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Transcript: EEO Responsibilities in Procurement

John Andre (JA): Hello, thank you for joining today's Acquisition Seminar, hosted by the Federal Acquisition Institute. Today's seminar, entitled "Equal Employment Opportunity Responsibilities of Federal Procurement Officers: An Update", presents a look at the recent changes to the equal employment opportunity requirements established by the Office of Federal Contract Compliance Programs in the U.S. Department of Labor. As an acquisition professional there are so many details that you need to give your attention to in a procurement action. Methods of acquisition, past performance, the excluded parties list, drug-free workplace requirements, compliance with green contracting provisions, and so on. It can be absolutely overwhelming. Not to be forgotten, are vendor equal opportunity requirements. OFCCP will provide information on updates to the Vietnam-era Veterans' Readjustment Assistance Act of 1974, section 503 of the rehabilitation act of 1973, and the recently issued Executive Order 13672, prohibiting discrimination on the basis of sexual orientation and gender identity. In addition, our presenters will discuss the impact of these changes on Federal government contracts and the equal opportunity clause, the pre-award clearance process, the Federal Acquisition Regulation, the contractors' filing of the EEO-one report, and the 'qual employment opportunity is the law' poster. Before we begin, let me remind you that we will hold a live question-and-answer session at the end of this presentation. If you have a question about anything you may hear from our presenters, we encourage you to submit it at any time using the survey link on the right side of the video screen. We will collect and review your questions during the presentation, take a short break, and then return to answer as many as we can. Also, we would love to get your suggestions on future Acquisition Seminar topics. So let's join Brenda Williams Stuart in the Office of Federal Contract Compliance Programs, Department of Labor, who will be our guide to EEO responsibilities of Federal procurement officers. 
Brenda Williams Stewart (BWS): Welcome, everyone. My name is Brenda Williams Stewart and I am with the Office of Federal Contract Compliance Programs, better known as OFCCP. I am your moderator for today's presentation on responsibilities of Federal procurement officers. I want to thank FAI for working with OFCCP in this joint effort to provide you with important information. I have with me today several OFCCP officials who are going to review with you the Equal Employment Opportunity requirements associated with Federal contracting and the related obligations of procurement and contracting officers. During today's presentation, we will also update you on recent changes to our program. We welcome your questions throughout the presentation, so please send them in and we will address the answers at the end of our presentation. To begin our presentation I take great pleasure in introducing you to Debra Carr, who serves as the Director of the Division of Policy and Program Development for OFCCP at the IS Department of Labor in Washington, D.C.. She leads the policies of two branches; the branch of regulatory, legislative and policy development, and the branch of training, education, and program development. Ms. Carr joined OFCCP after serving as Associate Deputy Staff Director for the US Commission on Civil Rights, also known as USCCR, and before that, as its General Counsel. While at USCCR, Ms. Carr wrote several vital reports with important policy ramifications, including an evaluation of the Native American health care system and the need to reauthorize the Indian Healthcare Improvement Act; an assessment of the effectiveness of the No Child Left Behind Act; and the review of the usefulness of Executive Order 12898, entitled, "Federal Actions for Achieving Environmental Justice". Before joining USCCR, Ms. Carr distinguished herself as a civil rights lawyer at the Department of Justice, handling some of this country's most difficult and heinous violations of Federal, criminal civil rights statutes. Ms. Carr headed a White House office and represented the U.S. at the United Nations on issues related to racism and xenophobia. She also participated in the preparation of the government's report to the U.N. committee on the elimination of racial discrimination. I will now turn the presentation over to Debra Carr for opening remarks. 
Debra Carr (DC): Hi. I am Debra Carr, the Director of Policy for the Department of Labor's Office of Federal Contract Compliance Programs. I wanted to extend my thanks to FAI for inviting me and my colleagues to represent our Director, Pat Shu, in this training event. As some of you know, the Department of Labor has been actively involved in new rulemaking over the last four years. Some of those new regulations will have a direct impact on how Federal contracting officers conduct their day-to-day business. The value of having OFCCP participate in this training opportunity is that we hope to inform you of your new obligations created by these recent rulemakings. For example, we have recently updated regulations governing the employment of people with disabilities, the recruitment and employment of veterans, especially disabled veterans, and we recently completed a final rule protecting the employment rights of LGBT individuals, as we call it at the Office of Federal Contract Compliance Programs. We currently have pending an update to regulations governing sex discrimination as well. As you will hear during the course of this presentation, many of these new rules require contractors to incorporate into their subcontracts specific language governing equal opportunity. In addition, contracting officers with Federal agencies will also be required to include specific language in their prime contracts with companies doing business with the Federal Government. We at OFCCP hope that you will find the information that you will hear throughout this training opportunity useful. What we found as we did rulemaking over the last four years is that at least two of our new regulations have the potential to increase the employment opportunities of more than 600,000 individuals. We can only get to that number by working in partnership with you. So, please, listen to the information and find a way that we can work together to ensure that all qualified Americans have equal opportunity to significant employment opportunities and that we can achieve the goal of full employment for most qualified Americans. So, the expectation is that by working together you can help us achieve our goal of strengthening America's middle class, by providing qualified workers a real opportunity at good paying jobs. Listen to the important information, enjoy this opportunity, and we look forward to working with you in the future. With that I turn this over to Brenda, who introduces the next portion of the program. 
BWS: Also joining us today are two OFCCP representatives that bring many years of experience in enforcing civil rights laws and ensuring contract compliance. Melissa Speer is the Regional Director of the OFCCP Southwest and Rocky Mountain region, also known as SWARM. She provides leadership for more than 91 employees spanning 11 states and seven offices. She has been making workplaces fair since she came to OFCCP in 1989. She began her career as a compliance officer in our Little Rock area office and has worked throughout the SWARM region as a liaison officer, District Director in Dallas, Director of Regional Operations, and Deputy Regional Director. Ms. Speer received a bachelors of science in accounting from the University of Arkansas, Little Rock in 1988, as well as a Masters of business administration in 1991. In addition, we also have Herman Narcho, who is OFCCP's Branch Chief for Enforcement. He is located in the national office, and began his career at OFCCP in February of 2014. Prior to his move to OFCCP, Herman had over 20 years of experience at DOL's Office of the Solicitor, where he provided legal advice on procurement, appropriation, and intellectual property issues, as well as litigated bid protests and contract claim cases. During his tenure at SOL, Herman also provided legal advice to SOL's Mind, Safety, and Health Division, drafting and reviewing safety regulations for the Mind, Safety, and Health Administration, and providing legal advice to all areas of DOL's Employment and Training Administration. He has managed legislative and departmental communications between DOL, Congress, and OMB. He was a law clerk to Judge Robert A. Hodges of the US Court of Federal Claims, and is a graduate of Georgetown Law School and Dartmouth College. Welcome Melissa and Herman, I will turn the presentation over to you. 
Melissa Speer (MS): Thank you, Brenda. I want to thank FAI for giving us the opportunity to speak with a very important segment of our stakeholders- Federal procurement and contracting officers. During today's presentation we would like to introduce you to the Office of Federal Contract Compliance Programs, or OFCCP, what we as a Federal agency do, the laws we enforce, and how we enforce them. We will also discuss which contractors are covered. We will discuss how the regulations we enforce interact with the FAR, the rules that regulate your work, the general responsibilities of contracting officers during the pre-and post-award time of a contract. We will also provide an overview of the pre-award process, which is one of the most important responsibilities of procurement officers. Throughout the presentation, we will incorporate recent changes to the laws enforced by OFCCP, and how it relates or impacts your responsibilities as a procurement officer.
OFCCP is an agency within the U.S. Department of Labor that enforces laws prohibiting employment discrimination of Federal contractors and subcontractors. Federal contractors and subcontractors are those employers that are doing business with the Federal Government. This includes all types of businesses: construction, manufacturers, banks, leasing companies, and so on. The laws enforced by OFCCP prohibit covered Federal contractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or the status as a protected veteran, and requires those contractors to engage in affirmative action. OFCCP is made up of the national office in Washington, D.C., six regional offices nationwide, and 49 District and area offices in major metropolitan areas throughout the United States including Puerto Rico and Guam. As a Federal procurement officer, your primary point of contact will be with our regional offices located in Dallas, San Francisco, Chicago, New York, Philadelphia, and Atlanta. Generally speaking, procurement officers will contact the regional offices through the pre-award monitor . We will discuss that process later in the presentation.
OFCCP enforces civil rights laws that protect applicants and employees of Federal contractors, subcontractors, and Federally-assisted construction contractors and subcontractors. These laws are Executive Order 11246, which prohibits the discrimination on the basis of race, color, religion, sexual orientation, gender identity, and national origin. Section 503 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability; and the Vietnam-era Veterans' Assistance Act of 1974, or VEVRAA, prohibits discrimination on the basis of a status as a protected veteran. I want to take a moment to highlight some of the recent changes in each of these laws. Recently the Executive Order was amended to include the prohibition of discrimination based on sexual orientation and gender identity. This amendment to the Executive Order goes into effect on April 8 of 2015, and applies to covered Federal contracts and subcontracts that are entered into or modified on after April 8, 2015. In terms of what contracting officers need to do, the Executive Order equal opportunity clause was amended to include sexual orientation and gender identity. When we discuss the equal opportunity or EO clauses, we will highlight where it is inserted. In addition, OFCCP has published two notices of proposed rulemaking. The first will prohibit covered contractors from disciplining their employees from discussing and disclosing their pay, and the second will require covered contractors to provide an annual report on compensation paid to employees. The prohibition pay secrecy policies also impact the EO clause by adding a new paragraph to the clause. When the rules are finalized, the EO clause will be revised to cover contracts issued on or after the effective date of those rules.
Another significant change we made was in March of last year. We published two new regulations implementing the requirements of Section 503 of the Rehabilitation Act and VEVRAA. This was the first major change for both of these rules since 1970. The changes were made to update the regulations to reflect current practices and legal standards, as well as to ensure a more proactive approach to ensuring that individuals with disabilities and protected veterans have an equal opportunity in employment with Federal contractors and subcontractors. Contractors are now in the process of coming into compliance with the new requirements, that include self-identification of applicants and employees, goals and hiring benchmarks, and data collection. If these questions come to you as a procurement officer, we request that you refer the contractors to either our website, or our help desk, so that we can provide them with the information they need to comply. The laws that OFCCP enforce can be found at the Code of Federal Regulations at Title 41 Chapter 60. The requirements related to procurement officers are incorporated into the FAR.
So, which contractors are actually covered? There are specific thresholds associated with OFCCP's jurisdiction. For the Executive Order, it is a contract that is covered in excess of $10,000. In addition, non-construction or supply service contractors with a contract of $50,000 or more and have 50 or more employees must also develop and maintain a written affirmative action program. Contractors must comply with specific affirmative action requirements, including outreach and recruitment efforts, self-monitoring of their employment practices, the identification and correction of discriminatory practices, and the identification and removal of any barriers to equal employment opportunity. The Rehabilitation Act applies to contracts and subcontracts in excess of $15,000. You may be familiar with the previous threshold of $10,000. This threshold is affected by an adjustment in inflation rate that made it the $15,000. In addition, contractors with contracts of $50,000 or more, and have 50 or more employees must also develop and maintain written affirmative action programs. Unlike the Executive Order, this requirement for written affirmative action program applies to both non-construction and construction contractors. VEVRAA applies to contractors of $100,000 or more. Contractors with 50 or more employees are required to develop and maintain a written affirmative action program. Like Section 503, this obligation applies to both construction and non-construction contractors. The protections of VEVRAA apply to protected veterans, which are defined as -- disabled veterans, determined as those who will receive disability compensation from the VA, or would be eligible but not for retired military pay; recently separated veterans; veterans who served on active duty during a war or campaign when a badge was authorized; and veterans who participated in U.S. military operations that received an armed forces service medal.
To ensure contractors comply with these laws, OFCCP conducts its civil rights enforcement responsibilities in a number of ways. OFCCP conducts compliance evaluations of contractors and subcontractors, even when no discrimination complaint has been filed. We take a hard look at the company's employment practices and policies, including policies related to hiring, testing, promotions, compensations, and terminations, to ensure discrimination has not occurred. To do that we review the contractors AAP and other records. We may also decide to do an on-site to the contractor's facility and interview managers and employees, among other things. OFCCP investigates complaints of discrimination filed by individuals or groups. It deals exclusively with employers that are Federal contractors. Only the laws that OFCCP enforces require affirmative action by covered contractors to ensure that all are provided with equal employment opportunity. We work closely with the Equal Employment Opportunity Commission, or EEOC, to ensure that there is no duplication of efforts by our respective agencies and to ensure that any misfiled complaints are properly redirected to the correct agency.
In addition to conducting compliance evaluations and investigating complaints, OFCCP provides free compliance assistance to contractors to assist them in complying with the laws that OFCCP enforces, including workshops on different topics, such as guidance for new contractors, how to develop an AAP, and of course on any new regulations. OFCCP also educates community-based organizations and members of the public to facilitate an understanding of and compliance with the laws that we enforce. This might include events in which organizations are invited to attend and to assist in building collaborations between contractors and those organizations serving people with disabilities. Now I would like to turn the presentation over to Herman. 
Herman Narcho (HN): Thank you. As we explained earlier, OFCCP's regulations are codified in the Code of Federal Regulations, Title 41, Chapter 60, and in addition requirements related to procurement officers are incorporated into the FAR, which is the set of regulations governing all acquisitions and contracting procedures for the Federal government. As many of you may be aware, the FAR is designed to present a common set of regulations and procedures for acquisitions to be used throughout the Federal government. It contains an overall structure of broad procedures for the government to use when purchasing goods and services.
The equal opportunity requirements derived from Executive Order 11246 are found in the FAR at 22.8. These regulations address the requirements for procurement officers as they relate to incorporating equal opportunity employment into contracts and the contract process. It includes the affirmative action requirements for construction, non-construction, and supply and service contractors found in FAR 22.804, and the contracting procedures found in 22.805, including pre-award clearances, which we will be discussing. In addition, the FAR includes section 503 and Federal procedures for Contracting Officers. These are incorporated into the FAR, in Subparts 22.13 and 22.14. Subpart 22.13--this section covers a range of definitions and descriptions for veterans, and discusses policies and procedures for hiring protected veterans. It also describes affirmative action requirements. Subpart 22.14--this section provides detail on employment workers with disabilities, including policies and procedures for hiring workers with disabilities. Let's review the responsibilities requirements. We will begin by breaking down the steps.
Looking at the requirements in the process, we have identified three significant stages of equally significant responsibilities. These are: the solicitations for request for proposals and time frames; pre-award; and post-award of the contract. We will review these stages and the specific actions or obligations of Federal procurement officers in the next several slides. When a Contracting Officer is putting together the request for proposal or the invitation of bids for a contract, certain provisions must be included. The purpose is to give notice to all prospective contractors that the contract is a covered contract that includes provisions related to equal employment opportunity and affirmative action. Provisions include ensuring that facilities are not segregated, whether or not the prospective contractor has ever been a Federal contractor, and whether or not the contractor has provided required reports, specifically the EEO1 report and the annual report for veteran hiring. The provisions also include notification of visa or not, if the contractor is required to provide work in or on behalf of a foreign country.
In addition, the notice provides information related to the requirement for affirmative action. For non-construction or supply and service contractors, this involves the assurance that if it meets the specific threshold, it has or will be able to develop and maintain the required written affirmative action program. An additional significant provision is the notice of pre-award on-site evaluation. This notification advises the prospective contractor that they could be the subject of a pre-award compliance evaluation which could include an on-site during which OFCCP would examine employment policies and records and interview employees. The purpose of such an evaluation is to assess compliance with EEO and affirmative action obligation, and to provide the contractor with technical assistance, including information related to the obligations and resources available. For construction contractors this is the notice of the specific affirmative action provisions required of all Federal construction contractors. This notice includes the goals for the geographic area in which the project is located. The affirmative action compliance provision ensures that contractors are aware of the obligations of nondiscrimination, the outreach, recruiting, training, and record-keeping obligations, as well as the goals for the project. It also includes the notification that when awarded, the contractor is required to notify OFCCP of subcontracts in excess of $10,000.
So where would you find the goals for construction projects? Construction goals are posted on the OFCCP website. As a reminder, the construction goals are to be incorporated into the contract and subcontract. These are utilization goals that focused on the construction traits. The goal for women is 6.9% of the hours worked, and the goal for minorities varies by geographic area. If you have questions related to the appropriate goal for a particular area, please contact the regional office where the work is being performed. Agencies are required to ensure prospective contractor certified compliance. The prospective contractor will certify whether or not they participated in previous a Federal contract or subcontract. In addition, the prospective contractors are required to state at the outset of the negotiations for the contract or at bid opening whether they have developed a written affirmative action program and has such a document on file at each of its establishments. In addition, they must state whether they have filed an EEO-1 report with the joint committee. The attestations and certifications found in the system for reward management, also known as SAM, will show you if the contractor has certified the development of an AAP, had previous contracts, or filed an EEO-1 report. To certify submission of the VETS-4212 report, formerly the VETS-100 or VETS-100A, a Contracting Officer must query the Department of Labor's VETS-100 database.
So, you can see on the screen the SAM information. When looking at prospective contractors it is important to review the FAR Sections 52.222-22, which addresses previous contracts and compliance reports. FAR 52.222-25 addresses affirmative action compliance. In these sections you will find the certifications and attestations. You will probably recognize this screenshot from the website for the System for Award Management. What resources are available to a Contracting Officer if a prospective contractor has a question about their obligations? Resources available include the OFCCP website, where a prospective contractor can find information on requirements associated with Federal contracting and subcontracting, including frequently asked questions, training webinars, information for small and new contractors, and brochures. In addition, the website includes searchable databases of community-based organizations capable of referring qualified individuals with disabilities, protected veterans, women, and minorities. OFCCP has a help desk available to the public where prospective contractors can call or e-mail for assistance. Additional resources include technical assistance and presentations at OFCCP's local district offices. These offices offer seminars, or prospective contractors can request additional help.
Contracting Officers must be sure that the contractor or subcontractor receiving the award is eligible. In fact, the regulations are specific, that no contract or modification involving a new acquisition should be entered into, and no subcontract should be approved by a Contracting Officer with a person who has been found ineligible by OFCCP 's Director for reasons of noncompliance with the requirements of Executive Order section 503 and VEVRAA. Eligibility can be determined through SAM. This list includes businesses that have been debarred from receiving Federal money for not complying with the requirements and obligations associated with Federal contracting. In addition, Contracting Officers must make certain that the manner in which the contract is written does not circumvent the requirements of the Executive Order Section 503 and VEVRAA. Prior to the awarding of a contract of $10 million or more, agencies are required to get EEO clearance from OFCCP. This clearance is now required by all three of the laws OFCCP enforces. The requirement includes contracts for indefinite quantities and modifications of existing contracts for a new effort that would constitute a contract award. Contracting Officers are also required to request pre-award clearances for first-tier subcontractors of $10 million or more. Again, the request for pre-award clearance is required under all three of the laws enforced by OFCCP. Before we discuss the process for requesting pre-award clearances, we will review the exceptions. The one exception to the request for a pre-award clearance is if the specific proposed contractor is listed in the OFCCPs national pre-award registry on our website. Melissa? 
MS: Thank you. This is a searchable database of contractors that have undergone a compliance evaluation and received a notice of compliance within the last 24 month period. If the prospective contractor is on the list, then you would document the registry review in your contract file. When determining whether or not the prospective contractor is clear, remember that the clearance is for a specific contractor's facility. If the contractor's facility you are looking for is not found on the registry, then you will need to contact the OFCCP pre-award monitor in the regional office where the contract will be performed. If you do not know who to contact, you can contact the OFCCP national office. 
HN: What about option year contracts? If the initial award is less than $10 million, but the award's option year could potentially meet the $10 million threshold, is pre-award clearance required? Yes. Consider the total value of the contract, including any options to determine the $10 million threshold. 
MS: Contractors are encouraged to submit pre-award clearances at least 30 days before the proposed award date. The request for EEO pre-award clearances can be sent by e-mail to the regional office where the contract will be performed. The e-mail addresses for each region are listed on our website. In the request, you are required to provide the following information: name, address, point of contact and telephone number of the proposed contractor; name, address, point of contact and telephone number of each proposed subcontractor, with subcontracts estimated at $10 million or more; the anticipated date of the award, information regarding whether the contractors or subcontractors have previously held any government contracts or subcontracts; the place or places of performance, the estimated dollar amount of the contract and subcontract if known. OFCCP has 15 days from receiving the clearance request to inform the awarding agency of its intent to conduct a pre-award compliance evaluation. If the awarding agency is not informed, it may proceed with the award. If OFCCP states it will perform an evaluation, it is allowed an additional 20 days to do so.
Which regional office should I send the pre-award clearance request to? The answer to that question is -- it depends. If the place of performance is known and it is a single place of performance, the pre-award clearance request should be sent to the regional office that covers the place of performance. If there are multiple places of performance crossing regions, the pre-award clearance request should go to the regional office where the contractor's corporate headquarters is located. If you have additional questions about specific pre-award requests, we encourage you to follow up with the regional office where you made the request. 
HN: Once a contractor is selected, Contracting Officers are responsible for several significant actions related to EEO and affirmative action. These are: incorporating the equal employment opportunity clauses into the contracts; providing the contractor with access to the appropriate employee notices; referring inquiries and complaints to OFCCP; and notifying OFCCP with construction contract awards. Over the next several slides we will review each of these obligations with you. Each of OFCCP's laws includes an equal opportunity clause, or EEO clause. These clauses can be incorporated individually into covered contracts and subcontracts, or combined and incorporated. The clauses are important, as it sets forth for the contractors and subcontractors the requirements and obligations related to Federal contracting and subcontracting. The clauses prohibit discrimination, require affirmative action, and requires that notice be given to employees, unions, and subcontractors. The clauses also provide OFCCP access to the contractor facility, worksite in the case of construction, and clearly state that the contractor may not enter into a subcontract with a debarred contractor. As we mentioned previously, the EO clauses were updated by Section 503 in the Federal rules, as well as by the recent amendments to the Executive Order 11246. On the slide is an example of a combined EO clause. The revised Section 503 in Federal regulations require more information, specifying that the contractor is an equal opportunity employer of protected veterans and individuals with disabilities. It is a clear message that lets contractors, subcontractors, vendors, and suppliers know that they may now have requirements if they meet OFCCP thresholds. In addition, this clause includes the most recent amendment to the Executive Order, which added sexual orientation and gender identity to the protected bases. This example can be found on the OFCCP website. Check the FAQ sections, frequently asked questions. 
MS: The EO clauses indicate that the contracting officer will provide the contractor with a notice to post. The notice is the "EEO is the Law" poster. This poster can be found on the OFCCP website or on the EEOC website in a printable format. A supplement to the poster is also available. The poster notifies employees and applicants that the employer is a Federal contractor and it advises them of their rights. Another obligation of contracting offices is the referral of complaints. Complaints received by the Contracting Officer alleging a violation of the requirements of any of the laws that OFCCP enforces should be referred immediately to the OFCCP regional office. The complainant shall be advised in writing of this referral. The contractor that is the subject of the complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that a complaint was received. Similarly, inquiries from labor unions regarding the revision of a collective bargaining agreement in order to comply with any of the OFCCP laws should be referred to the regional office nearest the place of performance. The incorporation of the EO clauses, EEO is the law, and the referral of inquiries and complaints applies to all Federal contractors and subcontractors. The notification of the award of construction contracts and subcontracts in excess of $10,000 is unique to construction contracts. Generally, construction contracts are contracts for mitigation, remediation, construction, or rehabilitation of an existing structure. When making such an award, written notice must be given to the appropriate OFCCP regional office within 10 working days of the award of the contract or subcontract of $10,000 or more subject to affirmative action requirements. This notification of construction award should include: name, address, telephone number of the contractor, the employer identification number, the dollar amount of the contract, the contract number, the estimated starting and completion dates, geographical areas in which the work shall be performed. This concludes the formal portion of our training on EEO responsibilities for Federal procurement officers. The key takeaways are: as a Contracting Officer you play a significant role in ensuring that Federal contractors are aware of their equal employment opportunity and affirmative action obligations. Your responsibilities are important at the solicitation, pre-award, and award of the contract. It is very important that the EO clause you are using is up-to-date and is incorporated into all covered Federal contracts and subcontracts. Contracting Officers must check the pre-award registry and SAM for contracts that meet the threshold. You must also ensure that contractors receive all of the support and tools, such as EEO posters and clauses and et cetera, to ensure their success. OFCCP has resources available for prospective contractors.
JA: We certainly appreciate these dedicated professionals who have taken time out of their day to guide us on the EEO responsibilities of Federal procurement officers. We certainly hope that you found today's seminar beneficial, as we are sure it gives us a greater appreciation for what we need to be aware of in our procurement actions. Stay tuned as we take a five-minute break. After, we will return with Brenda Williams-Stewart to answer a few of your questions. . 
Welcome back to the live question and answers section, with representatives from the Department of Labor's Office of Federal Contract Compliance Programs. We have a number of fantastic questions in search of answers. So let's begin. 
HN: Melissa, Do you want to take this one? 
MS: Yes, I will take the first question. If the contractor is new and has never developed an AAP, should we refer them to a local OFCCP office? There are several places that you can refer a new contractor. You can refer them to the OFCCP website, where there are FAQs, training webinars, and information for small and new contractors. You can also refer them to a local OFCCP office for further compliance assistance.
OK, another question -- just to clarify, for construction contractors, what is the threshold dollar amount that Contracting Officers should look for when giving notice to OFCCP? The answer is $10,000. That is for construction contractors.
The next question, continuing with construction contractors -- what does a construction contractor do when the work is taking place at different locations? Must they have different minority goals for each location? The answer is that the minority goals are dependent upon geographical location, so yes, they vary by geographic location. The goal for females for construction contractors is 6.9%. 
HN: So, before I answer question number four, which is what happens if we find the construction contractor has entered into a subcontract prior to notifying us, I would like to thank all of the procurement officials who are online now for all your hard work. Without your help, and submitting pre-award clearances, OFCCP would not have the information available for us to continue enforcement of equal opportunity provisions. With that, I will answer the question for question number four. So, the question assumes that the prime contractor would already have in place a subcontract. I think that what the question should say is that if the construction contractor is about ready to award a subcontract, because a lot of times the contractor will not award a subcontract until it is contingent on the actual award, the actual signing by the Contracting Officer of the document, making the award to the prime contractor. When that happens, then their obligations on the part of the contractor to notify OFCCP--I should say, notify the Contracting Officer of who all the subs are. In the context of a construction contract, we may already have this information based on, if its construction, I would presume the data, that the Contracting Officer would have would be the invitation for bid documents, which would identify all the subcontractors. If that is the case, OFCCP would then reach out and do an analysis of both the construction contractors and subcontractors . Any additional comments, Melissa, on that point? 
MS: No. 
HN: Alright, let's go to the next question.
MS: I will take this one. If a Contracting Officer does not, for various reasons, meet the 30 day window, can we request an expedited pre-award clearance? We really do not have any processes for expedited pre-award clearances, but usually in practice we can clear them pretty quickly within a couple of days to one week. Keep in mind, if OFCCP decides to do a compliance review, we have an additional 20 days to do that. So, that might play into the 30 day window. 
HN: Next question? 
MS: Yes, next question. Can we award the contract on the 16th day if we hear nothing from OFCCP? Yes, you can. OFCCP has 15 days to respond after we receive the pre-award request. If OFCCP is silent, the Contracting Officer can assume it has cleared. Next question? 
HN: Let's see. With respect to question number seven, if I get a call from my subcontractor or employee indicating discrimination is going on, is my first step contacting OFCCP or the unions? With respect to question number seven, if the Contracting Officer gets notice of some discrimination going on at the contract site, they should contact OFCCP, and I'll turn it over to Melissa in order to give out the details of how and where to do that. 
MS: We had it on slide, I think it was 37. You, the Contracting Officer, should give the complainant notice in writing of the referral to OFCCP. The contractor that is subject to the complaint should not be advised in any manner or reason of the complainant's name or nature of the complaint. For unions, if you get notifications or inquiries from unions regarding their bargaining agreements, you also need to send those to OFCCP. They need to be sent to your OFCCP regional office. That was earlier in the presentation, the different slides, we have six regional offices. Dallas, San Francisco, Philadelphia, New York, Atlanta, and San Francisco. 
HN: Next slide? I think that this one is yours, Melissa. 
MS: What is the information that is submitted for notification of a construction award does not give the information on worksites where work will be performed since they work on multiple sites? We also have another question on this, and its called the place of performance. When you are looking for notification or doing a pre-award request, either one, you need to send it to the regional office where the place of performance is located. If there are multiple places of performance, that is the one where you can send it to where the corporate headquarters is located. If you have multiple places of performance, do not be surprised if you get multiple regions responding to your pre-award clearance. If you have one in the Chicago area and one in the Dallas area, both regional offices might respond, even though you sent it to just one region. 
HN: Next slide? Question number nine, can you give me some more information about changes to the VETS 100 database? So, starting August 1st of this year, the VETS 100 will be replaced by the vets 4212 form. If you go to, and look under the agency of VETS, you will find the information on how to fill out that form. It will be slightly different from what you are accustomed to, but the information is noted there.
MS: This is the one that I kind of just answered regarding slide 30, can you give us some scenarios about which regional office I should send the pre-award clearance to? The pre-award clearance goes to the office where the place of performance is; if you have multiple places of performance, here again you can send it to the office where the corporate headquarters is located for the contractor. There again, you might get multiple responses from different offices for your request.
HN: With respect to question number 11, with respect to inquiries from unions referenced in slide 38, why would the unions be interested in revisions to the collective bargaining unit in order to comply with OFCCP laws? One reason the unions would be interested in revisions to the collective bargaining agreement is they may impact the wages of their members. It may also impact the way they handle seniority, which is a big issue for unions. That's why they might be reaching out and asking about who is the new contractor, what are the obligations of the contractor to continue on with the collective bargaining agreement. That is a separate discussion, but I can tell you that normally where you have an old contractor being replaced a new contractor, the new contractor would be obligated to follow the collective bargaining agreement of the old contractor until negotiations have occurred and a new CBA is in effect. Next question? 
MS: I want to add on the collective bargaining agreement, there is an EO cause. We've made some changes updates that we've discussed in the presentation to the EO clause. That would also have to be updated in the collective bargaining agreement. 
HN: Next slide. Question number 12, with respect to FOIA, what would OFCCP do if they get a FOIA from a contractor that is interested in information related to the pre-award process? Let me give you a little bit of background about that. There are times when, say, the incumbent contractor did not get the follow-on contract. They know another contractor is going to be getting this contract. There are situations where the incumbent contractor would then submit a FOIA to find out who the awardee is prior to award. As many procurement officials know, it would be inappropriate, under FAR regulations, for us to release that information. We would not provide that information as to whom the perspective awardee is under FOIA. We would not give that information out to anyone until the award has been made, in which case the Contracting Officer has an obligation to notify the disappointed offerors or bidders of who the awardee is. Next slide. I think that one is yours, Melissa. 
MS: Did you say there was an updated equal opportunity is included in the law poster that we should be using for contracts? So the "EEO is the Law" poster that is also done by OFCCP and EEOC, and yes, there is a supplement on both OFCCP's website and EEOC's website, in addition to a printed version of the poster. Next slide. 
HN: Next slide. We have here a couple of questions that we've gotten that aren't in the slides that we have gotten from the public. We will go through those and find out if additional questions are being raised by the public. The first question that we have is, could a given contract already in place -- hold on one second -- already in place be canceled because of  a debarment? I would say, for that particular question, we would get a pre-award clearance of the contract, and when we are reviewing that particular question, we would see that the awardee is debarred. We would refer that information back to the Contracting Officer. I'm sure that the Contracting Officer would do an independent analysis of that. But that would prohibit award of the contract. Both the procurement officials and OFCCP rely on the SAM database for us to know whether a particular contractor is debarred. For those listening in today, debarment not only impacts contractors from the perspective of the FAR, but it also impacts OFCCP because we have a separate authority to debar contractors, and we have a few debarments in place now.
The next question that we have is what are the consequences for not submitting a pre-award clearance or not waiting for a pre-award clearance? There are a couple of different scenarios, but the one that comes to mind, right off the top of my head, is a situation where there has been no pre-award clearance submitted, and an award is made by a Contracting Officer. There can be a situation where the incumbent contractor may not get the follow-on contract. In that situation I have known from previous experience that it is not uncommon for the incumbent contractor to file a bid protest. What that means is that the incumbent contractor would sue the government either at the Government Accountability Office or at the Court of Federal Claims, alleging improprieties. A strong legal argument could be made that not following the pre-award clearance would make the government liable. It would make the agency liable to attorneys fees and costs, if it is a small business. It would also preclude the award of the contract. Either the Government Accountability Office or the judge at the Court of Federal Claims would direct the government agency to review the award and do an analysis and do another award based on the impropriety. Are there any other questions? Let me take a look here. All right. Thank you so much. 
JA: Don't forget, the Federal Acquisition Institute has recorded today's seminar, and the video, along with the presentation materials you saw today will be posted in the Video Library on You should be able to access these items in a week or so. On behalf of the Federal Acquisition Institute, thank you once again for joining us.


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