cruitment 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 equal opportunity (federally assisted construction) 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 advising the said labor union or workers' representative 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 No. 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 No. 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 administering 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 equal opportunity (federally assisted construction) clause 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 accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as provided by law.

(7) The contractor will include this equal opportunity (federally assisted construction) clause in every subcontract or purchase order unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 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 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 request 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 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 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 Agency in the discharge of its primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to the Order 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 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 Agency may take any or all of 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 refusal 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 Government bills of lading, transportation requests, contracts for deposit of Government funds, contracts for issuing and paying U.S. savings bonds and notes, contracts and sub

contracts less than $50,000 and such other contracts as the Director may designate.

(e) Incorporation by operation of the Order and Agency regulations. By operation of the Order, and these regulations, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by either the Order, the rules, regulations and relevant orders of the Secretary of Labor or these regulations to include such a clause whether or not it is physically incorporated in such contracts. The clause is hereby made a part of every nonexempt contract where there is no written contract between the Agency and the contractor.

(f) Adaptation of language. Such necessary changes in language may be made in the equal opportunity clauses as shall be appropriate to identify the parties and their undertakings.

(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. The equal opportunity clause shall apply to all cases where the Agency, applicants, contractors, or subcontractors procure supplies or services in less than usual quantities to avoid applicability of the equal opportunity clause.

(2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite quantities (including, but not limited to, open-end 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. Not

withstanding 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.

(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 applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. In addition, State and local governments are exempt from the requirements of filing the annual compliance report provided for by § 8.11(a) and maintaining a written affirmative action compliance program prescribed in §§ 8.7 and 8.8.

(b) Specific contracts and facilities not connected with contracts. The equal opportunity clause will not be required to be included in any contract or subcontract exempted by the Director under the provisions of 41 CFR 60-1.5(b) (1) or (2) provided such exemption has not been withdrawn under the provisions of 41 CFR 60-1.5(d).

(c) National security. Any requirement set forth in the regulations in this part shall not apply to any contract or subcontract whenever the Administrator 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 Administrator will notify the Director in writing within 30 days.

§ 8.6 Pre-bid requirements and confer

ences.

(a) Nonconstruction contracts of $1 million or more. The following notice shall be included in the invitation for

bids, or request for proposals for each nonconstruction contract (advertised or negotiated) which may result in an award of $1 million or more:

PREAWARD EQUAL OPPORTUNITY COMPLIANCE
REVIEWS

Where the bid (or offer) of the apparent low responsible bidder (or offeror) is in the amount of $1 million or more, the bidder (or offeror) and his known first-tier subcontractors which will be awarded subcontracts of $1 million or more will be subject to full, preaward equal opportunity compliance reviews before the award of the contract for the purpose of determining whether the bidder (or offeror) and his subcontractors are able to comply with the provisions of the equal opportunity clause.

Preaward compliance reviews may be conducted for any nonexempt nonconstruction contract or subcontract if, on the basis of complaint, past performance, Investigation, or otherwise, the Agency believes that a prospective contractor or subcontractor is unable or unwilling to comply with the requirements of the equal employment opportunity clause.

(b) Construction contracts. (1) In certain designated metropolitan areas, the Office of Federal Contract Compliance has established or approved establishment of, special compilance programs. In each such area special procedures have been made applicable for all direct federal or federally assisted construction projects. Such rules, regulations, guidelines, and procedures shall be governing in each instance and take precedence over general EPA contract compliance regulations set forth herein for direct and EPA financially assisted construction projects.

(2) Except for the specially designated areas described in subparagraph (1) of this paragraph, the following notice shall be included in the invitation for bids or request for proposals for all EPA direct construction and EPA financially assisted construction contracts where projects costs reasonably may be expected to exceed $500,000:

PRE-CONSTRUCTION EQUAL OPPORTUNITY
COMPLIANCE CONFERENCE

As part of the procedure for determining the ability of contractors to comply with the equal opportunity clause, prospective bidders may be required to attend a meeting scheduled by the Environmental Protection Agency prior to opening of bids where they will be instructed in the equal employment opportunity requirements of the Agency.

§ 8.7 Affirmative action compliance pro

grams-nonconstruction contracts.

Order No. 4 (41 CFR Part 60-2), issued by the Secretary of Labor, sets forth requirements for the development of affirmative action compliance programs for nonconstruction contractors. § 8.8 Affirmative action compliance programs--construction contracts.

(a) In each area designated by the Office of Federal Contract Compliance for special compliance attention under Federal, State, or locally established compliance plans, the rules, regulations, and relevant orders of the Office of Federal Contract Compliance for the area shall be governing with respect to development, maintenance, and submission of affirmative action programs by bidders and contractors. Copies of such rules, regulations, and relevant orders promulgated by the Office of Federal Contract Compliance shall be furnished contractors by EPA in the instance of direct EPA construction contracting and to EPA's financial assistance recipient for submission to contractors in the instance of an EPA financially assisted construction contract.

(b) Outside the areas referred to in paragraph (a) of this section, and unless otherwise exempted by the Administrator, construction contracts for $500,000 or more, and subcontracts for $100,000 or more under such contracts, shall require that contractors and subcontractors awarded such contracts and subcontracts must engage in affirmative action directed at promoting and ensuring equal employment opportunity in the workforce under the contracts or subcontracts, such affirmative action to include, as appropriate, specific, result-oriented efforts such as:

(1) Notifying community organizations that the contractor has employment opportunities available and maintaining records of the organizations' response. Such organizations may include but shall not be limited to: (1) Local women's organizations. (ii) Minority employment agencies. (ii) Minority construction workers' and contractors' associations.

(iv) Local Human Rights Councils or organizations.

(v) Local Urban League chapter. (vi) Local high school and college job placement counselors.

(vii) Local minority churches.

(viii) Local Indian Tribal Councils and Indian centers.

(ix) Local Spanish-speaking organizations.

(x) Local National Association for the Advancement of Colored People (NAACP) chapters.

(x1) Local Organization of Industrial Centers.

(xii) Oriental Community centers.

(2) Maintaining a file of the names and addresses of each minority worker referred to the contractor and what action was taken with respect to each such referred worker, and if the worker was not employed, the reasons therefor. If such worker was not sent to the union hiring hall for referral or if such worker was not employed by the contractor, the contractor's file should document this and the reasons therefor.

(3) Prompt notification to the Environmental Protection Agency when the union or unions with whom the contractor has a collective bargaining agreement has not referred to the contractor a minority worker sent by the contractor or the contractor has other information that the union referral process has impeded him in his efforts to meet his goal.

(4) Participation by the contractor in training programs in the area, especially those funded by the Department of Labor.

(5) Dissemination of the contractor's EEO policy within his own organization by including it in any policy manual; by publicizing it in company newspapers, annual reports, etc.; by conducting staff, employees, and union representatives' meetings to explain and discuss the policy; by posting the policy; and by specific review of the policy with minority employees.

(6) Dissemination of the contractor's EEO policy externally and discussions of it with all recruitment sources; advertising in news media specifically including minority news media; and by notification and discussion of the policy with all subcontractors and suppliers.

(7) Making specific and constant personal (both oral and written) recruitment efforts directed at all minority organizations, schools with minority students, minority recruitment organizations and minority training organizations, within the contractor's recruitment area.

(8) Making specific efforts to encourage present minority employees to recruit their friends and relatives.

(9) Validating all employment specifications, selection requirements, tests, and the like.

(10) Making every effort to promote after school, summer, and vacation employment to minority youths.

(11) Developing on-the-job and participating and assisting in any association or employee-group training programs relevant to the contractor's employee needs consistent with its obligations under this Part.

(12) Continual inventorying and evaluating all minority personnel for promotion opportunities and encouraging minority employees to seek such opportunities.

(13) Making sure that seniority practices, job classification, etc., do not have discriminatory effect.

(14) Making certain that all facilities and company activities are nonsegregated.

(15) Continuously monitoring all personnel activities to ensure EEO policy implementation.

(16) Circularizing minority contractor associations and soliciting subcontract work from available minority contractors, and maintaining a file of such effort, including explanations, when qualifiled, interested contractors are not engaged.

(c) The goal of the affirmative action required herein is insurance of equal employment opportunity. It is recognized that achievement of this goal and appraisal of effort to achieve it pose special problems for construction contractors because of the temporary and shifting nature of the employer-employee relationship in the construction industry, varying labor market conditions, and varying local contracting practices. Still, there are parameters by which effort and achievement can be evaluated. Where a contractor employs no minorities in his entire workforce, a legitimate presumption arises that the contractor has taken no affirmative action to ensure equal employment opportunity as herein required. The burden of refuting this presumption rests with the contractor. Similarily, if the only minorities a contractor employs are in the unskilled trades of his workforce, a legitimate presumption arises that the contractor has taken no affirmative action to ensure equal employment opportunity in his skilled trade workforce. Again the burden of refuting the presumption rests with the contractor. On the other hand, if a contractor em

ploys minorities in every trade of his workforce and maintains such employment among the trades over the entire life of his contract, a legitimate presumption arises that the contractor has taken affirmative action to achieve equal employment opportunity. The burden of refuting this presumption rests with the Agency.

(d) In connection with evaluating a contractor's affirmative action effort, it shall be no excuse that any union with which a contractor has a collective bargaining agreement providing for exclusive referral fails to refer minority employees. Discrimination in referral for employment, even if pursuant to provisions of a collective bargaining agreement, is prohibited by the National Labor Relations Act and Title VII of the Civil Rights Act of 1964. The fact that a contractor has delegated the responsibility for some of his employment practices to another organization or agency and that the delegatee organization or agency prevents the contractor from meeting his affirmative action EEO obligations pursuant to the Order does not vitiate the contractor's basic responsibilities under the Order.

(e) Where review of a contractor's workforce discloses an absence of minority employees among all trades, or a disproportionate representation of minorities in the workforce from what reasonably might be expected from the availability of such employees in the serving labor market area, the contractor will be called upon to show what affirmative good faith efforts he has made to ensure equal employment opportunity in his workforce. In this connection, good faith efforts shall be defined as: Contractor's efforts demonstrated by documentation showing his communications with minority community organizations having knowledge of the availability of minority workers or the ability to refer minorities for work. Such organizations shall include but not be limited to the organizations listed under § 8.8(b) (1). An additional ingredient of acceptable good faith efforts by a contractor is any effort made to obtain minority subcontractors for any portion of the work subcontracted.

(f) As evidence of his understanding of and agreement with the affirmative action requirements herein, each bidder on construction contracts where the bid is $500,000 or more shall file a signed certification with his bid acknowledging his understanding of the affirmative action

requirements herein and certifying his agreement to make a good faith effort to achieve and maintain equal employment opportunity in the workforce under his contract through affirmative actions as herein specified. The certification also shall contain an estimate prepared by the bidder identifying the trades expected to be used in construction of the contract being bid; an estimate of the total manhours of work to be utilized by each trade in the performance of the contract; and, if determinable, an estimate of the minority manhours of work to be utilized in each trade. The certification also shall contain an undertaking by the bidder that he will obtain from each of his subcontractors a subcontractor's certification required by these regulations. The completed certification must be signed by an official of the bidder capable of binding the company and be filed with the bid as part of the bid.

(g) Prior to award of any subcontract for $100,000 or more for work under a construction contract for $500,000 or more, regardless of tier, the prospective subcontractor must execute and submit to the prime contractor a certification acknowledging his understanding of the affirmative action requirements herein and certifying his agreement to make a good faith effort to achieve and maintain equal employment opportunity in the workforce under his subcontract through affirmative actions as herein specified. The certification also shall contain an estimate prepared by the bidder identifying the trades expected to be used in the work performed under the subcontract; an estimate of the total manhours of work to be utilized by each trade in the performance of the work; and, if determinable, an estimate of the minority manhours of work to be utilized in each trade. The certification also shall contain an undertaking by the subcontractor that he will obtain a certification as required herein from each of his subcontractors and submit it to the prime contractor prior to award of such subcontract. The completed and signed subcontractor's certification shall be made a part of the subcontract to which it applies. Any subcontract subject to these requirements which is executed without incorporation of a signed and completed subcontractor's certification shall be ineligible for Agency financial assistance. (h) Notwithstanding the express exclusion authorized herein, bidders on