,000 or Less
1. Contracts and subcontracts of $10,000 or less are exempt from the
requirements of EO 11246 and Clause 9-7, unless the aggregate
amount of all contracts or subcontracts awarded to the supplier or
subcontractor in any 12-month period will exceed $10,000. (However,
government bills of lading, contracts with depositories of Postal Service
funds, and contracts with financial institutions that are issuing and
paying agents for U.S. savings bonds and savings notes are not
exempt regardless of amount.)
2. Indefinite delivery contracts and ordering agreements are exempt only
when the amount to be ordered in any year under the contract will not
exceed $10,000. The contracting officer must determine this at the time
of award for the first year, and annually for each succeeding year.
Whenever a single order exceeds $10,000, Clause 9-7 applies. Once
Clause 9-7 applies, it continues in effect for the duration of the contract
or ordering agreement, regardless of the amounts ordered or expected
to be ordered.
9.7.2.b Contracts With State or Local Governments. If a contract is with a state or
local government, the agencies, instrumentalities, or subdivision that are not
involved in the contract work do not fall under the requirements of EO 11246.
9.7.2.c Contracts With Certain Educational Institutions. It is not a violation of EO
11246 for an educational institution to employ members of a particular
religion if the institution is owned, supported, controlled, or managed (in
whole or substantial part) by a religious group, or if the curriculum propagates
a particular religion.
9.7.2.d Work On or Near Indian Reservations. It is not a violation of EO 11246 for a
supplier to announce publicly a preference for employment of American
Indians living on or near an Indian reservation. "Near" includes the area
within which a person could commute daily. Suppliers extending such a
preference must not, however, discriminate among Indians on the basis of
religion, sex, or tribe. Using such a preference does not exclude a supplier
from complying with the Executive Order.
9.7.2.e Contracts with a Religious Corporation, Association, Educational Institution,
or Society. If a contract is with a religious corporation, association,
educational institution, or society, it is not a violation of Section 202 of EO
11246 to employ individuals of a certain religion to perform work connected
with the carrying-on of such an entity in its activities.
9.7.2.f Contracts Exempted by the Vice President, SM. The VP, SM, may determine
that a contract is essential and must be awarded without complying with one
or more of the requirements of EO 11246 in the interest of the Postal Service.
9.7.2.g Contracts Exempted by the Director, OFCC
1. The Director, OFCC, may exempt the Postal Service from having to
include one or more of the requirements of EO 11246 in any contract
when required by special circumstances in the national interest. The
Director may also exempt groups or categories of contracts when it is
not feasible to act upon each request individually or when group
exemptions are more convenient.
2. The Director, OFCC, may exempt any facilities of a supplier that are
totally separate and distinct from work related to the contract when the
exemption will not interfere with the effectiveness of EO 11246.
3. Contracting officers may request exemptions by submitting a
justification to the Director, OFCC, through the VP, SM.
4. The Director, OFCC, may withdraw an exemption for a specific contract
or group of contracts. Such withdrawal does not apply to contracts
awarded before withdrawal, or to competitive contracts when the
withdrawal is made less than 10 days before the date set for receipt of
proposals.
9.7.3 Preaward Compliance Reviews
9.7.3.a Before awarding any contract of $10 million or more (excluding construction
contracts and contracts exempt under 9.7.2), the contracting officer must
request the appropriate OFCCP regional office to conduct a compliance
review of the supplier's employment practices, and those of all known first-tier
subcontractors with subcontracts of $10 million or more, except when a
compliance review has been conducted within 12 months before award. This
requirement applies to a modification of an existing contract that increases its
value to $10 million or more, a contract modification adding new procurement
of $10 million or more, a letter contract, and an indefinite delivery contract or
ordering agreement under which orders are expected to aggregate $10
million or more.
9.7.3.b The contracting officer must include the following information in the preaward
request: name and address of prospective supplier or subcontractor;
telephone number; anticipated award date; information about previous
government contracts or subcontracts held; place of performance; and the
estimated dollar amount of the contract or subcontract. Whenever possible,
preaward review requests must be submitted at least 30 days before the
anticipated award date. Oral requests must be confirmed in writing.
9.7.3.c If the OFCCP has not made a final preaward determination within 30 days
from submission of the request, the contracting officer must withhold award of
the contract for an additional 15 days, or until clearance is received,
whichever occurs first. If the additional 15 days expire, and the OFCCP has
neither found the supplier to be in compliance nor made a final written
determination declaring the supplier ineligible for reasons of noncompliance,
the award may be made. The contracting officer must notify the OFCCP
regional office of the award.
9.7.3.d These procedures do not apply when the VP, SM, finds that the procedures
would delay an urgent or critical award or delay an award beyond the time
specified for acceptance of a proposal. In such cases, the contracting officer
must inform the Director, OFCCP, requesting a postaward review.
9.7.4 Affirmative Action Programs
9.7.4.a Nonconstruction. Except for contracts exempt under 9.7.2, each
nonconstruction supplier and each subcontractor with 50 or more employees
and (1) a contract or subcontract of $50,000 or more or (2) government bills
of lading that in any 12-month period, total, or can reasonably be expected to
total, $50,000 or more, is required to develop a written affirmative action
program for each of its establishments (see 41 CFR 60-1.40).
9.7.4.b Construction
1. Except for contracts exempt under 9.7.2, construction suppliers are
required to meet affirmative action requirements that apply to covered
geographical areas or projects, and the applicable requirements of
41 CFR 60-1 and 60-4.
2. A contracting officer contemplating a construction project over $10,000
within a geographic area not known to be covered by specific
affirmative action goals must request the most current information from
the OFCCP regional office before issuing the solicitation.
3. Contracting officers must give written notice to the OFCCP regional
office within 10 days after award of a contract subject to these
requirements.
9.7.5 Poster OFCCP-1420
The contracting officer must supply appropriate quantities of Poster
OFCCP-1420, Equal Opportunity Is the Law, to suppliers subject to EO
11246. The poster is available from the General Services Administration and
contains text in both English and Spanish. The stock number is
7690-00-926-8988.
9.7.6 Inquiries
9.7.6.a Inquiries from suppliers regarding status of compliance with EO 11246, or
rights to appeal any of the enforcement actions in 9.7.8, must be referred to
the OFCCP regional office.
9.7.6.b Inquiries from labor unions regarding revision of a collective compliance with
EO 11246 must be referred to the OFCCP regional office, and the
complainant must be notified of the referral in writing. The complainant's
name, the nature of the complaint, or the fact that the complaint was received
may be disclosed only to the OFCCP.
9.7.7 Complaints
Any complaint received by a contracting officer concerning compliance with
EO 11246 must be referred to the OFCCP regional office, and the
complainant must be notified of the referral in writing. The complainant's
name, the nature of the complaint, or the fact that the complaint was received
may be disclosed only to the OFCCP.
9.7.8 Enforcement
At the written direction of the Director, OFCCP, one or more of the following
actions, as well as administrative sanctions and penalties, may be exercised
against suppliers found to be in violation of EO 11246, the regulations of the
Secretary of Labor, or the applicable contract clauses:
9.7.8.a Publication of the names of the suppliers or their unions.
9.7.8.b Cancellation, termination, or suspension of the supplier's contracts or portion
thereof.
9.7.8.c Debarment from future contracts, or extensions or modifications of existing
contracts, until the supplier has established and carried out personnel and
employment policies in compliance with EO 11246 and the regulations of the
Secretary of Labor.
9.7.8.d Referral by the Director, OFCCP, of any matter arising under EO 11246 to the
Department of Justice or to the Equal Employment Opportunity Commission
(EEOC) for the institution of appropriate civil or criminal proceedings.
9.7.9 Solicitation Provisions
Paragraph d of Provision 4-3, Representations and Certifications, addresses
the certification for nonsegregated facilities and applies to all contracts except
those exempt from EO 11246 under 9.7.2. In addition, solicitations must
include the following provisions:
9.7.9.a Other Than Construction
1. Provision 9-1, Equal Opportunity Affirmative Action Program, which is
incorporated by reference in Provision 4-3, and must be checked-off by
contracting officers when proposals of $50,000 or more are anticipated
from offerors having 50 or more employees.
2. Provision 9-2, Preaward Equal Opportunity Compliance Review, which
is incorporated by reference in Provision 4-3, and must be checked-off
by contracting officers when the amount of the contract is expected to
be $10 million or more.
9.7.9.b Construction. Paragraph d of Provision 4-3 applies, as does Provision 9-3,
Notice of Requirement for Equal Opportunity Affirmative Action. This
provision is also included by reference in Provision 4-3, and must be
checked-off as appropriate.
9.7.10 Clauses
Contracts not exempt from EO 11246 under 9.7.2 must include the following
clauses:
9.7.10.a Clause 9-7, Equal Opportunity, which is incorporated by reference in Clause
4-2 and must be checked-off by the contracting officer.
9.7.10.b Clause 9-8, Affirmative Action Compliance Requirements for Construction, in
contracts for construction.
9.7.10.c Clause 9-9, Equal Opportunity Preaward Compliance of Subcontracts, in
contracts over $10 million.
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