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Supplying Principles and Practices > USPS Supplying Practices General Practices > Equal Employment Opportunity
Equal Employment Opportunity
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 (Clause 9-7:
Equal Opportunity) for inclusion in all nonexempt government contracts and
subcontracts. Regulations that implement EO 11246 are the responsibility of
the Secretary of Labor and can be found in Title 41 Code of Federal
Regulations (CFR) 60. The Secretary of Labor delegates the authority to
carry out the program to the Director, Office of Federal Contract Compliance
Programs (OFCCP). The Director, OFCCP, 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, and
may also exempt groups or categories of contracts when it is not feasible to
act upon each "case" individually (or when group exemptions are more
convenient).
The Postal Service stipulates that no contract (or contract modification
involving a new purchase) 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. The Contracting
Officer and members of the supplier community are responsible for
compliance and may not award a contract for supplies or services in a way
designed to avoid the requirements of EO 11246. The Contracting Officers
may request exemptions by submitting a justification to the Director, OFCCP.
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
(GSA) and contains text in both English and Spanish. (The stock number is
7690-00-926-8988.)
Except for exempt contracts, each nonconstruction Supplier and each
(nonconstruction) 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. More information can be found in Title 41 Code
of Federal Regulations (CFR) 60-1.40.
Except for exempt contracts, construction Suppliers are required to meet
affirmative action requirements that apply to covered geographical areas or
projects, and the applicable requirements of Title 41 CFR 60-1 and 60-4. A
Contracting Officer contemplating a construction purchase 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 request for proposals (RFP).
Contracting Officers must give written notice to the OFCCP regional office
within 10 days after award of a contract subject to these requirements.
Before awarding any contract of $10 million or more (excluding construction
contracts and other contracts that may be exempt), 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 prior to award.
Whenever possible, preaward review requests must be submitted at least 30
days before the anticipated award date. Oral requests must be confirmed in
writing. This requirement applies to a modification of an existing contract that
increases its value to $10 million or more, a contract modification constituting
a new purchase of $10 million or more, a letter contract, and an indefinite
delivery contract or ordering agreement (OA) under which orders are
expected to aggregate $10 million or more.
The Contracting Officer must include the following information in the
preaward request:
• Name and address of prospective supplier or subcontractor
• Telephone number
• Anticipated contract award date
• Information about previous government contracts or subcontracts
held by supplier(s)
• Place of performance
• Estimated dollar amount of the contract or subcontract
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.
These procedures do not apply when the Vice President, Supply
Management (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.
A request for proposals (RFP) associated with equal employment opportunity
will include paragraph d of Provision 4-3: Representations and Certifications,
which addresses the certification for nonsegregated facilities and applies to
all contracts except those exempt from EO 11246. In addition, RFPs must
include the following provisions:
• (For all nonconstruction contracts) 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
• (For all nonconstruction contracts) 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
• (For all construction contracts) in addition to paragraph d of
Provision 4-3, Provision 9-3: Notice of Requirement for Equal
Opportunity Affirmative Action (which is included by reference in
Provision 4-3), and must be checked-off as appropriate
Contracts not exempt from EO 11246 must include the following clauses:
• Clause 9-7: Equal Opportunity (which is incorporated by
reference in Clause 4-2: Contract Terms and Conditions
Required to Implement Policies, Statutes, or Executive Orders)
and must be checked-off by the Contracting Officer
• Clause 9-8: Affirmative Action Compliance Requirements for
Construction, in contracts for construction
• Clause 9-9: Equal Opportunity Preaward Compliance of
Subcontracts, in contracts over $10 million
Contracts and subcontracts of $10,000 or less are exempt from the
requirements of EO 11246 and Clause 9-7: Equal Opportunity, unless the
aggregate amount of all contracts or subcontracts awarded to the Supplier or
Subcontractor in any 12 month period will exceed $10,000. It is essential to
note that 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.
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.
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.
Exceptions for 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.
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.
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.
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.
Any complaint received by the 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.
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:
• Publication of the names of the suppliers or their unions
• Cancellation, termination, or suspension of the supplier's
contracts or portion thereof
• 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
• 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
Provision 4-3: Representations and Certifications
Provision 9-1: Equal Opportunity Affirmative Action Program
Provision 9-2: Preaward Equal Opportunity Compliance Review
Provision 9-3: Notice of Requirement for Equal Opportunity Affirmative
Action
Clause 4-2: Contract Terms and Conditions Required to Implement Policies,
Statutes, or Executive Orders
Clause 9-7: Equal Opportunity
Clause 9-8: Affirmative Action Compliance Requirements for Construction
Clause 9-9: Equal Opportunity Preaward Compliance of Subcontracts
Title 41 Code of Federal Regulations (CFR)
Executive Order (EO) 11246
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