CFR |
Code of Federal Regulations Pertaining to ESA |
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Title 41 |
Public Contracts and Property Management |
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Chapter 60 |
Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor |
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Part 60-741 |
Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities |
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Subpart A |
Preliminary Matters, Equal Opportunity Clause |
- Section Number: 60-741.4
- Section Name: Coverage and waivers.
(a) Coverage--(1) Contracts and subcontracts in excess of $10,000.
Contracts and subcontracts in excess of $10,000 are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of the
equal opportunity clause.
(2) Positions engaged in carrying out a contract. (i) With respect
to the contractor's employment decisions and practices occurring before
October 29, 1992, this part applies only to employees who were employed
in, and applicants for, positions that were engaged in carrying out a
Government contract; with respect to employment decisions and practices
occurring on or after October 29, 1992, this part applies to all of the
contractor's positions irrespective of whether the positions are or were
engaged in carrying out a Government contract. A position shall be
considered to have been engaged in carrying out a contract if:
(A) The duties of the position included work that fulfilled a
contractual obligation, or work that was necessary to, or that
facilitated, performance of the contract or a provision of the contract;
or
(B) The cost or a portion of the cost of the position was allowable
as a cost of the contract under the principles set forth in the Federal
Acquisition Regulation at 48 CFR Ch. 1, part 31: Provided, That a
position shall not be considered to have been covered by this part by
virtue of this provision if the cost of the position was not allocable
in whole or in part as a direct cost to any Government contract, and
only a de minimis (less than 2%) portion of the cost of the position was
allocable as an indirect cost to Government contracts, considered as a
group.
(ii) Application. Where a contractor or a division or establishment
of a contractor was devoted exclusively to Government contract work, all
positions within the contractor, division, or establishment shall be
considered to have been covered by this part. (Appendix D of this part
provides guidance on positions engaged in carrying out a contract.)
(3) Contracts and subcontracts for indefinite quantities. With
respect to indefinite delivery-type contracts and subcontracts
(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 contracting agency has reason to believe that the
amount to be ordered in any year under such contract will not be in
excess of $10,000. The applicability of the equal opportunity clause
shall be determined at the time of award for the first year, and
annually thereafter for succeeding years, if any. Notwithstanding 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.
(4) Employment activities within the United States. This part
applies only to employment activities within the United States and not
to employment
activities abroad. The term employment activities within the United
States includes actual employment within the United States, and
decisions of the contractor made within the United States, pertaining to
the contractor's applicants and employees who are within the United
States, regarding employment opportunities abroad (such as recruiting
and hiring within the United States for employment abroad, or transfer
of persons employed in the United States to contractor establishments
abroad).
(5) 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.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Deputy Assistant Secretary may waive the application to any contract of
the equal opportunity clause in whole or part when he or she deems that
special circumstances in the national interest so require. The Deputy
Assistant Secretary may also grant such waivers to groups or categories
of contracts: where it is in the national interest; where it is found
impracticable to act upon each request individually; and where such
waiver will substantially contribute to convenience in administration of
the act. When a waiver has been granted for any class of contracts, the
Deputy Assistant Secretary may withdraw the waiver for a specific
contract or group of contracts to be awarded, when in his or her
judgment such action is necessary or appropriate to achieve the purposes
of the act. The withdrawal shall not apply to contracts awarded prior to
the withdrawal, except that in procurements entered into by formal
advertising, or the various forms of restricted formal advertising, such
withdrawal shall not apply unless the withdrawal is made more than 10
calendar days before the date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the Deputy
Assistant Secretary in writing within 30 days.
(3) Facilities not connected with contracts. (i) Upon the written
request of the contractor, the Deputy Assistant Secretary may waive the
requirements of the equal opportunity clause with respect to any of a
contractor's facilities if the Deputy Assistant Secretary finds that
the contractor has demonstrated that:
(A) The facility is in all respects separate and distinct from
activities of the contractor related to the performance of a contract;
and
(B) Such a waiver will not interfere with or impede the
effectuation of the act.
(ii) The Deputy Assistant Secretary's findings as to whether the
facility is separate and distinct in all respects from activities of
the contractor related to the performance of a contract shall include
consideration of the following factors:
(A) Whether any work at the facility directly or indirectly
supports or contributes to the satisfaction of the work performed on a
Government contract;
(B) The extent to which the facility benefits, directly or
indirectly, from a Government contract;
(C) Whether any costs associated with operating the facility are
charged to a Government contract;
(D) Whether working at the facility is a prerequisite for
advancement in job responsibility or pay, and the extent to which
employees at facilities connected to a Government contract are
recruited for positions at the facility;
(E) Whether employees or applicants for employment at the facility
may perform work related to a Government contract at another facility,
and the extent to which employees at the facility are interchangeable
with employees at facilities connected to a Government contract; and
(F) Such other factors that the Deputy Assistant Secretary deems
are necessary or appropriate for considering whether the facility is in
all respects separate and distinct from the activities of the
contractor related to the performance of a contract.
(iii) The Deputy Assistant Secretary's findings as to whether
granting a waiver will interfere with or impede the effectuation of the
act shall include consideration of the following factors:
(A) Whether the waiver will be used as a subterfuge to circumvent
the contractor's obligations under the act;
[[Page 45180]]
(B) The contractor's compliance with the act or any other Federal,
State or local law requiring equal opportunity for disabled persons;
(C) The impact of granting the waiver on OFCCP enforcement efforts;
and
(D) Such other factors that the Deputy Assistant Secretary deems
are necessary or appropriate for considering whether the granting of
the waiver would interfere with or impede the effectuation of the act.
(iv) A contractor granted a waiver under paragraph (b)(3) of this
section shall:
(A) Promptly inform the Deputy Assistant Secretary of any changed
circumstances not reflected in the contractor's waiver request; and
(B) Permit the Deputy Assistant Secretary access during normal
business hours to the contractor's places of business for the purpose
of investigating whether the facility granted a waiver meets the
standards and requirements of paragraph (b)(3) of this section, and for
inspecting and copying such books and accounts and records, including
computerized records, and other material as may be relevant to the
matter under investigation.
(v)(A) A waiver granted under paragraph (b)(3) of this section
shall terminate on one of the following dates, whichever is earliest:
(1) Two years after the date the waiver was granted.
(2) When the facility performs any work that directly supports or
contributes to the satisfaction of the work performed on a Government
contract.
(3) When the Deputy Assistant Secretary determines, based on
information provided by the contractor under this section or upon any
other relevant information, that the facility does not meet the
requirements of paragraph (b)(3) of this section.
(B) When a waiver terminates in accordance with paragraph
(b)(3)(v)(A) of this section the contractor shall ensure that the
facility complies with this part on the date of termination, except
that compliance with Secs. 60-741.40 through 60-741.45, if applicable,
must be attained within 120 days of such termination.
(vi) False or fraudulent statements or representations made by a
contractor under paragraph (b)(3) of this section are prohibited and
may subject the contractor to sanctions and penalties under this part
and criminal prosecution under 18 U.S.C. 1001.
Source: 61 FR 19350, May 1, 1996, as amended at 65 FR 45179, July 20, 2000
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