(a) General--(1) Transactions of $10,000 or under. Contracts and
subcontracts not exceeding $10,000, other than Government bills of
lading, and other than contracts and subcontracts with depositories of
Federal funds in any amount and with financial institutions which are
issuing and paying agents for U.S. savings bonds and savings notes, are
exempt from the requirements of
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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.
No agency, contractor, or subcontractor shall procure supplies or
services in a manner so as to avoid applicability of the equal
opportunity clause: Provided, that where a contractor has contracts or
subcontracts with the Government in any 12-month period which have an
aggregate total value (or can reasonably be expected to have an
aggregate total value) exceeding $10,000, the $10,000 or under exemption
does not apply, and the contracts are subject to the order and the
regulations issued pursuant thereto regardless of whether any single
contract exceeds $10,000.
(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. 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.
(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, any agency,
instrumentality or subdivision of such government, except for
educational institutions and medical facilities, are exempt from the
requirements of filing the annual compliance report provided for by
Sec. 60-1.7(a)(1) and maintaining a written affirmative action
compliance program prescribed by Sec. 60-1.40 and Part 60-2 of this
chapter.
(5) Contracts with religious entities. Section 202 of Executive
Order 11246, as amended, shall not apply to a Government contractor or
subcontractor that is a religious corporation, association, educational
institution, or society, with respect to the employment of individuals
of a particular religion to perform work connected with the carrying on
by such corporation, association, educational institution, or society of
its activities. Such contractors and subcontractors are not exempted or
excused from complying with the other requirements contained in this
Order.
(6) Contracts with certain educational institutions. It shall not be
a violation of the equal opportunity clause for a school, college,
university, or other educational institution or institution of learning
to hire and employ employees of a particular religion if such school,
college, university, or other educational institution or institution of
learning is, in whole or in substantial part, owned, supported,
controlled, or managed by a particular religion or by a particular
religious corporation, association, or society, or if the curriculum of
such school, college, university, or other educational institution or
institution of learning is directed toward the propagation of a
particular religion. The primary thrust of this provision is directed at
religiously oriented church-related colleges and universities and should
be so interpreted.
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(7) Work on or near Indian reservations. It shall not be a violation
of the equal opportunity clause for a construction or nonconstruction
contractor to extend a publicly announced preference in employment to
Indians living on or near an Indian reservation in connection with
employment opportunities on or near an Indian reservation. The use of
the word ``near'' would include all that area where a person seeking
employment could reasonably be expected to commute to and from in the
course of a work day. Contractors or subcontractors extending such a
preference shall not, however, discriminate among Indians on the basis
of religion, sex, or tribal affiliation, and the use of such a
preference shall not excuse a contractor from complying with the other
requirements contained in this chapter.
(b) Specific contracts and facilities--(1) Specific contracts. The
Deputy Assistant Secretary 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 Deputy Assistant
Secretary 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.
(2) Facilities not connected with contracts. The Deputy Assistant
Secretary 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 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.
(c) National security. Any requirement set forth in these
regulations in this part shall not apply to any contract or subcontract
whenever the head of an 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 will
notify the Deputy Assistant Secretary in writing within 30 days.
(d) Withdrawal of exemption. When any contract or subcontract is of
a class exempted under this section, the Deputy Assistant Secretary 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 to achieve the purposes of the order. Such
withdrawal shall not apply to contracts or subcontracts 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.
[43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3, 1978, as amended at 62
FR 66971, Dec. 22, 1997; 68 FR 56393, Sept. 30, 2003]
