$10,000 which are not exempt from the provisions of the Equal Opportunity clause will be required to provide for the forwarding of the following notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause.

NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

(a) A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause.

(b) Contractors receiving subcontract awards exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause will be required to provide for the forwarding of this notice to prospective subcontractors for supplies and construction contracts where the subcontracts exceed $10,000 and are not exempt from the provisions of the Equal Opportunity clause.

(d) Agencies shall include a requirement for a certification of nonsegregated facilities in their (1) invitations for bids, (2) requests for proposals, (3) modifications of contracts (in the absence of a certification), (4) contracts resulting from unsolicited proposals, (5) federally assisted construction contracts of applicants, and (6) agreements with applicants. Pursuant to this requirement, bidders, offerors, recipients of contract awards and contract modifications, applicants performing federally assisted construction contracts, federally assisted construction contractors, and their respective subcontractors, shall submit the certification prescribed by this paragraph (d) in connection with their bids, proposals,

contracts, contract modifications, and agreements where awards and agreements may result in contracts and subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause. Certifications shall be individually signed except where the certification is executed by reason of the signature on the bid or offer (see § 12.201(a)(29)). The certifications submitted by subcontractors shall be retained in the files of the prime contractor or subcontractor receiving the certification. Where a prime contractor or subcontractor does business

with a concern on a continuing basis, a single certification may be submitted periodically (quarterly, semiannually, or annually) rather than with each transaction.

(1) Certification to be submitted by (i) bidders, (ii) offerors, (iii) contractors, (iv) subcontractors, and (v) applicants who are themselves performing federally assisted construction contracts:

CERTIFICATION OF NONSEGREGATED FACILITIES

(Applicable to (1) contracts, (2) subcontracts, and (3) agreements with applicants who are themselves performing federally assisted construction contracts, exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause.)

By the submission of this bid, the bidder, offeror, applicant, or subcontractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. He certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The bidder, offeror, applicant, or subcontractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. He further agrees that (except where he has obtained identical certifications from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause; that he will retain such certifications in his files; and that he will forward the following notice to such proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods):

NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES

A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e., quarterly, semiannually, or annually).

NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.

(2) Certification to be submitted by federally assisted construction contractors of applicants and their subcontractors:

CERTIFICATION OF NONSEGREGATED FACILITIES

(Applicable to federally assisted construction contracts and related subcontracts exceeding $10,000 which are not exempt from the Equal Opportunity clause.)

The federally assisted construction contractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location, under his control, where segregated facilities are maintained. The federally assisted construction contractor agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. The federally assisted construction contractor agrees that (except where he has obtained identical certifications from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity

clause, and that he will retain such certifications in his files.

NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.

(e) The failure of a prime contractor or subcontractor to comply with the terms of his Certification of Nonsegregated Facilities or with the terms of the Equal Opportunity clause as construed by paragraph (a) of this section shall be a ground for termination or cancellation of contracts or subcontracts as provided in § 1-12.805-9.

[33 FR 10715, July 27, 1968, as amended at 40 FR 44140, Sept. 25, 1975]

§ 1-12.804 Exemptions.

§ 1-12.804-1 General.

Contracts and subcontracts are exempt from the requirements of the Equal Opportunity clause as provided in this section.

(a) Transactions of $10,000 or under. Contracts and subcontracts not exceeding $10,000, other than Government bills of lading, are exempt. 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.

(b) Contracts and subcontracts for indefinite quantities. Contracts and subcontracts for indefinite quantities (including, but not limited to, openend contracts, requirement-type contracts, Federal Supply Schedule contracts, calltype contracts, and purchase notice agreements) shall include the Equal Opportunity clause 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

80-131 0-81--4

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.

(c) 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.

(d) Contracts with State or local governments. An agency, subdivision, or other instrumentality of a State or local government is subject to the requirements of the Equal Opportunity clause contained in Federal contracts and subcontracts as follows:

(1) Where the instrumentality is not participating in work on or under a Federal contract or subcontract, it is exempt from the provisions of the clause.

(2) Where the instrumentality, except for educational institutions or medical facilities, is participating in work on or under a Federal contract or subcontract, it is subject to the requirements of the clause except that it is exempt from filing an annual compliance report as provided for in § 112.805-4 and maintaining a written affirmative action compliance program as prescribed by § 1-12.810.

(3) Educational institutions and medical facilities of such instrumentalities which are participating in work on or under a Federal contract or subcontract are subject to all the provisions of the Equal Opportunity clause.

(e) National security. Any requirement set forth in the regulations in this subpart shall not apply to any contract or subcontract whenever the head of the agency 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 head of the agency shall notify the Director in writing within 30 days.

(f) Sales contracts. Contracts providing for the sale of Government real and personal property are exempt from the requirements of the Equal Opportunity clause by reason of the definition of the term "Government contract" (see § 1-12.802(m)).

[33 FR 10715, July 27, 1968, as amended at 38 FR 28818, Oct. 17, 1973]

§ 1-12.804-2 Specific contracts.

The Director may exempt an agency or any person from requiring the inclusion of any or all of the Equal Opportunity clause in any specific contract, or subcontract, when he 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 finds it impracticable to act upon each request individually or where group exemptions will contribute to convenience in the administration of the Order.

§ 1-12.804-3 Facilities 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 facilities which he finds to be in all respects separate and distinct from the activities of the prime contractor, or subcontractor, related to the performance of the contract, or subcontract, provided that he also finds that such an exemption will not interfere with or impede the effectuation of the Order.

§ 1-12.804-4 Effect of exemption.

Notwithstanding the inclusion in any contract or subcontract of the Equal Opportunity clause, the contractor or subcontractor shall be exempt from compliance therewith if the contract or subcontract containing such a clause is exempt.

§ 1-12.804-5 Withdrawal of exemption.

When any contract or subcontract is of a class exempted under this § 112.804, the Director may withdraw the exemption for a specific contract, or subcontract, or group of contracts or subcontracts when in his judgment such action is necessary or appropriate

(a) General responsibility. Each agency shall be primarily responsible for obtaining compliance with the Equal Opportunity clause, the Order, the regulations of the Secretary of Labor, and orders issued pursuant thereto. Each agency shall cooperate with the Director and shall furnish him such information and assistance as he may require in the performance of his functions under the Order. Such information shall include compliance review reports, schedules of compliance reviews, and any other information relevant to the administration of the Order.

(b) Agency programs. The head of each agency shall, subject to the prior approval of the Director, establish a program and promulgate procedures to carry out the agency's responsibilities for obtaining compliance with the Order and regulations and orders issued pursuant thereto. Each agency head shall also designate a Contract Compliance Officer, who (unless otherwise approved by the Director) shall be appointed by the head of the agency from among the agency's executive personnel to whom the Executive Schedule applies, and such officer shall be subject to the immediate supervision of the head of the agency. All compliance reviews required pursuant to this Subpart 1-12.8 and such other compliance reviews as the Contract Compliance Officer determines to be appropriate shall be conducted by him or his designee. The head of the agency or the Contract Compliance Officer may also designate a

'See Temporary Regulation 19 published at 35 FR 14747, Sept. 22, 1970, for temporary changes to § 1-12.805-1.

Deputy Contract Compliance Officer and Assistant Compliance Officers to assist the Contract Compliance Officer in the performance of his duties. The names of the Contract Compliance Officers and the Deputy Contract Compliance Officers, their addresses, and telephone numbers, and any changes made in their designation shall be furnished to the Director.

(c) Agency regulations. Agency implementation and supplementation of and deviations from this subpart shall be submitted to the Director for review and approval prior to issuance and may be enforced upon approval of the Director, or 60 days after submission if not disapproved by the Director. Deviations from this subpart so submitted to the Director will be deemed to satisfy the requirements of § 1-1.009.

(d) Award of contracts. Sixty days after the effective date (July 1, 1968) of the rules, regulations, and relevant orders of the Secretary of Labor, each agency shall follow the procedures described in this paragraph (d) before the award of any nonexempt contract, unless agency regulations providing alternative procedures have been issued or are under review by the Director, in accordance with paragraph (c) of this § 1-12.805-1. Such alternative procedures may include monetary cutoffs and other limitations consistent with the agency resources and contracting processes.

(1) All contracting officers and officers approving applications for Federal financial assistance involving a construction contract shall notify the Contract Compliance Officer or appropriate Deputy or Assistant as soon as practicable of the impending award of each nonexempt contract, the name and address of the prime contractor, anticipated time of performance, name and address of each known subcontractor, whether the prime contractor and known subcontractors have previously held any Government contracts or federally assisted construction contracts subject to Executive Orders No. 10925, 11114, or 11246, and whether the prime contractor has previously filed compliance reports required by Executive Orders No. 10925, 11114, or 11246, or by regulations of the Equal

Employment Opportunity Commission issued pursuant to Title VII of the Civil Rights Act of 1964.

(2) The Contract Compliance Officer or appropriate Deputy or Assistant shall review the available information relative to the prospective prime contractor's equal opportunity compliance status and notify the contracting officer or approving officer of any deficiencies found to exist. A copy of such report shall be forwarded to the Director.

(3) Contracting officers or approving officers shall: (i) Notify the bidder, offeror, or applicant of any deficiencies found to exist by the Contract Compliance Officer (or appropriate Deputy or Assistant), and (ii) direct any bidder, offeror, or applicant so notified to negotiate with the Contract Compliance Officer (or appropriate Deputy or Assistant), and to take such actions as he may require.

(4) The award of any such contract shall be conditioned upon the Contract Compliance Officer's (or appropriate Deputy's or Assistant's) notification to the contracting officer or approving officer that the bidder, offeror, or applicant has taken action or has agreed to take action satisfactory to the Contract Compliance Officer (or appropriate Deputy or Assistant), or the head of the agency as provided in this Subpart 1-12.8. Any such agreement to take action shall be stated in the contract, if the Contract Compliance Officer (or appropriate Deputy or Assistant) so requires.

(e) Evaluations. The Director may, from time to time, evaluate the programs, procedures, and policies of agencies in order to assure their compliance with the Order and this Subpart 1-12.8 and the compliance of prime contractors and subcontractors with the Equal Opportunity clause.

§ 1-12.805-2 Educational responsibility.

(a) Contracting officers and other personnel concerned with procurement shall be apprised of their responsibilities for obtaining compliance with the Equal Opportunity clause.

(b) The agency shall publicize the equal opportunity policy to prospective bidders and contractors, and shall make available to contractors informa

tion concerning their responsibilities under the clause.

§ 1-12.805-3 Notices to be posted.

(a) Requirement. Unless alternative notices are prescribed by the Director, or by the agency with the approval of the Director, prime contractors and subcontractors shall post the notice entitled "Equal Employment Opportunity Is The Law," as provided by the notice posting requirements of the Equal Opportunity clause.

(b) Acquisition of notices. The notice "Equal Employment Opportunity Is The Law" is available in all GSA supply depots. Copies of the notice may be obtained from GSA through the contracting or administering agency. The stock numbers for the notice are as follows:

§ 1-12.805-4 Reports and other required information.1

(a) Requirements for prime contractors and subcontractors. (1) Each agency shall require each prime contractor and each prime contractor and subcontractor shall cause its subcontractors to file annually, on or before March 31, complete and accurate reports on Standard Form 100 (EEO-1) promulgated jointly by the Office of Federal Contract Compliance, the Equal Employment Opportunity Commission, and Plans for Progress, or on such form as may hereafter be promulgated in its place, if such prime contractor or subcontractor (i) is not exempt from the provisions of this Subpart 1-12.8 in accordance with § 112.804; (ii) has 50 or more employees; (iii) is a prime contractor or first-tier subcontractor; and (iv) has a contract, subcontract, or purchase order amounting to $50,000, or more, or serves as a depositary of Government

'See Temporary Regulation 19 published at 35 FR 14747, Sept. 22, 1970, for temporary changes to § 1-12.805-4.