§ 1-12.604 Responsibilities of contracting officers.

(a) The responsibility for applying the eligibility requirements set forth in § 1-12.601 rests, in the first instance, with the contracting officer. The Department of Labor does not conduct preaward investigations. It does not render final determinations of eligibility until the contracting officer initially has determined whether the eligibility requirements have been met and any negative determinations involving small business concerns have been confirmed by the Small Business Administration.

(b) When the contracting officer determines that a concern is not responsible (due to ineligibility under the provisions of the Walsh-Healey Public Contracts Act) and that the concern is a small business concern, the determination shall be forwarded to the Small Business Administration in accordance with the procedures in § 1-1.708. If SBA agrees with the contracting officer that the concern is ineligible, SBA will forward the matter to the Secretary of Labor for a final determination of eligibility or ineligibility (see 15 U.S.C. 637(b)(7)).

(c) When the eligibility of a bidder or offeror is challenged before award, it should be treated in a manner similar to a protest before award (see § 12.407-8). The contracting officer should make an initial determination and should process the protest in accordance with agency procedures for submission to the Department of Labor for a final determination. However, if the challenged concern is a small business, the matter shall be forwarded to SBA.

(d) Whenever the Walsh-Healey Public Contracts Act is applicable, the contracting officer shall proceed (in accordance with regulations or instructions issued by the Secretary of Labor and individual agency procedures) as follows:

(1) Inform prospective contractors of the applicability of minimum wage determinations;

(2) Furnish to the contractor Department of Labor Form WH-1313 (1978 edition), Notice to Employee Working on Government Contracts, explaining the application of the

The following clause shall be used as required by this Subpart 1-12.6:

WALSH-HEALEY PUBLIC CONTRACTS ACT

If this contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $10,000 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S. Code 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

Subpart 1-12.7—Fair Labor Standards Act of 1938

§ 1-12.701 Basic statute.

The Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201-219), provides for the establishment of minimum wage and maximum hour standards, creates a Wage and Hour Division in the Department of Labor for purposes of interpretation and enforcement (including investigation and inspection of Government contractors), prohibits oppressive child labor and, under an amendment contained in the Equal Pay Act of 1963 (77 Stat. 56, 29 U.S.C. 206), prohibits discrimination on the basis of sex. The Fair Labor Standards Act applies to all employees, unless otherwise exempted,

who are engaged in (a) interstate commerce or foreign commerce, (b) the production of goods for such commerce, or (c) any closely related process or occupation essential to such production.

[30 FR 16111, Dec. 28, 1965]

§ 1-12.702 Rulings on applicability or interpretation.

Contractors or contractor employees who inquire concerning applicability or interpretation of the Fair Labor Standards Act shall be advised that rulings concerning such matters fall within the jurisdiction of the Department of Labor, and shall be given the address of the appropriate regional office of the Wage and Hour and Public Contracts Divisions of the Department of Labor.

Subpart 1-12.8-Equal Opportunity in Employment

SOURCE: 33 FR 10715, July 27, 1968 unless otherwise noted.

CROSS REFERENCE: For a temporary regulation relating to equal opportunity in employment, see Temporary Reg. 19, 35 FR 14747, Sept. 22, 1970.

§ 1-12.800 Scope of subpart.

This subpart sets forth policies and procedures for carrying out the requirements of Executive Order No. 11246 of September 24, 1965 (30 F.R. 12319), Executive Order No. 11375 of October 13, 1967 (32 F.R. 14303), and the rules and regulations of the Secretary of Labor (33 F.R. 7804). The provisions of this subpart shall be employed by agencies with respect to Government contracts and subcontracts and may be adopted by agencies for use in connection with programs involving Federal assistance.

§ 1-12.801 General.

(a) Executive Order No. 11246 sets forth policies regarding equal employment opportunity. It provides in section 201 that "the Secretary of Labor shall be responsible for the administration of Parts II and III of this Order and shall adopt such rules and regulations and issue such orders as he deems necessary and appropriate to

achieve the purposes thereof." Parts II and III of the Order concern "Nondiscrimination in Employment by Government Contractors and Subcontractors" and "Nondiscrimination Provisions in Federally Assisted Construction Contracts," respectively.

(b) The regulations of the Secretary of Labor (see § 1-12.800) apply to all contracting agencies of the Government and to contractors and subcontractors who perform under Government contracts, to the extent set forth in 41 CFR Part 60-1, Obligations of Contractors and Subcontractors. The regulations also apply to all agencies of the Government administering programs involving Federal financial assistance which may include a construction contract, and to all contractors and subcontractors performing under construction contracts which are related to any such programs. The procedures set forth in those regulations govern all disputes relative to a contractor's compliance with his obligations under the equal opportunity clause regardless of whether or not his contract contains a "Disputes" clause (see § 1-12.805-10).

(c) The rights and remedies of the Government under the rules and regulations of the Secretary of Labor are not exclusive and do not affect rights and remedies provided elsewhere by law, regulation, or contract; neither do the regulations limit the exercise by the Secretary or Government agencies of powers not therein specifically set forth, but granted to them by the Order.

(d) The functions vested in the Secretary of Labor by Executive Order No. 11246 were previously exercised by the President's Committee on Equal Employment Opportunity pursuant to Executive Order No. 10925 of March 6, 1961, and Executive Order No. 11114 of June 22, 1963 (3 CFR, 1959-1963 Comp., pages 448 and 774, respectively). The rules and regulations prescribed by the committee in 41 CFR Part 60-1 for the administration of those orders were adopted by the Secretary of Labor on October 24, 1965 (30 FR 13441), pending the promulgation of revised rules and regulations. Such revised rules and regulations

subsequently were adopted by the Secretary of Labor (see § 1-12.800).

§ 1-12.802 Definitions.

As used in this subpart, the following terms have the meanings stated.

(a) "Administering agency" means any department, agency, and establishment in the executive branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.

(b) "Agency" means any contracting or any administering agency of the Government.

(c) "Applicant" means an applicant for Federal assistance involving a construction contract or other participant in a program involving a construction contract as determined by regulation of an administering agency. The term also includes such persons after they become recipients of such Federal assistance.

(d) "Compliance agency" means the agency designated by the Director on a geographical, industry, or other basis to conduct compliance reviews and to undertake such other responsibilities in connection with the administration of the Order as the Director may determine to be appropriate. In the absence of such a designation, the compliance agency will be determined as follows:

(1) In the case of a prime contractor not involved in construction work, the compliance agency will be the agency whose contracts with the prime contractor have the largest aggregate dollar value;

(2) In the case of a subcontractor not involved in construction work, the compliance agency will be the compliance agency of the prime contractor with which the subcontractor has the largest aggregate value of subcontracts or purchase orders for the performance of work under contracts;

(3) In the case of a prime contractor or subcontractor involved in construction work, the compliance agency for each construction project will be the agency providing the largest dollar value for the construction project; and (4) In the case of a contractor who is both a prime contractor and subcon

tractor, the compliance agency will be determined as if such contractor is a prime contractor only.

(e) "Construction work" means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

(f) "Contract" means any Government contract or any federally assisted construction contract.

(g) "Contracting agency" means any department, agency, establishment, or instrumentality in the executive branch of the Government, including any wholly owned Government corporation, which enters into contracts.

(h) "Contractor" means, unless otherwise indicated, a prime contractor or

subcontractor.

(i) "Director" means the Director, Office of Federal Contract Compliance, U.S. Department of Labor, or any person to whom he delegates authority under this Subpart 1-12.8.

(j) "Equal Opportunity clause" means the contract provisions set forth in § 1-12.803-2 or § 1-12.803-4, as appropriate.

(k) "Federally assisted construction contract" means any agreement, or modification thereof, between any applicant and a person for construction work which is paid for, in whole or in part, with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.

(1) "Government" means the Government of the United States of America.

(m) "Government contract" means any agreement, or modification thereof, between any contracting agency

and any person for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements. The term “services," as used in this paragraph (m) includes, but is not limited to, the following services: Utility, construction, transportation, research, insurance, and fund depositary. The term "Government contract" does not include (1) agreements in which the parties stand in the relationship of employer and employee, (2) federally assisted construction contracts, and (3) contracts for the sale of real and personal property by the Government.

(n) "Hearing officer" means the individual or board of individuals designated to conduct hearings.

(o) "Modification" means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments, and extensions.

(p) "Order" means Parts II, III, and IV of Executive Order No. 11246 of September 24, 1965 (30 FR 12319), any Executive order amending such Order, and any other Executive order superseding such Order.

(q) "Person" means any natural person, corporation, partnership, unincorporated association, State or local government, and any agency, instrumentality, or subdivision of such a government.

(r) "Prime contractor" means any person holding a contract and, for the purposes of §§ 1-12.805-5 through 112.805-11 and § 1-12.807, any person who has held a contract subject to the Order.

(s) "Recruiting and training agency" means any person who refers workers to any contractor, or subcontractor, or who provides or supervises apprenticeship or training for employment by any contractor or subcontractor.

(t) "Rules, regulations, and relevant orders of the Secretary of Labor" as used in the Equal Opportunity clause means rules, regulations, and relevant orders of the Secretary of Labor, or his designee, issued pursuant to the Order.

(u) "Secretary" means the Secretary of Labor, U.S. Department of Labor.

(v) "Site of construction" means the general physical location of any building, highway, or other change or im

provement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair, and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to the contract or subcontract.

(w) "Subcontract" means any agreement or arrangement between a contractor and any person (in which the 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.

(x) "Subcontractor" means any person holding a subcontract and, for the purposes of §§ 1-12.805-5 through 1-12.805-11 and § 1-12.807, any person who has held a subcontract subject to the Order. The term "first-tier subcontractor" refers to a subcontractor holding a subcontract with a prime contractor.

(y) "United States" as used in this subpart shall include the States, the District of Columbia, the Commonwealth of Puerto Rico, the Panama Canal Zone, and the possessions of the United States.

§ 1-12.803 Basic requirements.

§ 1-12.803-1 Government contracts.

Except as otherwise provided, each contracting agency shall include the Equal Opportunity clause prescribed in § 1-12.803-2 in each of its Government contracts (including modifications thereof).

§ 1-12.803-2 Equal Opportunity clause. EQUAL OPPORTUNITY 1

(The following clause is applicable unless this contract is exempt under the rules, regulations, and relevant orders of the Secretary of Labor (41 CFR, ch. 60).)

During the performance of this contract, the Contractor agrees as follows:

'On and after Oct. 14, 1968, the term “race, color, religion, sex, or national origin” is substituted for the term "race, creed, color, or national origin," as provided by Executive Order No. 11375, Oct. 13, 1967 (32 FR 14303).

(a) The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, 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, creed, color, 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 Equal Opportunity clause.

(b) 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, creed, color, or national origin.

(c) 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 this Equal Opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(d) 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.

(e) 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 contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(f) In the event of the Contractor's noncompliance with the Equal Opportunity 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 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, regulation, or order of the Secre

tary of Labor, or as otherwise provided by law.

(g) The Contractor will include the provisions of paragraphs (a) through (g) 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 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 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.

§ 1-12.803-3 Federally assisted construction contracts.

Except as otherwise provided, each administering agency shall require the inclusion of the Equal Opportunity (Applicant) clause prescribed in § 112.803-4 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 (Federally Assisted Construction) clause contained therein.

§ 1-12.803-4 Equal Opportunity (Applicant) clause.

EQUAL OPPORTUNITY (APPLICANT)

(a) The applicant hereby agrees to incorporate, or cause to be incorporated, into any contract for construction work, or modification thereof, as defined in the rules and 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 Federal Government or borrowed on the credit of the Federal Government pursuant to grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following Equal Opportunity (Federally Assisted Construction) clause:

(b) The applicant further agrees that it will be bound by the above Equal Opportunity (Federally Assisted Construction) clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, however, That if the applicant so participating