FEDERAL-AID POLICY GUIDE
September 30, 1992, Transmittal 5
NS 23 CFR 230D
- CONTRACT COMPLIANCE-OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP) (23 CFR 230.415)
- Contract compliance-FHWA and State Enforcement of OFCCP Required
Goals and Timetables in contracts. FHWA and State enforcement of minority
and female goals and timetables rests on the decision in the case of the Trustees
of Tufts University versus Volpe Construction Company, Inc. in
which it was found that parties to contract have the right and obligation
to meet or enforce the provisions of the contract as appropriate, including
EEO provisions of E.O. 11246 which are required to be included. States have
both the authority and obligation to ensure compliance with EEO contract provisions.
This applies only to federally assisted highway construction contracts.
- OFCCP Reporting Requirements, 41 CFR 60-4.2. On June 3, 1982,
the FHWA reached an agreement with OFCCP to accept quarterly updated lists
of active federally assisted prime contracts in lieu of reports by
States of nonexempt contract awards. Prime contractors are required by the
standard EEO provisions to report to OFCCP subcontract awards in excess of $10,000.
(1) The requirement for contractors to submit the subcontracting
information is between the contractors and OFCCP. The OFCCP is required
to work through funding agencies and recipients in obtaining compliance
with Executive Order 11246 in instances where determinations of noncompliance are made.
(2) The standard EEO provisions do not require submission of
subcontracting notices through the contracting (State) or funding (FHWA)
agencies. The FHWA is obligated to cooperate with OFCCP in its efforts to obtain compliance.
- OFCCP Construction Contractors' Affirmative Action Requirements.
FHWA interpretation of 41 CFR 60-4 as amended December 30, 1980:
(1) Construction contractors' reporting requirementsare to continue
as before the November 3, 1980, effective date of the OFCCP amendments to
41 CFR 60-4. These reporting requirements are "Under existing OFCCP
practice, construction contractors have generally been submitting Forms
CC-257 showing minority utilization only for construction work performed
in geographic areas in which they hold Federal or federally assisted construction
contracts and in which there has been a minority goal applicable."
(2) Increased reporting requirements (beyond those required prior
to November 3, 1980) are stayed pending clearance by the Office of Management and Budget.
(3) OFCCP extended the 6.9 percent goal for female utilization.
- CLARIFICATION OF CONTRACT COMPLIANCE RESPONSIBILITIES (23 CFR
230.405). The FHWA and State highway agencies (SHA) EEO compliance personnel
and Federal-aid highway contractors retain responsibilities under 23 U.S.C.
140 and E.O. 11246 for contract compliance.
- The SHAs will implement an EEO contract compliance program pursuant to
23 U.S.C. When appropriate, necessary sanctions under State contract administration
procedures should be imposed. In instances where a State program is found
to be inadequate, FHWA regional civil rights officers will intervene to obtain compliance.
- The FHWA regional civil rights staffs should work with State counterparts
to establish annual or seasonal compliance review goals for the SHA. The FHWA
civil rights staff should participate in or conduct a compliance review in
each State to ascertain the effectiveness of State compliance review programs.
- In areas where the OFCCP reviews highway contractors, the SHA may opt
to accept theses reviews as sufficient to meet 23 U.S.C. EEO requirements.
Where this option is exercised and State or FHWA staffs did not participate
in a joint review with OFCCP, reports should be analyzed to determine whether
the need exists to conduct a supplemental inspection or review to obtain information
on contractors' training and MBE efforts. The FHWA and SHAs are required by
41 CFR 60 to cooperate with the Department of Labor (DOL), OFCCP. Conversely,
DOL/OFCCP is required by 23 U.S.C. 140 to provide information and assistance to DOT/FHWA.
- The SHAs may require contractor submission of theMonthly Employment Utilization
Report (SF-257) reflecting specific area or statewide employment data. In
any event, contractors will continue to be required to submit annual PR-1391 reports.
- EEO COMPLIANCE DETERMINATIONS MADE UNDER THE AUTHORITY OF EXECUTIVE ORDER 11246, AS AMENDED (23 CFR 230.405
- A State's EEO conciliation agreement/voluntary corrective action form
referenced Office of Federal Contract Compliance Programs (OFCCP) as party
to the agreement. The form also used the authority of Executive Order (E.O.)
11246 as a basis for the determination of compliance or noncompliance. The
Director, OFCCP, directed that neither the FHWA nor the States have authority
to review or monitor the E.O compliance or Federal or federally assisted contractors.
It is inappropriate to cite E.O. 11246 as an authority for State action. However,
a State, as party to a contract, has the right and obligation to enforce all
of the provisions of the contract (including EEO provisions based
on E.O. 11246 which are required to be included).
- The State's, FHWA's, and OFCCP's responsibilities are set out in the
following policy statements:
(1) 8/27/80 - Proposed Changes to Federal-aid Highway Contract EEO Requirements and Compliance Review Program
(2) 11/6/80 - Contract Compliance - FHWA and State Enforcement of OFCCP Required Goals and Timetables in Contracts
(3) 12/11/80 - Clarification of Contract Compliance Responsibilities
- The reviews of State EEO/Contract Compliance Program implementation must
include a review of all standard State forms or other documents used in conciliation
agreements or voluntary corrective action plans and related actions. The State
must be directed to remove any reference to the E.O. as an authority for its action.
- The contract provisions in Form PR-1273 contain those required by E.O.
11246, which are to be included in contracts and bid documents
and which may be incorporated by reference.
- SECTION 122, SURFACE TRANSPORTATION AND UNIFORM RELOCATION ASSISTANCE
ACT (STURAA) OF 1987--INDIAN EMPLOYMENT PREFERENCE (23 CFR 230.403).
The Federal HighwayAdministrator in May 1987 advised the regions of the enactment
of an Indian employment preference provision as a part of the STURAA of 1987.
It is the intent of this supplement to provide clarification of this provision.
- Enactment of the STURAA of 1987 which includes Section 122, now concludes
any debate regarding the applicability of Indian employment preference on
Federal-aid highway projects. Simply stated, Section 122 amends the antidiscrimination
provisions contained in 23 U.S.C. 140 to make them consistent with certain
provisions of Title VII of the Civil Rights Act of 1964, and thus Indian employment
preference, as later defined in this supplement, States. Accordingly, the
FHWA field offices should encourage States to meet with Indian tribes and
their Tribal Employment Rights Offices (TERO) to develop contract provisions
for Federal-aid highway projects which will promote employment opportunities for Indians.
- States and tribal representatives should identify employment opportunities
in advance on appropriate Federal-aid projects. They should determine reasonable
overall employment goals for Indians, establish clearly the acceptable requirements
which can be used to achieve such goals, and make them an integral part of
contract and proposal documents.
- To develop a workable and acceptable project Indian employment goals,
the State should confer with tribal representatives during project development.
In setting the goal, consideration should be given to the availability of
skilled and unskilled Indian resources, the type of contract, and the potential
employment requirements of the contractor in addition to its core-crew. Once
established, the goal should only be changed by the State after consultation
with the Indian tribal representative and the contractor and afterconsideration
of good faith efforts to achieve the original goal. Sanctions for failure
to meet the employment goal should be determined in advance and be made a
part of the contract to facilitate enforcement.
- In order to assure a consistent application of Section 122, several significant items must be clarified:
(1) Federal-aid projects eligible for Indian employment preference
consideration are those projects which are (a) otherwise eligible for funding
in whole or in part with Federal-aid highway funds and (b) located on roads
within or providing access to an Indian reservation or other Indian lands
as defined under the term "Indian reservation roads" in Section
101 of Title 23 and regulations issued thereunder. The terminus of a road
"providing access to" is that point at which it intersects with
a road functionally classified as a collector or higher classification (outside
the reservation boundary) in both urban and rural areas. In the case of
an Interstate highway, the terminus is the first interchange outside the reservation.
(2) Indians eligible for employment preference are those living
on or near a reservation or Indian lands (as defined above). Indian preference
is to be applied without regard to tribal affiliation or place of enrollment.
Indians already hired by a contractor should be included as part of the
contractor's core-crew. In no instance should a contractor be compelled
to layoff or terminate a core-crew employee to meet a preference goal.
(3) TERO - many tribes have established a tax which is applied
to contracts for projects performed on the reservation. The proceeds are
used by the tribes to fund job referral, counseling, liaison, and other
services relating to the employment of Indians. It has been FHWA's longstanding
policy to participate in State and local taxes which do not discriminate
or otherwise single out Federal-aid highway construction contracts for special
or different tax treatment. Thus, if the TERO tax rate on Federal-aid highway
contracts is the same as imposed on other projects, such costs are eligible
for Federal-aid reimbursement.
(4) Indian Contractor Preference - the language of Section 122
and the legislative history make it clear that the singular intent of the
new amendment is to permit and encourage Indian preference in employment
on Indian reservation roads. The only contracting preference which can be
recognized in a Federal-aid highway contract is that authorized by disadvantaged
business enterprise (DBE) statutory provisions (Section 105(f) of the 1982
Surface Transportation Assistance Act and issued thereunder. Under DBE regulations,
Native Americans, which include American Indians, are rebuttably presumed
to be socially and economically disadvantaged. Thus, Indian owned businesses
are eligible for DBE certification by the State and once certified may be
given equal preference with other certified DBE's to fulfill goals on Federal-aid
projects. The availability of certified Indian owned businesses should be
considered in setting contract DBE goals.
- The issues addressed herein, coupled with the information contained on
earlier documents, should provide the guidance necessary to assure that FHWA
policy relative to Indian employment preference is applied uniformly within
the parameters of Section 122. States and Indian tribal governments should
be made aware of this additional policy guidance.
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