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June 18, 2006 Web Conference
Contract Compliance
Questions and Answers- Chat Room

During the week of July 17, 2006, members of the Resource Center's Civil Rights Technical Service Team presented a series of three National Web Conferences. The series of highly demanded Sessions included Contract Compliance, State Internal EEO/AA and Disadvantaged Business Enterprise (DBE). Members of the Civil Rights Community requested that the Questions and Answers (Q&A) be posted. In response to those requests, please find below the Q&As for each of the three Web Conferences broken down by Session.

Question 1: How do Local Area Preferences fit into Affirmative Action?

Answer: FHWA does not allow our Federal-aid contractors to specify participation of local workers because such labor area preferences would violate the competitive bidding requirements of 23 U.S.C. 112 and its implementing regulation, 23 CFR §635.117(b), which prohibits discrimination against the employment of non-local labor. 23 CFR S §635.117(b), states:

"No procedures or requirement shall be imposed by any State
which will operate to discriminate against the employment of labor
from any other State, possession or territory of the United States, in
the construction of a Federal-aid project."
There are three (3) exceptions that allows local preferences on Federal-aid highway projects based on explicit statutory authority as it exists for the employment of Indians living on or near a reservation - 23 U.S.C. § 140(d); for Appalachian residents on projects in that region - 23 CFR Part §633; and for contracting under the Federal Disadvantaged Business Enterprise (DBE) program - 49 CFR §26.7 and 26.13. Also, FHWA 1273-Required Contract Provisions Federal-Aid Construction Contracts indicated:
Selection of Labor: During the performance of this contract, the contractor shall not:
a. discriminate against labor from any other State, possession, or territory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or

b. employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole, supervised release, or probation.

References: 23 USC §140 (d)
49 CFR 26.7 and 26.13
23 CFR 633 Appendix B to Subpart B of Part 633 Section II Employment Preference
FHWA 1273

Question 2: What Is OFCCP?

Answer: The Office of Federal Contract Compliance Programs (OFCCP) is part of the U.S. Department of Labor's Employment Standards Administration. OFCCP is responsible for ensuring that Federal Contractors comply with their nondiscrimination and affirmative action contractual obligations. This mission is based on the underlying principle that employment opportunities generated by Federal dollars should be available to all Americans on an equitable and fair basis.

OFCCP administers and enforces three authorities that require equal employment opportunity: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973 as amended, and the Vietnam Era Veteran's Readjustment Assistance Act of 1974, as amended, 38 USC § 4212. These authorities prohibit Federal contractors and subcontractors from discriminating based on race, color, religion, sex, national origin, disability and protected veteran status. They also require Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity in their employment processes.
References: 41 CFR § 60

Question 3: Do we see possible changes to the “OFCCP's minority & female Utilization goals?

Answer: The answer is, we do not know. Please keep in mind that FHWA nor do STAs have independent authority to enforce EO 11246.
Reference: FHWA Order 4710.8.

Question 4: Is the 100% draw down for training available for the highway contractors?

Answer: Yes, 100% Federal funding if the core program funds are used for training, education, or workforce development purposes, including “pipeline activities”. If used for these purposes, it is not necessary for the State to match the Federal funds.
Reference: Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Section 5204(e)-Surface Transportation Workforce Development Training and Education

Question 5: Does FHWA require STA's to review a contractor's individual employment selections?

Answer: No, according to the specific EEO responsibilities, the contractor is responsible for the following:

Personnel Actions. Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, or national origin. The following procedures shall be followed:

The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will promptly
take corrective action. If the review indicates that the discrimination
may extend beyond the actions reviewed, such corrective action shall
include all affected persons.

The contractor will keep such records as are necessary to determine compliance with the contractor's equal employment opportunity obligations. The records kept by the contractor
will be designed to indicate:

(1) The number of minority and nonminority group members and women
employed in each work classification on the project.

(2) The progress and efforts being made in cooperation with unions
to increase employment opportunities for minorities and women
(applicable only to contractors who rely in whole or in part on unions
as a source of their work force),

(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minority and female employees, and

(4) The progress and efforts being made in securing the services of
minority group subcontractors or subcontractors with meaningful minority and female representation among their employees.

Reference: 23 CFR Appendix A to Subpart A of Part 230- Special Provisions, 6, 6 (c)
and 10 (1-4)

Question 6: Has FHWA defined the term “active contractor”?

Answer: No. FHWA Form 1273 uses the term “active contractor” as stated below:

“EEO Officer: The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so.”
Also, the regulations refers to the Compliance Specialist notifying the contractor that for a project review, the prime contractor shall be held responsible for ensuring that all ‘active” subcontractors are present at the meeting and have supplied the documentation listed in
Sec. 230.409(c)(3) (compliance review notification).

Reference: Required Contract Provisions Federal-Aid Construction Contracts, FHWA Form 1273, II. (2.)
23 CFR Part 230.409 (c ) (4)

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