CCR Standard Operating Procedure Manual
POLICY, PURPOSE and SCOPE 1
AUTHORITY 1
DEFINITIONS 2
RESPONSIBILITIES OF THE EQUAL EMPLOYMENT OPPORTUNITY CONTRACT COORDINATORS 8
PRECONSTRUCTION CONFERENCES 8
ON-SITE MONITORING 10
INCIDENT REPORT AND COMPLAINT INTAKE FORM (CR-4 and CR-5) 11
ODOT’s ON-THE-JOB TRAINING PROGRAM 13
SUBCONTRACTOR NOTIFICATION 16
FORMS PR-1391 and PR-1392 16
COREP User’s Guide 17
CONTRACT COMPLIANCE REVIEW PROCEDURES 23
Census Data Website Links 31
CONDUCTING A FORMAL EEO CONTRACT COMPLIANCE REVIEW 38
Sample Corrective Action Plan 44
RULES AND REGULATIONS ON EQUAL EMPLOYMENT OPPORTUNITY 45
CONTRACT COMPLIANCE REVIEW NOTEBOOK 50
Instructions for completing the AAEVAL 51
COMMERCIALLY USEFUL FUNCTION (CUF) MONITORING 53
COUNTING DBE PARTICIPATION 54
Guidance Concerning Good Faith Efforts 54
Good Faith Efforts When A DBE Is Replaced On a Contract 55
I. POLICY, PURPOSE and SCOPE
It is the policy of the Ohio Department of Transportation to require full utilization of all opportunities to assure the increased participation of minorities, women and disadvantaged persons in all phases of the highway construction industry.
The purpose of this Standard Operating Procedure (SOP) is to outline the policies, procedures and guidelines relative to the implementation of an equal employment opportunity program on ODOT state and federally funded highway construction contracts; establish a uniform procedure for administering Title VII Contract Compliance Reviews (CCR); and the Voluntary On-the Job Training Program.
Primary users of the SOP are all ODOT personnel working in the area of Civil Rights, Affirmative Action and Contract Compliance.
II. OBJECTIVE
The primary objective is to standardize the evaluation of the contractors’ affirmative action efforts to comply with the Code of Federal Regulations (CFR), Title 23, Part 230, and Title 23: Highways, Chapter 1: Sub-chapter C-Civil Rights, Part 200 Title VI.
III. APPLICABILITY
This procedure is applicable to all Federal-Aid Highway construction projects, Appalachian Highway construction projects, and other State supervised cooperative highway construction projects. This SOP is to be adhered to by all the Ohio Department of Transportation (ODOT) contractors and the ODOT personnel responsible for contract compliance.
IV. AUTHORITY
The authority for the administration of the contract compliance program is governed by the following Federal and State Codes and Executive Orders.
* Ohio Administrative Code, 123:2 “Division of EEO for Construction,” Chapters 1 through 11 (Duties, Affirmative Action program, Compliance Reviews, Hearing, Monthly Reports and Certificate of Compliance)
* Final Order dated November 30, 1973, established new State EEO Bid Conditions for Metropolitan Statistical Area “MSA” (State contracts only).
* Ohio Administrative Code, 123:2-3-05 “Required Utilization Analysis and Goals”
* United States Code, Title 23: Highways, Chapter 1: Federal-Aid Highways, Section 140 (a) Equal Employment Opportunity.
* Code of Federal Regulations, Title 23: Highways, Part 230: External Programs, Subpart A: Equal Opportunity of Federal and Federal-Aid Construction Contracts (including supportive services).
* Code of Federal Regulations, Title 23-Highways, Chapter 1: Sub-chapter C-Civil rights, Part 200-Title VI, Program and Related Statutes–Implementation and Review Procedure.
* Code of Federal Regulations, Title 23-Highways, Chapter 1: Part 230-External Programs, Subpart D–Construction Contract Equal Opportunity Compliance Procedures.
* 29 CFR
* 49 CFR, Part 26
* FHWA Federal Circular PR 1273 & PR 1316
V. DEFINITIONS
Administering Agency
Any department, agency and establishment in the executive branch of government, including and wholly owned Government corporation, which administers a program involving Federally and State assisted construction contracts.
Affirmative Action
The efforts exerted toward achieving equal opportunity through positive, aggressive, and continuous results oriented measures to correct past and present discriminatory practices and their efforts on the conditions and privileges of employment. These measures include but are not limited to recruitment, hiring, promotion, upgrading, demotion, transfer, termination, compensation, and training.
A good faith effort to eliminate past and present discrimination in all Federally assisted programs, and to ensure future nondiscriminatory practices.
Apprentice
A person enrolled in a training program aimed at developing full journey-person status in the type of trade or job classification involved. In highway construction, an apprentice must be enrolled in a bona fide training program. Apprentices enrolled in these programs are certified as journey-workers after the successful completion of a predetermined number of hours of on-the-job training (OJT) and related theoretical in-class training.
Apprenticeship Program
A bona fide training program, registered with the Ohio State Apprenticeship Council, aimed at developing the skill level of a person until the person reaches full journey-person status (generally four years). The training includes both school and hands on study of the craft.
Apprentice Permit
"Apprentice permit" means a permit issued by the Union to authorize a person desiring to achieve journey-person status to obtain skilled craft experience under supervision of a full journey-person.
Area-wide Plans
An Affirmative Action plan to increase minority utilization of crafts in a specified geographical area pursuant to “Executive Order 11246" or taking the form of an “Imposed” Plan.
Bid Conditions
Contract provisions, which have been issued by the Ohio Department of Transportation, Office of Contracts.
Commercially Useful Function
A Disadvantaged Business Enterprise (DBE) performs a commercially useful function (CUF) when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF the DBE must also be responsible, with respect to material and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the materials and installing (where applicable) and paying for the material itself.
Compliance
The condition existing when a contractor has implemented all of the standards set forth in the applicable rules and regulations governing equal opportunity and affirmative action laws of State and Federal government.
The satisfactory condition existing when a recipient has effectively implemented all of the Title VII requirements or can demonstrate that every good faith effort toward achieving this end has been made.
Conciliation Agreement
Agreement arrived by the Reviewing agency and the contractor, which outlines steps the contractor will take to bring his/her firm into compliance.
Construction Work
The construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.
Contract
Any Federal or State assisted construction contract.
Contractor
Any person, corporation, partnership, or unincorporated association that holds a FHWA direct or Federally or State assisted construction contract or subcontract regardless of tier.
Contractors’ Workforce
All employees on the payroll of, and who are directly supervised by the contractor.
Corrective Action Plan
A contractor’s unequivocal written and signed commitment outlining actions taken or proposed within the time limits and goals, where appropriate to correct, compensate for, and remedy each violation of the equal opportunity requirements as specified in a list of deficiencies.
Disadvantaged Business Enterprise (DBE)
Small business as defined in “Appendix B” of Subpart D, Part 23, Title 49, Code of Federal Regulations, which is owned and controlled by persons who are citizens or lawful permanent residents of the United States, and who are members of a disadvantaged group including Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, and other individuals found on a case by case basis to be socially and economically disadvantaged.
TO VIEW THE COMPLETE LIST OF CERTIFIED DBEs, PLEASE GO TO THE FOLLOWING WEB-SITE:
Discrimination
A distinction in the treatment of a person based on race, color, religion, sex, national origin, age (40-70 years), or disability.
The act (or action) whether intentional or unintentional through which a person of the United States, solely because of race, color, religion, sex, or national origin, has been otherwise subjected to unequal treatment under any program or activity receiving financial assistance from the Federal Highway Administration under Title 23 U.S.C.
District Equal Employment Opportunity Contract Coordinator (DEEOCC)
A Federal or State employee regularly employed and experienced in civil rights policies, practices, procedures, and equal opportunity compliance review and evaluation functions.
Documentation
Those records and reports maintained by the contractor to verify claims relative to employees, payroll, subcontractors, etc.
Equal Employment Opportunity
The absence of partiality or distinction in employment treatment, so that the right of all persons to work and advance on the basis of merit, ability and potential is maintained.
Equal Opportunity Clause
The contract provisions set forth in CFR Chapter 60-1.4(a) or (b), as appropriate.
Equal Opportunity Compliance Review
An evaluation and determination on non-exempt direct Federal, Federal-Aid or State contractor, or sub-contractor’s compliance with equal opportunity requirements based on:
a) Project workforce - employees at the physical location of the construction activity.
b) Area workforce - employees at all Federal-Aid, Federal or non-Federal projects in a specific geographical area as determined under CFR 23; Part 230.409(b)(9).
c) Home office workforce - employees at the physical location of the corporation, company, or other ownership headquarters or regional managerial offices, including “white collar” personnel (managers, professional, technicians and clerical) and any maintenance of service personnel connected thereto.
Equal Opportunity Requirements
A general term used throughout this document to mean all contract provisions relative to equal employment opportunity (EEO), sub-contracting and training.
FHWA
Federal Highway Administration
Good Faith Effort Deficiency
A contractor may be found in noncompliance when compliance review findings indicate that good faith effort actions taken, or lack there of, by the contractor have not resulted in the employment of minorities and females in the workplace.
Good Faith Effort
Affirmative action measures designed to implement the established objectives of an Affirmative Action Plan.
Imposed Plan
An affirmative action requirement for a specified geographical area made mandatory by OFCCP, and in some areas by the courts.
Journeyman
A person who is capable of performing all the duties within a given job classification or craft.
Local Public Agency (LPA)
Any other State agency, local political subdivision, board, commission, or other governmental entity identified under paragraph C of section 5501.03 of the Ohio Revised Code (ORC) determined to be qualified to assume the administrative responsibilities for Ohio Department of Transportation (ODOT) improvements projects.
Minority
A person who is a citizen or lawful permanent resident of the United States, and who is Black, Hispanic, Pacific Islander, Asian American, Native American or Alaskan Native.
New Hires
First time employee with the contractor or a non salaried employee who has a break in service with the contractor. This does not apply to employees who have worked for the contractor the previous construction season. This definition is in effect through 12/31/07.
Effective 1/1/08 the New Hire Definition will be as follows:
Individual who has a break in service (not on an employer’s payroll) for a period of 60 days or longer and the person affected is not a salaried employee, but belongs to a union craft. If this person is rehired the following spring (construction industry), that person is to be considered a new hire even though the individual may have worked for the contractor the previous construction season or prior years. Individuals compensated for training or incidental work which does not cause a break in unemployment compensation, i.e., paid by voucher check or petty cash, are considered new hires if the individual’s break in service is 60 days or longer.
Noncompliance
The condition existing when a recipient of federal or state funds or a contractor working on a state or federally funded project has failed to show good faith efforts to implement the requirements of the equal employment opportunity and affirmative action laws.
A recipient who failed to meet prescribed requirements and has shown an apparent lack of good faith effort in implementing the requirements of Title VII.
On-The-Job-Training
A program that includes the training and upgrading of minorities and women toward journey-person status.
Paper Deficiency
Any deficiency which can be corrected and verified by the reviewer within 10 days of the Exit Conference (i.e., EOE tagline, EEO/Sexual Harassment policy corrections).
Permit Person
A person signed with the Union who receives full benefits, but is in pre full member status, earning journeyman’s wages working for a specific time period (generally 78 weeks) after which the permit person is sold full membership.
Persons/Protected Class
* Where designation of persons by race, color, national origin is required, the following designations ordinarily may be used: "Black Americans," which includes persons having origins in any of the Black racial groups of Africa;
* "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
* "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;
* "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;
* "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka.
Preconstruction Meeting (Precon)
This meeting attended by the Prime Contractor and ODOT personnel is for a discussion of the details on constructing the project, bid proposal, specifications, plans, method of payment, and the Prime Contractor’s progress schedule.
Recalls/Rehires
Individuals whose break in service from a contractor has been one season or less. This definition is in effect through 12/31/07 only.
Effective 1/1/08 the New Hire Definition will be as follows:
A recall or rehire is a non salaried employee whose break in service from a contractor has been 59 days or less.
Show-cause Notice
A written notification to a contractor, based on the determination of the reviewer (or in appropriate cases by a higher level authority), that the contractor is in noncompliance with the equal opportunity requirements. The notice informs the contractor of the specific basis for the determination and provides the opportunity with 30 days from the receipt to present an explanation as to why sanctions should not be imposed.
Trainee
A person who receives on-the-job training, whether through an apprenticeship program, or other programs approved or accepted by the Federal Highway Administration, and/or the appropriate State agency.
Unified Certification Program (UCP)
The UCP is a unified directory including all certified DBE firms who are available for the entire State of Ohio. The main advantages for the DBE firms are: one certification will enable them to be eligible to fulfill DBE goals set on any project with any governmental agency receiving Federal Transportation funding in Ohio; and the DBE firms will also have more visibility due to the unified state-wide directory.
VI. RESPONSIBILITIES OF THE EQUAL EMPLOYMENT OPPORTUNITY CONTRACT COORDINATORS
The DEEOCC is responsible for executing the enforcement/compliance activities associated with EEO on construction contracts. They participate in on-site inspections to determine contractor compliance under all relevant rules and regulations. They initiate and process documents on Contract Compliance/Affirmative Action, conducting interviews both on-site and in the contractor’s office. They attend and participate in Preconstruction, Progress and Contract Compliance review meetings. In conjunction with District, Central Office and FHWA Division personnel, the DEEOCC conducts Compliance Reviews, reviews EEO reports, monitors Disadvantaged Business Enterprise activities, prepares ODOT reports to FHWA, conducts investigations, and administers the External DBE Supportive Service Program. The DEEOCC attends courses on EEO programs and requirements. The DEEOCC attends workshops and uses contract documents, FHWA and State regulations, and related forms to coordinate and execute their responsibilities under the External Civil Rights Contract Compliance Program.
VII. SPECIFIC EQUAL EMPLOYMENT OPPORTUNITY RESPONSIBILITIES
The contractor and all his/her subcontractors holding subcontracts not including material suppliers, of $10,000 or more, will comply with the following minimum specific requirement activities of equal employment opportunity:
* The equal employment opportunity requirements of 23 CFR, Part 230, Subpart A.
* Special Provisions of FHWA PR 1273.
The contractor will include these requirements in every subcontract of $10,000 or more with such modification of language as is necessary to make them binding on the subcontractor.
VIII. PRECONSTRUCTION CONFERENCES
It is the District’s responsibility to ensure that EEO is made a part of the Preconstruction Conference and that all aspects of EEO, pertinent to the project, are covered. During the meeting, the following should be discussed and/or disseminated:
A. A summary of the EEO requirements as outlined in the contract.
B. All applicable EEO posters.
1. “Equal Employment is the Law” poster (Federal)
2. “Summary Provisions of Ohio Fair Employment Practices Law” poster (State)
NOTE: Both State and Federal posters are posted on federally funded projects. State EEO poster only is posted on projects solely funded by the State.
C. Form Federal Circular PR 1273 (for Federally funded projects).
D. Appendix A & B of the Ohio Bid Conditions (for State funded projects).
E. Contractor’s guidelines for participation in the ODOT OJT Program.
F. A sample Subcontractor notification letter outlining the contract EEO requirements.
H. Bulletin Board requirements.
Bulletin boards should be placed in a location easily accessible to both
the employee and the public and should include, but not be limited to the
following:
1. Contractor’s EEO Policy
2. Company EEO Officer’s name and phone number
3. EEO posters
4. Schedule of predetermined wage rates
NOTE: Mobile operations (asphalt paving, raised pavement markers, striping, etc.) may keep the bulletin board information in the foreman’s truck provided all of the employees are informed of the location and are given the opportunity to look at the contents without fear of reprisal.
See the following attachments:
Sample Federal Precon Packet:
Sample Federal Precon Letter
Sample Federal EEO Precon Presentation Sheet
FHWA Circular PR 1273
FHWA PR 1316
Sample Subcontractor Notification Letter
ODOT EEO Contact Information Sheet
Sample Recruitment Letter
OJT Information
Sample request letter from Contractor to US DOL OSAC
Blank CR-1
EEO Posters:
EEO is the Law
Summary Provisions of Ohio Fair Employment Practices Law
DBE Affidavit of Subcontractor Payment Form
Sample State Precon Packet:
Sample State Precon Letter
Sample State EEO Precon Presentation Sheet
Ohio EEO Bid Conditions
Sample Subcontractor’s Notification Letter
ODOT EEO Contact Information Sheet
Sample Recruitment Letter
OJT Information
Sample request letter from Contractor to US DOL OSAC
Blank CR-1
EEO Posters:
Summary Provisions of Ohio Fair Employment Practices Law
EDGE Affidavit of Subcontractor Payment Form
IX. ON-SITE MONITORING
A. PURPOSE
The purpose of on-site monitoring is to determine the contractor’s compliance with the contract’s affirmative action obligations. The DEEOCC has the primary responsibility of conducting on-site monitoring of active projects within the districts. (See attachment-On-Site Visit Report)
B. SAFETY RULES
The DEEOCC should follow the ODOT safety policy. Request this information prior to coming on-site.
C. HOW TO CONDUCT ON-SITE MONITORING
1. Visit the ODOT office trailer and request your name to be placed on the construction daily diary. If there is no trailer, report to the ODOT personnel on project site.
2. Verify that all bulletin board requirements are in place on the project and posted in an area readily accessible to present employees and applicants for employment. Please note findings on EEO Project On-Site Visit Report.
3. Verify that the EEO policy of the prime contractor is posted along with the EEO poster. The text of the EEO policy will be as required in the Special Provisions, or one that includes equivalent wording in addition to describing other general or specific procedures to implement equal opportunity. The DEEOCC must ensure that the company EEO Policy is spread out so ALL of the pages are visible. The EEO Policy must be signed by the company’s chief policy-making official and must identify the company’s EEO Officer and his/her phone number.
4. Verify that all employee facilities are desegregated.
5. Verify that minorities/females are employed and integrated into the various crafts of the project/area workforce.
6. Verify that the contractor's and/or subcontractor's supervisors have been advised of the contractor's EEO commitments (complete Superintendent Interview Form). Also, determine whether employees have been advised in meetings or by personal notice that EEO requirements will be honored (complete employee interview form).
7. Verify that the contractor has personnel on the project in an apprenticeship or on-the-job training program. If so, are minority/female employees in the training program?
8. Verify that the contractor, or an authorized representative, periodically conducts inspections and/or reviews to ensure that discriminatory working conditions and/or employment practices do not exist on the project site.
9. Verify that the contractor's EEO Officer visits the project site and is known to State project personnel.
D. EXPLANATION OF INTERVIEW FORMS
1. EEO Project On-Site Report: Record all On-Site Observations (bulletin board information; equitable toilet facilities; indication of harassment or intimidation).
Obtain from the prime and subcontractor’s superintendent/foreman the headcount of employees working on the day of the on-site visit.
Document any additional observations/comments.
2. EEO/Prevailing Wage Employee Interview Form: Conduct annual interviews with contractor’s employees and record responses. Add additional comments, as necessary. When conducting return visits to the same project, it is not necessary to complete an interview form on previously interviewed employees. Do greet those employees and ask if everything is going all right. Conduct interviews on employees who are new to the project or have not been interviewed previously.
If employees change employers, conduct new interviews.
It is not necessary to interview all employees on the project during the on-site when subsequent visits will be conducted. A general rule of thumb is to interview two employees in each classification during each visit.
3. Superintendent/Supervisor’s Interview Form:
• Complete questions 1-10 when interviewing a superintendent regardless of whether the superintendent works for the Prime or a subcontractor on the project.
• Complete questions 11-16 when interviewing the Prime’s superintendent.
• Complete questions 17-20 when interviewing the DBE subcontractor’s superintendent.
Interview each superintendent at least once during the construction season.
4. DBE Commercially Useful Function Project Site Review Form (CR-6): This form is to be completed when there is a DBE working onsite or when the DBE delivers materials to the project. A new form shall be completed for each DBE subcontractor working on or supplying for the project. Additional forms shall be completed each time a new/different DBE foreman or superintendent joins the project.
E. INCIDENT REPORT AND COMPLAINT INTAKE FORM (CR-4 and CR-5)
If during the on-site, potential EEO violations are observed, i.e., inappropriate graffiti, offensive language, racial slurs, inappropriate jokes, harassment, etc., the DEEOCC will document the observations using form CR-4. Where necessary, the DEEOCC shall obtain additional information from the contractor or field personnel. The DEEOCC is responsible for bringing these issues to the attention of the contractor for resolution. The contractor must provide to the DEEOCC copies of all resolutions/outcomes. The DEEOCC will keep this documentation in a file separate from the project file.
When an allegation of discrimination and/or harassment, i.e., a formal complaint, is brought to the attention of the DEEOCC, the DEEOCC shall complete the Discrimination Intake Form (CR-5) and forward it to Central Office, Office of Contracts.
DO NOT CONDUCT FURTHER INVESTIGATION. THE FORMAL INVESTIGATION WILL BE CONDUCTED BY ODOT’s CHIEF COUNSEL’S OFFICE.
The DEEOCC shall keep all aforementioned documentation in a file separate from the project file. Central Office shall be notified of repeated discriminatory issues involving the same contractor.
See the following attachments:
EEO Project On-Site Visit Report
Employee’s Interview Form
Superintendent’s Interview Form
ODOT EEO Incident Report Form CR-4
ODOT Discrimination Complaint Intake Form CR-5
DBE Commercially Useful Function Project Site Review Form CR-6
X. ODOT’s ON-THE-JOB TRAINING PROGRAM
A. OBJECTIVE
Training and upgrading of minorities, women and disadvantaged persons toward journey-person status is the primary objective of the On-the-Job Training Program.
B. HIGHLIGHTS
The program is not project specific.
1. Tracking is done on an annual basis.
2. All contractors (prime and sub) are eligible to participate.
3. Training is permitted on any contract held by the contractor, whether or not it is Federally funded, provided the contractor holds one (1) Federally funded project
during the year.
4. No monetary reimbursement by ODOT.
C. TRAINING REQUIREMENTS
1. The minimum length and type of training for each classification will be as established in the training/apprenticeship program selected by the contractor.
2. Each trainee must have a training program approved by ODOT.
3. Contractors registering their apprentices/trainees in ODOT’s OJT program must be involved in at least one Federal project per calendar year in order to get FHWA training credit.
4. All ODOT OJT trainees not registered in a union apprenticeship program must be approved by the DEEOCC.
➢ The contractor shall submit to the District EEOCC in the company’s home office district and outline of the type of training to be conducted.
➢ The intent of these provisions is to provide real and meaningful training in the construction crafts. Off-site training is permissible only when it is an integral part of an approved training program and does not comprise a significant part of the overall training.
➢ Apprentice and On-the-Job Training are permissible in the following crafts: equipment operator, carpenter, cement masons, iron worker, truck driver, electrician, and laborer.
➢ Training in the laborer classification may be permitted provided that significant and meaningful training is provided and approved by the state agency.
➢ Training is also permissible in lower level management positions such as office engineers, estimators, timekeepers, etc. where the training is oriented toward construction applications.
➢ Training is not permitted in the following classifications: bookkeeper, clerk/typist, secretary, etc.
➢ A contractor not registered as a training agent with the Ohio State Apprenticeship Council may choose to adopt an existing ODOT training program. Adoption of an ODOT approved training program will ensure the trainee has successfully completed a sufficient number of hours of training.
➢ The contractor shall estimate, outline and submit to the ODOT District EEOCC the total number of hours that it will take for the trainee to complete the program and ensure that trainee’s skill is comparable to journeyperson level.
➢ The contractor must ensure that the company maintains equipment and fully trained journey level workers at all times to train apprentices or On-the-Job Trainees in the work processes. A training program approval letter shall be sent to the contractor by the DEEOCC. The ODOT approval letter shall be valid certification that the contractor is an approved training agent and shall be prima facie proof of compliance with this requirement.
➢ The ratio of apprentices to journey level workers shall be in accordance with the accepted standard for the particular craft or occupation.
D. REPORTING REQUIREMENTS
1. A CR-1 report is to be completed by the Contractor on each trainee registered in ODOT’s OJT Program and submitted to the DEEOCC in which the contractor’s home office is located.
2. The DEEOCC shall report each apprentice/trainee in the COREP program as soon as the CR-1 report is received by the district. Work hours should be reported when the trainee ends work for the year, terminates employment, or reaches journey-person status. Keeping the report current is vital to the Office of Contract’s ability to respond to questions by special interest groups.
3. CR-1 reports should be submitted by the contractor at the following times:
a) When the trainee begins work with the contractor.
b) When the trainee’s employment is terminated.
c) At the end of the calendar year, with a year to date summary of the work hours performed by the trainee.
d) When the trainee reaches journey-person status.
4. The contractor is required to submit to the district a year-end CR-1 report no later than January 5th. This report shall cover the trainee’s work for the preceding year.
5. The contractor should submit the reports to the district in which the contractor’s home office is located.
6. The DEEOCC shall send year-end reminder letters to the contractor in mid December requesting final hours.
7. COREP CR-1 reports should be updated no later than January 10th.
E. APPRENTICE CERTIFICATION
All Contractors shall submit to the district in which the company’s home office is located their own Training Program for approval or the Apprenticeship Certificate from the Ohio State Apprenticeship Council.
All ODOT OJT Trainees must have the appropriate certification. It is the responsibility of the Contractor to obtain Apprenticeship Certificates from the Ohio State Apprenticeship Council. The union apprenticeship agreement is not acceptable verification of an apprentice’s enrollment in a union sponsored training program. Copies of all Apprenticeship Certificates, regardless of whether they have registered in ODOT’s OJT program, must be submitted to the DEOCC in the company’s home district each time an apprentice is hired by the Contractor. The DEOCC shall advise the Contractor whose apprentices are not registered with ODOT’s OJT Program that they must register those apprentices in the ODOT OJT Program. The DEOCC shall then compare the information found on the CR-1 report with those OSAC certificates received to ensure that all trainees/apprentices are registered in ODOT’s OJT program.
See the following attachments:
Proposal Note for ODOT OJT
Contractor’s guidelines for ODOT OJT Program
CR-1 Form
Sample request letter from Contractor to US DOL OSAC
Sample OSAC Apprenticeship Certification
OSAC Apprenticeship Service Areas and Contact Information
Unacceptable union agreement
Laborer’s Certification
Year-end reminder letter
Sample Non-union Training Programs
XII. SUBCONTRACTOR NOTIFICATION
Prime contractors are required to notify their subcontractors in writing of their EEO obligations on the project. A copy of the notification shall be sent to the DEEOCC.
See attached sample letter.
XIII. FORMS PR-1391 and PR-1392
A. REQUIREMENTS
All primes and subcontractors working on Federally funded projects of over $10,000 are required to complete a Federal-Aid Highway Construction Contractors Annual EEO Report (Form PR-1391) for the week including July 15.
1. The DEEOCC should send a reminder letter to all contractors with home offices in their district no later than July 15. The reminder should say that the report is due to the district no later than August 10.
2. Reports should be gathered by each district for ONLY the contractors with home offices in their district.
3. The DEEOCC should check each report for accuracy and completeness. Contact the contractor for corrections and incomplete reports.
4. When completing the 1392 report, count only the number of contracts and the dollar amounts of the prime contractor. Counting the subcontractor’s project numbers and dollar amounts would result in inflated figures, as these totals are already covered on the prime report.
5. The PR-1392 report should be completed in the COREP system no later than September 5.
See the following attachments:
Subcontractor Notification Letter
Contractor’s 1391 reminder letter
Blank PR-1391
PR-1392
COREP User’s Guide
A. Sybase Installation
First you should make sure you have Sybase installed. If it is already installed, you can skip to Section B.
If the C:\Sybase folder does not exist on your hard drive, go to the folder O:\Sybase\Clnt1111 and run the setup.exe file. Make sure that Licensed Products is the selected installation type. Click Next and affirm that C:\Sybase is the selected destination for the program. Click Next twice.
Select each product or option from the list as shown.
Click Next and then click Install from the next screen.
After the installation finishes, you may have to Log Off and then Log On once more.
Once you’ve logged back on, locate the C:\Sybase folder and Copy the sql.ini file. Paste this file in your C:\Sybase\ini folder (create this folder if it does not already exist).
Next you will install the COREP program.
O to the O:\COREP folder and run setup.exe
Make sure that the Source Path: is set to O:\COREP and the Destination Path is set to C:\Program Files\ODOT\COREP
Uncheck the boxes next to Show Readme and Create Desktop Shortcut.
Click Install.
After the installation finishes, the Login screen appears.
The User ID you will use depends on which district’s data you will be working with. For District 1, the User ID is “d01”, for District 2, “d02” and so on. District 10 is “d10”, District 11, “d11”, etc. “co” is the login for Central Office, and is in the example to the right. The Password for all User Ids is “none” (meaning the actual word “none”, not that there is no password).
*Note*: You will not be able to save data and create reports if you are logged in as “co”.
The Contractor Reports window opens up. If you’ve logged in successfully, the word Connected will be displayed in the lower-left corner.
This is the main interface that you’ll be working with.
[pic]
Before you create a new 1392 Form or OJT Report, select the Default Settings command from the Options menu. Change the value in the Period box to period corresponding with the contractor’s report submitted to the district. For the 1392 Form the default should be July-September. Verify the year shown is the current year for the 1392 Form and the correct year when entering the total number of hours worked for the OJT report. For instance, if the total number of hours an OJT worked in 2006 is entered into the COREP program in January 2007 change the default year to 2006. On the Contractor Reports screen select 1392 and the current year.
B. CREATING AND PRINTING A 1392 REPORT
To create a new 1392 report, select 1392 from the New command in the File menu. The Contractors window appears.
Type either the contractor’s FID # or name in the appropriate box and click Search.
Clicking Search without entering any data into the boxes above will list all of the available contractors, as shown here. However, if you are looking for a particular contractor, it is much faster to type in part of their information (such as the first word in the contractor name) before hitting Search. You can search by FID#, Name, City, State, and/or Zip Code by inputting the text to search for in the boxes above and clicking Search. At any time, you can clear the information in the text boxes and the table by clicking the Clear button.
[pic]
Once you have a contractor selected from the table, clicking Detail will bring up the contractor’s details in the text boxes. The Update button appears in place of the Clear button, and the New button also appears next to the FID# box.
From here, you can add a new contractor record by clicking New, entering all relevant information, and then clicking Add (the Update button changes to Add when New is clicked). To update the existing details of a record, simply edit the text fields and then click Update. The Search button returns you to the previous layout.
Choosing OK with a contractor selected will bring you to the 1392 creation screen, shown below.
*Note*: For the contractor to be loaded into the 1392 creation screen, their information must be visible in the top text boxes. Simply highlighting their name in the table is not enough; double-click their table entry to bring up their data in the top text boxes.
When you click OK the 1392 data entry screen appears.
[pic]
This is where you will enter all of the data that will go into the 1392 report. Any data that you enter in the top 16 white boxes (those under the headings Minority, Black, Hispanic, Amer. Ind., Asian, White, Apprentice and OJT, near the top of the screen) will apply itself to this Job Category alone. Note that each of the white boxes at the top is separated by Male and Female. Begin by making sure the Supervisor’s line is grey by putting the curser on that line. Enter the number of supervisors shown on the contractor’s 1391 report submitted to the district. Make sure the numbers entered under each race category total the same as what is shown on the contractor’s report. Once you have finished entering the data for Supervisors, select the next category (if you have data that needs to be entered into that row) and enter that data into the same 16 boxes, and so on for all of the Job Categories. The column totals will calculate automatically.
Once you’ve completed all of the rows, you’re ready to Save your data. You must Save your data for the report to be generated. Double-check that all of your data has been entered correctly, and that the “Completed By” and “Title” fields have been entered as well. Next, click on the Save Button [pic] on the toolbar or choose Save from the File menu.
Now you are ready to Print the report. Select, from the Options menu, 1392 Report. You will now be viewing the report in Print Preview mode.
Click the Print button [pic] on the toolbar to print your report.
C. CREATING AN OJT REPORT
Select On Job Trainee from the New option in the File menu. Choose the contractor from which to create the report in the same manner described in section B: Creating and Printing a 1392 Report.
Next, go to the Trainee menu and select New. The Trainee Search window that appears similarly like the Contractors window does for creating the 1391 reports. Entering data in any of the text fields allows you to search for trainees whose information matches your input. Click Search after inputting text to search for particular data, or, if you leave all text fields blank, all of the available trainees will be displayed. The Clear button will clear all text fields of data, as well as the table of search results.
Either clicking the Details button or clicking on a row in the table changes the window to Detail mode, shown below. Here, you can edit trainee data (which becomes permanent when the Update button is clicked) or add a New trainee (once again, you must Update for the new trainee to become a permanent part of the database). Click Search to return to Search mode.
Once you’ve selected a trainee, clicking OK will return you to the On Job Trainee window. Your selected trainee will have been added to the list at the bottom. The trainee’s data can be edited in the text fields shown. To add another trainee to the list, select New again from the Trainee menu and repeat the selection process described above.
Once you have selected a contractor, added all necessary trainees to the list, and filled out all relevant data fields, Save your data as described in section C. Preview your report by selecting OJT Annual Report from the Reports menu, and Print the report by clicking on the Print button. [pic]
XV. CONTRACT COMPLIANCE REVIEW PROCEDURES
The reviewing officer will also make a physical tour of the project site and meet with employees in each trade.
A. CRITERIA FOR PRIORITIZING THE CONTRACTORS TO BE REVIEWED
When selecting contractors for review, priority in scheduling reviews shall be based on the following:
▪ Top thirty contractors, based on dollar volume of work with ODOT, will be reviewed each year. These contractors will be identified by Central Office each spring based on the previous year’s work.
▪ Contractors whose workforce holds the greatest potential for employment and promotion of females and minorities, particularly in the higher skilled crafts and occupations.
▪ Contractors working in areas that have a significant minority and female labor force within the recruitment area.
▪ Contractors who have not been reviewed in the last twenty four (24) months.
▪ Contractor participation or nonparticipation in ODOT’s On-the-Job Training program.
▪ Where compliance with the equal opportunity requirements is questionable.
▪ Reviews specifically requested by the Office of Contracts or FHWA.
▪ Contractors who are continually delinquent in sending necessary EEO reports to the DEEOCC or who routinely fail to achieve DBE goals.
▪ During the on-site visit the DEEOCC determines that the contractor has failed to inform their personnel of the company’s affirmative action practices.
B. OTHER CONSIDERATIONS FOR SCHEDULING REVIEWS
▪ The DEEOCC shall consider:
▪ The geographic area from which the contractor recruits employees, i.e. reasonable recruitment area, an hour’s drive from the project.
▪ Metropolitan Statistical Area (MSA) or census data.
▪ The county in which the Federal or Federal-Aid project is located
▪ When reasonable, reviews shall be conducted prior to or during peak employment periods.
C. CONTRACTOR NOTIFICATION
1. The contractor will be notified of the CCR in writing by certified mail with return receipt requested or by e-mail attachment. If the Contractor’s Self Analysis Packet is sent by e-mail attachment, request that the contractor send a “received” e-mail. If a “received” e-mail is not returned to the DEEOCC within 48 hours the DEEOCC must call the contractor to verify that the Self Analysis Packet was received, the contractor opened it and is able to read it.
2. The suggested notification time line procedure is as follows:
* Notification sent by certified mail to contractor six weeks prior to the review.
▪ The six week breakdown is as follows:
* 5 to 7 days for the contractor to receive the certified notification letter.
* Two weeks for the completion of the Contractor’s Affirmative Action Evaluation (Contractor’s Self-Analysis Packet) and supporting documentation.
* 5 to 7 days for return mail from contractor.
* Two weeks for the DEEOCC to analyze the data and prepare for the review. to the on-site meeting
**Notification sent by e-mail may, at the reviewer’s discretion, be sent four weeks prior to the on-site meeting.
3. This notification shall include:
* The scheduled review date.
* A list of authorities.
* The purpose of the review.
* Required attendees.
* A list of required documents. See sample notification letters in this section.
* A SUPERINTENDENT’S INTERVIEW FORM. Considering the confidential nature of the question on this form ODOT requests that the interview form be mailed directly back to the reviewer one week prior to the compliance review on-site. If mailing the notice include a self addressed stamped envelope for the Superintendent’s Interview Form.
NOTE: A Contractor’s Self-Analysis Packet shall be sent with the notification letter.
4. The contractor will be requested to provide a meeting place on the day of the visit, either at the local office of the contractor. Reviews should be held at the jobsite only if the contractor office is located out of the state of Ohio. Generally, the contractor does not keep the required documents necessary to complete an EEO contract compliance review at the project site.
5. The DEEOCC will notify all joint venture participants that the analysis set is to be completed as one (1) contractor, not separately.
6. The contractor will be requested to supply all of the following information to the DEEOCC prior to the review. The Contractor’s Self-Analysis Packet, all back up documentation and the signed and notarized affidavit shall be kept intact. THESE ORIGINALS BECOME A LEGAL DOCUMENT AND MAY NOT BE ALTERED IN ANY MANNER. It is MANDATORY that this information be copied and the copies placed in a review notebook prior to the on-site visit. It is suggested that the original Contractor’s Self-Analysis Packet be stored in a separate area from the review notebook.
(Please see section “Instructions for Creating Contract Compliance Review Notebook”).
* The Contractor’s Self-Analysis Packet.
* Contractor’s EEO policy and Contractor’s Sexual Harassment Policy.
* A BLANK copy of the company’s purchase order and subcontract agreement. For subcontractors this should be the documents used by the Contractor and not by the prime.
* Documentation of the solicitations to all DBE contractors contacted as potential subcontractors, vendors, or suppliers for the project(s) being reviewed.
* Contractor’s employment application, if one is utilized.
* A statement of the status of any action pertaining to employment practices taken by the Equal Employment Opportunity Commission (EEOC), Ohio Civil Right Commission (OCRC), or other Federal, State, or local agency, against the contractor or any of their employees.
* A list of promotions made during the past six months, which includes name, race, national origin, sex, previous job held, job promoted into, and corresponding wage rate.
* A list of construction employees (master payroll) who worked for the company during the review period (including project supervisory personnel). Include the name, date of hire, job classification, wage, race, national origin, and sex.
* Current Form PR 1391
* Names and titles of personnel that will be representing the contractor's firm at the on-site review. Transfer this information to Page 1 of the final determination packet, hereafter known as the Affirmative Action Evaluation (AAEVAL).
* Documentation showing current EEO Officer’s job duties and responsibilities. This should include all duties not just those pertaining to EEO/AA.
• What experience does the EEO Officer have which would qualify as EEO related?
• If no previous experience is identified, what training has been provided?
• What has the EEO Officer done to increase his/her knowledge of the program?
• What authority does the EEO Officer have to accomplish program objectives?
• Ascertain if the EEO Officer has been given the authority to implement program objectives formally or informally.
* List of all members of the contractor’s staff who are authorized to hire, supervise, promote, and discharge employees or make recommendation for such actions.
* Documentation of indoctrination of this staff regarding company EEO obligations.
* List of company personnel responsible for recruitment.
* Documentation showing training of recruitment personnel on company EEO hiring procedures.
* Demographic breakdown of the union enrollment (number of active members, number of minorities, number of females). Provide a separate sheet for each union with which the contractor has a collective bargaining agreement. This information should be provided by the union to the contractor and include all active members of that union not solely the contractor’s employees.
7. If required, review union agreement for exclusive referral clause and EEO provisions. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contractor’s compliance with equal employment opportunity contract provisions.
8. If for any reason the contractor is being uncooperative and will not respond to deadlines, letters, phone calls, etc. from the district, the contractor will be found in noncompliance and the Central Office External Civil Rights Manager will be notified. The External Civil Rights Manager will at this time issue a show cause notice scheduling the contractor’s show cause meeting. The meeting will be scheduled within 30 days of the date of the show cause letter.
CRITERIA FOR DETERMINING TYPE OF REVIEW
The following criteria shall be used to determine whether a contract compliance review is conducted on-site in person by the DEEOCC or via the telephone (desk audit):
| On-Site Criteria |Desk Audit Criteria |
|Contractor has never been reviewed. |Follow-up review. |
|Contractor was in “non-compliance” during last review. |Contractors repeatedly found “in-compliance.” |
|If preliminary review of the Contractor’s Self-Analysis Packet and |Contractors with only paper deficiencies (deficiencies that can be |
|supporting documentation indicate the contractor should be found in |corrected within 10 days of the review or less). |
|“non-compliance” the review defaults to an automatic on-site. | |
|If Contractor fails to submit the Self-Analysis Packet and/or |A contractor submitting a complete packet with all supporting |
|supporting documentation for the desk audit, the review defaults to |documentation which indicates good faith effort has been made in all |
|an automatic on-site. |categories. |
|If the Self-Analysis Packet received from the Contractor or the desk | |
|audit demonstrates minimal good faith effort, the review defaults to | |
|an automatic on-site, e.g., no recruitment documentation, no | |
|utilization of minorities and females when there were known hiring | |
|opportunities and insufficient documentation was provided to justify | |
|the non-hiring of minorities and females. | |
|If the Contractor’s Self-Analysis Packet and/or the supporting | |
|documentation are grossly incomplete, the review defaults to an | |
|automatic on-site. | |
|Contractors found in “non-compliance” by other agencies. | |
|Contractors with formal charges of discrimination pending. | |
|When the DEEOCC has been notified of possible discrimination | |
|(harassment, intimidation, possible coercion on the job site). | |
D. PRELIMINARY ANALYSIS (Phase I)
The reviewing officer shall look for information as follows:
* Does the contractor have an EEO policy and how it is disseminated?
* Who is responsible for the company’s EEO functions and are they effective in his/her role?
* How does the contractor recruit minority and female employees?
* How does the contractor ensure that the company does not discriminate?
* On what basis does the contractor train and promote employees?
* How does the contractor monitor subcontractors to ensure the EEO and affirmative action programs are implemented?
* To what extent does the contractor use Disadvantaged Business Enterprises? Are DBE subcontractors utilized on non goal projects?
* What types of records and reports are maintained by the contractor to monitor affirmative action progress?
* What type of documentation is maintained by the contractor to show Good Faith Efforts were made to secure minority and female employees?
Before the onsite verification and interview, the reviewer shall analyze the employment patterns, policies, practices, and programs of the contractor to determine whether or not problems exist by reviewing information relative to:
1. The contractor’s current workforce.
2. The contractor’s relationship with referral sources, e.g., unions, employment agencies, community action agencies, minority and female organizations, etc.;
← Verify that recruiting phone calls, faxes or letters to unions, job service, vocational schools and other sources were actually made by calling the source named in good faith effort documentation. If sources have no knowledge of contractor's efforts, note this to be discussed at the on-site conference.
3. The minority and female representation of recruitment sources.
4. The availability of minorities and females with requisite skills in a reasonable recruitment area.
5. The status of complaints or action pertaining to employment practices taken by the Equal Employment Opportunity commission (EEOCC), Ohio Civil Rights Commission (OCRC) or other Federal, State or Local agency, against the company or any of its employees.
6. The company’s I-29 reports covering the review period. View on the web at
7. Participation of the contractor in OJT programs.
8. Previous compliance reviews. A review of previous review reports can assist the reviewing officer in identifying problem areas uncovered in the past and following up on these areas.
9. On-site interviews.
10. Verification of Commercially Useful Function (CUF).
By examining this information, it can be determined whether potential problem areas exist in the contractor’s employment patterns, policies, practices, and programs.
E. PRELIMINARY ANALYSIS (Phase II)
The following sections are to be used as a reference tool when reviewing the Contractor’s Self-Analysis Packet. Ask yourself the questions listed in each category. If you do not have a clear understanding of each section of the contractor’s Self Analysis Packet, discuss those sections during the review with the contractor keeping those questions in mind. These questions should not be specifically asked during the review. Instead, discuss in detail the pertinent section of the Contractor’s Self Analysis Packet until you can answer the questions listed below.
* Contractor/Project Information
Principal Policy and EEO Officer: The people listed should be in attendance during the On-Site visit portion of the compliance review. The Principal Policy Officer may attend just the beginning and ending portions of the review if the EEO Officer has the authority to administer the contractor’s EEO/Affirmative Action Program with the authority to hire, discipline, layoff and terminate employees.
Review the dollar amount for size and whether the contractor/subcontractor may have opportunity to hire for their portion of the contract.
Check whether the review is being conducted prior to or after the contractor/subcontractor’s peak employment period. Where possible, it is advisable to conduct the review prior to peak employment period, in case corrective action in hiring is noted during the review.
Check the percentage of project complete. When reviewing a subcontractor, this figure should represent the portion of the subcontractor’s work only.
Note who is listed as the Superintendent for the project. Is this the person you have seen and interviewed on the project?
* Contractor Project List
Review the list of projects to determine how much work the contractor/subcontractor has in the Economic Area/County under review. If the majority of the contractor’s work is in a different Economic Area/County than the one under review, note this in the summary narrative of the review.
* Union and Recruitment Data
Review the list of unions with which the contractor has a collective bargaining agreement. The reviewer should become familiar with the collective bargaining agreements of each union. Do any of the unions listed have exclusive referral?
* Contractor’s Outside Recruitment Sources
Review the list of outside recruitment sources to determine if the contractor utilizes recruitment sources other than the unions.
* Recruitment
Review the recruitment sources supplied by the contractor. Does the contractor recruit solely from the union? Note in the review summary if the contractor has not recruited outside the union. Does the contractor list outside recruitment sources, but has not contacted any? Did the contractor supply documentation of recruitment efforts, including two way communications? How has the contractor conducted systematic and direct recruitment?
Section A - Does the contractor have a plan of action to recruit minorities and females, if his/her regular recruitment source(s) fails to provide minorities and females for his/her workforce? Obtain documentation from the contractor of all recruitment efforts made, both to and from those sources.
Section B - Does the contractor have an adequate applicant pool of minorities and females to select from?
If a contractor is signatory to a union it does not eliminate the contractor’s obligation to make good faith effort to hire minorities and females.
Section C – Did the contractor state that they recruit solely from the union? Did the contractor provide a demographic breakdown of the active members of the unions with which they have collective bargaining agreements? Did the contractor state that the union could not fill requests for minorities and females? Did the breakdown support the contractor’s claim that no minorities or females were available from the union when requested?
Please note the following:
23CFR, Part 230, Subpart A, Appendix A, (8)(d).
“In the event the Union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, or national origin; making full efforts to obtain qualified and/or qualifiable minority group persons and women. The U.S. DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended and these special provisions such contractor shall immediately notify the State Highway Agency.”
Section D - This information will indicate whether the contractor has notified outside recruitment sources, vocational schools and community organizations of apprenticeship or other training opportunities for minorities and females. The contractor must offer this notification not later than one month before the date of acceptance of applicants for these programs.
Section E - This information will indicate whether the contractor encourages internal recruitment of minorities and females.
* Hiring
For the skilled trades this section is applicable to nonunion contractors only. For superintendents and foremen this section is applicable to all contractors.
* Training
Training programs and requirements have been continually overlooked by reviewing officers as tools to address areas of minority/female underutilization. List all OJT and/or apprenticeship programs the contractor is participating in. (How effective have these programs been in training minorities and women?) Obtain list of trainees enrolled by the contractor on the project being reviewed. How has the contractor advised employees and applicants for employment of available training programs and entrance requirements for each? Who is responsible for this? How has the contractor utilized training programs to increase minority/female representation in trades where they are being underutilized? (Go back to those trades identified earlier in the review where underutilization exists.)
Are trainees being trained in trades for which there is a shortage of qualified personnel? The intent here is to ensure the most effective use of training programs.
How has the contractor periodically reviewed the training and promotion potential of minority/female employees? Are employees interviewed? By whom? How often?
Is particular attention paid to minorities/females in the lower skilled classifications? List specific examples of instances where contractor has encouraged employees to apply for training and promotion.
What procedures are in effect to ensure that each trainee is provided with a copy of the training program that the trainee is to follow (applicable to nonunion contractors)?
* On-the-Job Trainees (OJT)
Are the OJTs listed on this page registered with the Ohio State Apprenticeship Council? If the contractor is non union, has the training program been submitted and approved by the contractor’s home district? Does the training plan mirror the field work outline of a similar craft union’s apprenticeship program? Has the home district EEO Coordinator received CR-1's on all trainees listed? Where applicable, have OSAC certificates been received by the district overseeing the project under review? Does the list of On-the-Job Trainees include minorities and females? This information will indicate whether the contractor is taking a proactive approach to exposing youth to the construction trades. This type of exposure can include working in the construction yard, shop or office.
| |
|Reminder - utilization is based on hours worked, not number of employees hired. |
* Economic Area/Project and Statewide New Hires and Hours
Review the list on pages 13 & 16 to see when the minority and female employees were hired. Is the count consistent with pages 14 & 17, Part B? Were they part of the contractor’s workforce prior to work commencing on the project under review or were the minorities and females hired specifically for that project? Compare the new hire dates of the minorities and females with the non-minority males. Were the females and minorities hired after most positions were filled? When conducting your on-site project visits, did you interview any of the minorities or females shown on the new hire list? If not, ask the contractor where the minorities and females were working. Check the master payroll for layoff dates. Were the minorities and females laid off first? Look for discriminatory patterns.
Table A should include all of the contractor’s hours worked (both public & private) in the Economic Area or for the project under review (pg. 14) and all the hours worked Statewide (pg. 17). Were the hours of minority and female employees reasonable? If percentages are low, ask the contractor why they are low and what good faith efforts were made to increase the hours.
Review Table A (Pages 14 & 17) for deficiencies in each craft. If deficiencies are noted, check Table B for opportunities for hire. If Table B indicates “new hires” in the deficient craft, review the breakdown of new hires.
Were minorities and/or females included in the new hires? If opportunities for new hires existed and no minorities and/or females were hired, the contractor is found deficient in this craft and this craft should be listed under recommendations (pages 14 and 17).
If no opportunity for new hires existed, the contractor is not found deficient in this craft and the craft will not be listed under recommendations (pages 14 and 17).
* Although both female and minority utilization is to be discussed with the contractor during the review, cite the contractor’s deficiencies for final determination as follows:
√ Cite minority deficiencies noted in the Economic Area ONLY. There are no Federal statewide minority requirements.
√ Cite female deficiencies noted in the statewide utilization figures
ONLY. There are no federal county female utilization requirements.
| |
|WHEN REVIEWS ARE CONDUCTED ON PROJECTS CONTAINING CENSUS DATA LANGUAGE, USE THE FOLLOWING METHOD FOR EXAMINING A CONTRACTOR’S |
|GOOD FAITH EFFORTS TO HIRE MINORITIES AND FEMALES. |
* Census Data Website Links
The census data for the county in which the project is located (identified in the proposal), shall be used as a guide in determining optimal minority and female utilization.
Minority and female utilization obligations by craft per county (applicable to project):
Statewide utilization obligations by craft (applicable to the Contractor’s statewide workforce):
Using the census data, locate the contract requirements for minority and female utilization per craft for the county in which the project is located. Compare Table A (page 14) female & minority utilization percentages with the county census data.
Compare Table A (page 17) female & minority utilization percentages with the statewide utilization as shown on the website:
If the contractor’s minority and female utilization percentages are less than indicated in the census data, compare those utilization percentages outlined in Table A with the contractor’s opportunities to hire (Table B, pages 14 & 17). When analyzing this information compare Table B, page 14 with the census data and Table B, page 17 with the statewide information. Use this information to assist in determining if the contractor has made a good faith effort to hire minorities and females.
NOTE: Compliance with the goals will be measured against the total work hours performed per craft not the number of employees hired.
* Cite the contractor’s deficiencies for final determination as follows:
√ Minorities on the project, per craft.
√ Females on the project, per craft
√ Minorities utilized statewide, per craft
√ Females utilized statewide, per craft
* Metropolitan Statistical Area Information
Metropolitan Statistical Area percentages are used for page 17, statewide minority participation. Find the area in which the project is located and use the percentages listed for comparison to the activity of the contractor shown on page 17.
* EEO Analysis Questionnaire
Question 2-FHWA Federal Circular PR 1273 states that EEO orientation sessions should be held not less than every 6 months. Project site EEO meetings should be conducted on a regular basis. Documentation of the meetings should include the date of meeting, the subject discussed and signature of those in attendance.
Question 8-Are the answers given on the questionnaire consistent with those given during the discussion of page 40 of the Contractor’s Self-Analysis Packet? (Subcontractor Information Sheet).
* Company Personnel Operations
The contractor should have supplied to the reviewer copies of documentation supporting the Company’s personnel actions detailed in pages 24-30.
Section A
If the contractor answers “no” to any of the questions, ask the following:
* How do minority and female employees get promoted?
* How do company employees become foremen/superintendents?
Section B
As outlined in PR 1273 the company shall hold EEO meetings with all employees having responsibility for hiring, assignment, layoff, termination or other employment decisions not less than once every six months.
All meetings shall be documented with time, place, attendees, subject matter and disposition of subject matter.
Section C
As required by Contract Provisions, Federal-aid construction contracts, Federal Circular PR 1273, Part 3B. “All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.”
Section D
Ensure that the company’s EEO Policy is not a policy only on paper, but is actively adopted and implemented by all supervisory personnel. Supervisory personnel can be held liable for violations of this policy and the excuse of “not knowing” will not excuse them from this liability.
Section E
The Reviewer shall request a copy of the new hire packet to ensure that it contains all of the required documents listed at the bottom of page 27.
Section F
The selection of employees to receive advanced skill level training shall be based on the following factors:
• The relevancy of the training to current and projected assignments in terms of organizational requirements;
• The relevancy of the training to identified individual developmental needs;
• Evidence of the candidate's ability and desire to undertake and complete successfully a comprehensive advanced skill level training program;
• Evidence of the candidate’s ability to undertake and complete successfully advanced skill training on his or her own time;
• Training shall be made available to all eligible employees
Section G
The process used when considering workforce promotions shall be free of discrimination and shall be based on merit and job related criteria.
Section H
The process used when evaluating the workforce for layoffs shall be free of discrimination and shall be based on job related criteria.
Termination policies shall be disseminated to all employees at time of hire. The contractor’s reasons for terminating an employee shall be documented.
* EEO Policy/Sexual Harassment Statements and Dissemination
The compliance officer should review the contractor’s EEO policy to ascertain whether it is equal to or greater than the policy required by contract provisions, PR 1273. Each policy must include the name and contact information for the company’s EEO Officer. Additionally, each policy must be signed by the company’s chief executive officer.
How does the contractor disseminate his EEO policy to all of his employees, i.e., meetings, employee handbooks, paychecks, bulletin boards etc.? Determine how effective these procedures are. Employee interviews may be used to follow-up on the effectiveness of procedures. Are the policies discussed with field personnel? Does the person responsible for discussing these policies with field employees have a thorough knowledge of the policies?
Determine how and when new supervisory or personnel office employees are indoctrinated on all major aspects of the contractor's EEO obligations (must be done within thirty days following their reporting for duty).
Are EEO/AA meetings held not less than once every six months?
Deficiencies shall be noted in the AAEVAL and discussed with the contractor at the EEO Contract Compliance Review.
* Construction Employment Data
Did the contractor’s project workforce include minorities and females in each craft? If not, were there new hires for this project in the underutilized craft? Were the new hires minorities or females? Did the contractor demonstrate good faith efforts to hire minorities and females in the underutilized crafts?
Did the contractor’s OHIO workforce include minorities and females in each craft? If not, were there new hires in the underutilized craft? Were the new hires minorities or females? Did the contractor demonstrate good faith efforts to hire minorities and females in the underutilized crafts?
* PR 1391
This PR 1391 should be completed on the contractor’s most recent payroll period prior to the contractor submitting their Self Analysis Packet to the Contract Compliance Review. This page gives the reviewer a snapshot of the current company employment roster. This is particularly useful if conducting a review during off peak employment months. Does the core workforce include minorities and females? Do key classifications (managers, superintendents, foremen) include minorities and females? Are the majority of females clerical workers? Note findings on the narrative summary of the review packet prior to submitting to the External Civil Rights Manager in the Office of Contracts.
* Subcontracts, Purchase orders, Lease Agreements
What efforts has the contractor exerted to solicit bids from and to utilize minority and female subcontractors? What were the results? What efforts has the contractor made to solicit bids from or to negotiate with such firms? NOTE: Failure of the contractor to solicit quotes from DBE owned firms when there is no DBE goal on the project may be construed as discrimination. If this situation is noted, please request an explanation from the contractor.
The contractor must have a procedure in place for ensuring subcontractor compliance with the EEO provisions of the contract. The contractor should also have a plan of action to be taken when a subcontractor consistently fails to comply with the EEO contract provisions.
Sample acceptable procedures for ensuring subcontractor compliance, may include, but are not limited to:
* Daily project site monitoring by the contractor under review of sub/sub-subs project personnel for representation of minorities and females.
* Monthly review by the contractor under review of the sub/sub-sub’s project specific monthly utilization report (Input 29 report).
* Review of certified payrolls submitted by sub/sub-sub.
Sample acceptable actions taken when it is noted that a subcontractor consistently fails to comply with the EEO obligations of the contract. These may include, but are not limited to:
* Reviewed contractor shall address the situation with the subcontractor’s superintendent. Document action taken. Reviewed contractor shall report all actions taken to their company EEO Officer.
* If deficiencies are noted during the review of the Input 29 reports or the certified payrolls, the reviewed contractor shall notify the non-compliant contractor’s EEO Officer.
* Additionally, the reviewed contractor should notify the ODOT DEEOCC regarding the non-compliant subcontractor when corrective action is not taken.
* Project Subcontractor Information
The Prime Contractor/Subcontractor is responsible for ensuring that their 2nd tier contractor’s are complying with the EEO provisions of the contract. Review page 37 for the subcontractor/sub-subcontractor’s percentage of minority and female utilization on the project. Were the hours on the project significant? Was the sub/sub-sub on the project for more than a few days? If the percentage of minority and female utilization is low, ask the contractor under review if any action was taken when it was evident that the sub/sub-sub was not complying with the EEO requirements of the contract. Note the answer (action taken or lack of) in the summary portion of the review.
* Compliance Review History
Self Explanatory
* Statistical Analysis
Self Explanatory
* DBE Subcontractor/Supplier Verification
Review the information regarding the DBE requirement of the contract. Has the contractor fulfilled the contract provisions? If not, has there been a problem with obtaining DBE’s? Is DBE work pending on the contract or was it completed by a non DBE contractor? When will the DBE portion of the contract be completed? Who are the DBE’s scheduled to complete the contract requirements? If the requirement has not been fulfilled, verify the information given by the contractor with the ODOT Project Engineer in charge of the project under review. Note findings in the narrative summary of the review packet.
* Prevailing Wage Verification
The Davis-Bacon Act requires the payment of locally prevailing wages and fringe benefits to laborers and mechanics employed on Federal contracts in excess of $2,000 for construction, alteration, or repair (including painting and decorating) of public buildings or public works.
• Nonsegregated Facilities
Applies to contractors, subcontractors, and material suppliers on all Federal-aid contracts and related subcontracts of $10,000 or more. The intent of this provision, also derived from Title VI, is to ensure that past discriminatory practices of providing separate facilities or prohibiting minority’s access to facilities are eliminated. By entering into the contract, the organizations and firms certify that they maintain nonsegregated facilities that conform to requirements of 41 CFR 60.1.8. The prime contractor is required to obtain a similar certification from each subcontractor and supplier, as applicable. One exception to the nonsegregated facilities provision is for the disabled when the demands for accessibility override (e.g., disabled parking). In addition, single-user or separate bathrooms or dressing facilities are also allowable for privacy purposes.
* Safety
It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
When reviewing the contractors Safety program pay particular attention to the following::
Does the contractor have an active safety and health program in place that deals with general safety and health program elements, as well as management of hazards specific to a construction work site? Is one person clearly responsible for the overall activities of the safety and health program? Is there a safety committee or group made up of management and labor representatives that meet regularly and report in writing on activities? Is there a working procedure for handling in-house employee complaints regarding safety and health? Are employees advised of the successful efforts and accomplishments that the company is making to ensure a safe, healthy workplace? Are employee incentives considered for employees or work groups who have excelled in reducing workplace injuries and illnesses?
If the contractor's safety policy does not clearly identify the above listed items or if the contractor has answered “no” to any of these questions, the reviewer shall recommend that consideration be given to improving and developing that particular area and updating the safety manual.
* Contractor’s Affidavit
The Contractor’s Affidavit MUST be completely filled out, signed and notarized.
F. EXPLANATION OF THE CONTRACTOR’S SUPPORTING INFORMATATION
In addition to the Contractor’s Self-Analysis Packet, the contractor’s EEO Contract Compliance Review Notification Letter requests the following items be sent to the reviewer:
▪ EEO Policy/Sexual Harassment Statements and Dissemination
The DEEOCC must ensure that the EEO policy meets the minimum requirements outlined in FHWA 1273. The EEO policy should include the company EEO Officer’s name and contact information.
▪ The Sexual Harassment policy shall include the definition of sexual harassment, and the repercussions of violating the policy. The policy must state that violations will result in penalties up to and including termination.
▪ Both polices must be signed by the company’s Chief Executive Officer. Policies shall be disseminated to and reviewed with all new hires and current employees not less than once every six months. Additionally, the policies shall be posted on company home office and on-site bulletin boards.
▪ Subcontract, Purchase Order & Lease Agreement:
Any recipient of Federal or State funds must inform all lower tier (subs, sub -subcontractors, material suppliers, lessors of equipment) of the EEO requirements of the contract by written notification (see subcontractor notification letter requirement in Preconstruction Conference section) and inclusion of the Federal Circular PR 1273 in all transaction documents, i.e., purchase orders, subcontracts and lease agreements.
▪ Equal Opportunity Employer Tagline:
“Equal Opportunity Employer” is the tagline that appears on all official company documents (letterhead, purchase orders, etc.). “EOE” may be substituted for “Equal Opportunity Employer” in company advertising. The DEEOCC must verify that this tagline appears.
▪ Disadvantaged Business Enterprise (DBE) Subcontractors & Material Suppliers
The contractor shall provide to the reviewer documentation of Disadvantaged Business Enterprises contacted as potential subcontractors, vendors or suppliers for the project being reviewed. Were DBE’s used above and beyond the goal of the project? Did the contractor use DBEs when there was no contract requirement? If the contractor utilized DBE’s above and beyond the requirement or when there was no DBE contractual requirement, note the contractor’s good faith efforts in the appropriate area of the Final Determination Packet and in the summary under Observations.
▪ Subcontract agreements between the contractor and the applicable DBE on project(s) being reviewed;
The purpose is to verify the participation as required by the Contract Bid Proposal and C-92's.
▪ Company Employment Application
See Questioning Applicants for Employment & Membership in Labor Organizations (Pamphlet) attached
▪ Promotions:
A list of promotions made during the review period, including race, national origin, and sex, of the employee, previous job held, job promoted into and corresponding wage rate. Were all those promoted white males? If so, ask the contractor why minorities and females were not considered for promotion. Determine from the contractor’s answer whether there appears to be any discrimination.
▪ Master Payroll:
A list of construction employees who worked for the company during the review period (include project supervisory personnel). When were minorities and females hired and laid off? Are these dates consistent with hire and layoff dates of white males in the same classifications? Determine whether there appears to be any discriminatory pattern.
▪ I-29 Reports:
Submitting the I-29 reports is no longer a requirement of the Contract Compliance Review process as the Form I-29 may be viewed on line at However, information in the reports is important and shall be reviewed prior to the onsite visit. Do the reports indicate that minorities and females were utilized throughout the year as equally as white males? The appearance of a discriminatory pattern may not indicate discrimination. Does the contractor’s workforce include apprentices? Have the apprentices been registered in ODOT’s On-the-Job Training Program? Is the ratio of apprentice to journeyperson within the prevailing wage ratio for each craft? All issues shall be discussed with the contractor during the on-site visit and the results of the discussion documented in the appropriate area of the Final Determination Packet and in the summary under Observations.
▪ Names and titles of personnel who will be representing the contractor’s firm at the on-site review.
o EEO Officer’s Duties and Responsibilities:
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.
o Indoctrination of staff that are authorized to hire, supervise, promote, and discharge employees or make recommendations for such actions:
The contractor shall provide documentation of the indoctrination of staff regarding the company’s EEO obligations.
o List of company personnel responsible for recruitment;
The contractor shall provide documentation showing training of recruitment personnel on the Company’s EEO hiring procedures.
o Documentation showing training of recruitment personnel on company EEO hiring procedures;
Contract bid proposal(s) for the projects being reviewed.
Information pertinent to the review is obtained from reviewing the contract proposal, i.e., DBE goal, wage rates, utilization information, safety.
▪ Leasing/Rental Agreements:
Review lease/rental agreements the contractor has for equipment leased/rented. The purpose is to verify: that equipment and/or operator on site is not regularly used by or do not regularly work for the prime contractor or another subcontractor on the project; verify that equipment leased by a DBE subcontractor is not owned by the prime on the project. Ensure that the EOE tag line appears on all lease/rental agreements.
XVI. CONDUCTING A FORMAL EEO CONTRACT COMPLIANCE REVIEW
* Review of the entire Contractor’s Self-Analysis Packet occurs at this meeting.
* Discuss any items which need further clarification.
* Obtain all back up documentation not previously provided.
* During the Exit Conference discuss all contractor deficiencies.
A. ONSITE VERIFICATION AND INTERVIEWS (Phase III)
Phase III of the review consists of the construction or home office site visit(s). During the initial meeting with the contractor, the following topics shall be discussed:
* Objectives of the visit.
* The material submitted by the contractor, including the actual implementation of other employee referral source system and any discrepancies found in the material.
* Arrangements for project-site tours and employee interviews by the reviewer, if not previously conducted.
B. PHYSICAL INSPECTION
* The DEEOCC will make a physical tour of the office, shop, and project site to determine that:
* EEO posters, EEO policy, and the name and phone number of the company EEO Officer are displayed in conspicuous places (bulletin board information) in the office shop or other in-house locations.
* Facilities are provided on a nonsegregated basis (e.g. work areas, washrooms, time clocks, locker rooms, storage areas, parking lots and drinking fountains).
* Reported employment data is accurate.
* Meetings have been held with employees to discuss EEO Policy, particularly to new employees.
* Employees are aware of their right to file complaints of discrimination.
Project on-site visits may be conducted prior to review.
C. EXIT CONFERENCE
During the exit conference with the contractor, all preliminary findings shall be discussed.
Minor deficiencies shall be corrected and submitted to the reviewer within 10 days of the
Exit Conference.
D. COMPLIANCE DETERMINATIONS
The evidence obtained at the compliance review shall constitute a sufficient basis for an objective determination by the DEEOCC conducting the review of the contractor’s compliance or noncompliance with contractual provisions pursuant to 23 USC; 23 CFR Pts. 200, 230, 633; 29 CFR; Civil Rights Act of 1964, as amended; Special Provisions of FHWA 1273; Title VI; and FHWA EEO Special Provisions implementing the Federal-Aid Highway Act of 1968, where applicable.
A contractor shall be considered to be in-compliance when the equal opportunity requirements have been effectively implemented or there is evidence that every good faith effort has been made toward achieving this end. Efforts to achieve this goal shall be result-oriented, initiated and maintained in good faith, and emphasized as any other vital management function.
Examples of effective implementation of EEO requirements are:
← The contractor’s equal employment opportunity (EEO) policy meets the minimum guidelines as outlined in FHWA PR 1273.
← Dissemination of the policy and education of supervisory employees concerning their responsibilities in implementing the EEO policy.
← The EEO officer has the authority and responsibility to effectively administer the EEO requirements.
← Evidence of the contractor’s recruitment activities, especially those activities which establish minority and female recruitment and referral procedures.
← Participation in ODOT’s on-the-job training program, especially when minorities and females are utilized.
← The contractor’s review of all personnel actions to ensure equal opportunities.
← The contractor’s efforts to recruit minorities and females from the unions with which the contractor holds collective bargaining agreements.
← Contractor’s efforts and implementation to provide nonsegregated facilities, as required by contract provisions.
← The contractor’s procedures for monitoring subcontractors and their utilization of minority and female subcontractors and/or subcontractors with substantial minority and female employment.
← The adequacy of the contractor’s records and reports.
A contractor shall be considered to be in-compliance when the equal opportunity requirements have been effectively implemented or there is evidence that every good faith effort has been made toward achieving this end. Efforts to achieve this goal shall be result-oriented, initiated and maintained in good faith, and emphasized as any other vital management function.
If a contractor is determined to be in-compliance, the DEEOCC shall, within 15 days, prepare and submit to Central Office External Civil Rights Manager, the AAEVAL. Preparation of the review packet includes:
* Completion of the AAEVAL
* Submitting the AAEVAL to the DCE for concurrence and signature
* Sending signed copy of AAEVAL to Central Office External Civil Rights Manager for final concurrence
A contractor shall be considered to be in noncompliance when:
* The contractor has discriminated against applicants or employees with respect to the conditions or privileges of employment
* The contractor fails to provide evidence of every good faith effort to provide equal opportunity
* The contractor fails to meet VCAP requirements
Once the onsite verification and exit conference have been completed and a compliance determination made, the contractor shall be notified of the compliance determination in writing by the ODOT Office of Contracts. This written notification shall be sent to the contractor within 30 days following the receipt of the completed review packet from the DEEOCC.
E. SHOW CAUSE NOTIFICATION
If a contractor is found to be in noncompliance, action efforts to bring the contractor into compliance shall be initiated through the issuance of a show cause notice sent by the External Civil Rights Manager. The notice shall advise the contractor to show cause within 30 days why sanctions should not be imposed.
A Show Cause Notice shall be issued when a determination of noncompliance is made based upon:
* The findings of a compliance review.
* The results of an investigation which verifies the existence of discrimination.
* If the contractor failed to meet conditions of VCAP.
The scheduled location, date and time of the Show Cause Meeting shall be furnished to Central Office External Civil Rights Manager by the DEEOCC. Central Office may attend the Show Cause Meeting. Likewise, the District may request Central Office presence.
F. SHOW CAUSE PROCEDURES
During this 30-day period stated in the Show Cause Notice, the DEEOCC will be required to attempt conciliation with the contractor. These conciliation and negotiation efforts shall be directed toward correcting the contractor’s deficiencies and initiating a Corrective Action Plan (CAP).
A CAP addresses the deficiencies identified in the Show Cause Notice. The plan must specify what action is going to be taken and when that action can reasonably be expected to be completed. If there is insufficient time remaining to correct the deficiencies on the project(s) found in noncompliance, it should be addressed in the CAP that the contractor is required to meet the conditions of the CAP until a follow-up review can take place on a future project(s). Each item in the plan should correct the deficiencies stated in the Show Cause Notice.
G. SHOW CAUSE MEETING
The contractor’s final CAP will be submitted to the DEEOCC and discussed at the Show Cause Meeting. Additionally, the contractor will be required to submit monthly reports as part of the process to correct the deficiencies stated in the Show Cause Notice (SCN).
Once the CAP is accepted by Central Office and the DEEOCC, it becomes the contractor’s CAP and the contractor will be notified that the plan is accepted and should be implemented.
If the contractor fails to develop, sign and implement a CAP within the 30-day period stated in the SCN, the Department shall impose such sanctions as it or the Federal Highway Administration may determine to be appropriate, including but not limited to:
* Letter of reprimand,
* Withholding of payments to the contractor under the contract until the contractor complies.
* Cross-withholding from future projects.
* Contract termination, cancellation (in whole or in part) and/or other remedies available by law including suspension, revocation, and/or debarment.
Factors to be considered in issuing sanctions include, but are not limited to:
* The magnitude and the type of offense.
* The degree of the contractor’s culpability.
* Any steps taken to rectify the situation.
* The contractor’s record of performance on other projects.
* Whether the contractor falsified, misrepresented, or withheld information.
If the contractor implements a CAP, it will be considered that the contractor is in- compliance as long as the monthly reports and other documentation required by the CAP indicate that real progress is being made toward eliminating the deficiencies identified in the SON or that a good-faith effort is being made caps can be amended if the contractor has carried out each committed action and those actions are not producing the intended results. Following the Show Cause Meeting, a copy of the accepted CAP along with an IOC outlining the events of the Show Cause Meeting will be forwarded to the External Civil Rights Manager (ECRM) for final concurrence. The IOC shall contain the following:
* The date of the Show Cause Meeting
* Those in attendance
* The major deficiencies discussed
* A summary of the corrective action to be taken to resolve the deficiencies
* Tentative timeframe for the Follow-up Review to be held
H. RESCISSION OF SHOW CAUSE NOTICE
When the CAP is accepted by ODOT, Office of Contracts, the SON is rescinded. The CAP remains in effect until a follow-up review can be conducted. Follow-up reviews will be conducted by the DEEOCC.
I. FOLLOW-UP REVIEWS
A follow-up review is an extension of the initial review process to verify the contractor’s performance of corrective action and to validate progress report information. With the exception of the Top 30 contractors, follow-up reviews shall only be conducted on those contractors where the initial review resulted in a finding of noncompliance and a show cause notice was issued.
A follow-up review should be conducted on the contractor’s workforce at the earliest possible opportunity, and if the contractor is in a declining workforce, at the earliest possible date of the construction season, whichever allows the contractor the best opportunity to implement its CAP.
Follow-up reviews shall be conducted in the same manner as the initial review report, addressing only the deficiencies found during the initial review. The exception to this rule is when a Top 30 contractor has been found in noncompliance and remains a “Top 30" contractor the following year. If the time-frame for the follow-up review and the contractor’s formal compliance review fall in the same calendar year the reviews may be combined. Mark the review as both a follow-up and a formal compliance review.
Notice of pending follow-up review should be sent in the same manner as the original review notice with the following exceptions:
a. The notice should address only the deficiencies found during the review. Only send the contractor the sections of the Self-Analysis packet that are necessary for determining the corrective measures taken by the contractor to date.
b. Request from the contractor only those items necessary for determining the corrective measures taken to date.
NOTE: Send a complete Contractor’s Self Analysis Packet, but mark the top of the pages the contractor does not need to complete with “DO NOT COMPLETE” and put an X across the body of the page.
It is not necessary to reassess aspects of the company which were in-compliance during the initial review. Send the completed follow-up review, including a narrative summary to Central Office.
Follow-up review reports shall cover the following:
* deficiencies identified during the review
* contractor’s corrective action plan
* contractor’s corrective measures to date
* reviewer’s findings and recommendations
The Office of Contract’s procedure for processing follow-up reviews is the same as the processing of the initial reviews, except that if the contractor is already in show cause and is found to still be deficient, Central Office will, within thirty (30) days, recommend that the contractor be brought to formal meeting. The External Civil Rights Manager will immediately request a formal meeting with the Administrator, Office of Contracts.
J. HEARING PROCESS
1. When such procedures as show cause issuance, conciliation conferences and formal meetings have been unsuccessful in bringing contractors into compliance within the prescribed 30 days, the Administrator, Office of Contracts (or other appropriate level) shall immediately recommend, through channels, that the Department of Transportation obtain approval from the FHWA for a formal hearing. The contractor should be notified of the action. At this hearing, the contractor will be given the opportunity to offer a rebuttal to the findings.
2. Recommendations to the Federal Highway Administrator for hearing approval shall be accompanied by full reports of findings and case files containing any related correspondence. The following items shall be included with the recommendations:
* Copies of all Federal and Federal-Aid contracts and/or subcontracts to which the contractor is party
* Copies of any contractor or subcontractor certifications
* Copy of show cause notice
* Copies of any corrective action plans
* Copies of all pertinent Manpower Utilization Reports, if applicable
3. SHAs through FHWA regional and division offices will be advised of decisions and directions affecting contractors by the FHWA Washington Headquarters, Office of Civil Rights, for the Department of Transportation.
K. RESPONSIBILITY DETERMINATIONS
In instances where requests for formal hearings are pending FHWA approval, the contractor may be declared a non-responsible contractor for inability to comply with the equal opportunity requirements.
SHAs shall refrain from entering into any contract or contract modification subject to E.O. 11246, as amended, with a contractor who has not demonstrated eligibility for government contracts and federally assisted construction contracts pursuant to E.O. 11246, as amended.
L. COMPREHENSIVE COMPLIANCE REVIEWS
General
Comprehensive compliance reviews shall be implemented to determine employment opportunities on a county-wide and area wide rather than an individual project basis.
Methodology
(a) Section of a target area. In identifying the target area of a comprehensive compliance review (e.g. county area, or an entire State), consideration shall at least be given to the following facts:
1. Minority and female workforce concentrations
2. Suspected or alleged discrimination in union membership or referral practices by local unions involved in highway construction
3. Present or potential problem areas
4. The number of highway projects in the target area
▪ Determine the review period. After the target area has been selected, the dates for the actual onsite reviews shall be established. It is suggested that the review period cover the previous calendar year. Additional year-to-date information may be required, if necessary.
▪ Contractor notification. Those contractors selected for onsite review shall be sent a notification letter as described previously in this manual.
▪ Onsite reviews. Compliance reviews shall then be conducted in accordance with the requirements set forth in Section 230.409.
▪ Compliance determinations. Upon completion of the comprehensive review, a compliance determination shall be made. A show cause notice or compliance notification shall be sent (as appropriate) to the reviewed contractor. The compliance determination shall be based on the contractor’s target area workforce (Federal and Federal-Aid).
▪ AAEVAL Final Determination Report. DEEOCC has 15 days to submit the completed AAEVAL Final Determination Report to Central Office.
Sample Corrective Action Plan
Deficiency 1: Sources likely to yield minority employees have not been contacted for recruitment purposes.
Commitment: We have developed a system of written job applications at our home office which readily identifies minority applicants. In addition to this, as a minimum, we will contact the National Association for the Advancement of Colored People (NAACP), the League of United Latin American Citizens (LILAC), Urban League, and the Employment Security Office within 20 days to establish a referral system for minority group applicants and expand our recruitment base. We are in the process of identifying other community organizations and associations that may be able to provide minority applicants and will submit an updated listing of recruitment sources and evidence of contact by ___________ (Date).
Deficiency 2: There have been inadequate efforts to locate, qualify and increase skills of minority and female employees and applicants for employment.
Commitment: We will set up an individual file for each apprentice or trainee by __________ (Date) in order to carefully screen the progress, ensure that they are receiving the necessary training, and being promoted promptly upon completion of training requirements. We have established a goal that at least 50 percent of our apprentices and trainees will be minorities and 15 percent will be female. In addition to the commitment made to deficiency number 1, we will conduct a similar identification of organizations able to supply female applicants. Based on our projected personnel needs, we expect to have reached our 50 percent goal for apprentices and trainees by __________ (Date).
Deficiency 3: Very little effort to assure subcontractors have meaningful minority group representation among their employees.
Commitment: In cooperation with the Regional Office of Minority Business Enterprise, Department of Commerce, and the local NAACP, we have identified seven minority owned contractors that may be able to work on future contracts we may receive. These contractors (identified in the attached list) will be contacted prior to our bidding on all future contracts. In addition, we have scheduled a meeting with all subcontractors currently working on our contracts. This meeting will be held to inform the subcontractors of our intention to monitor their reports and require meaningful minority representation. This meeting will be held on __________ (Date) and we will summarize the discussion and current posture of each subcontractor for your review by __________ (Date). Additionally, as requested, we will submit a PR-1391 on __________ (Date), __________(Date), __________(Date). Finally, we have committed ourselves to maintaining at least 20 percent minority and female representation in each trade during the time we are carrying out the above commitments. We plan to have completely implemented all the provisions of these commitments by ___________ (Date).
RULES AND REGULATIONS ON EQUAL EMPLOYMENT OPPORTUNITY ON STATE
AND STATE ASSISTED PROJECTS
Whereas, it is the policy of the Department of Public Works to assure non-discrimination and equal employment opportunity on public works contracts as required by the Fourteenth Amendment to the Constitution of the United States and Federal Law and by Section 4112.02 and 153.581 of the Ohio Revised Code: and
Whereas, the Director of the Department of Public Works is a party defendant in Welch v. Rhoads, Civil case No. 67-249 (S.D. Ohio 1967) which action seeks an injunction against said Director from letting or continuing any public works contract throughout southern Ohio and said Director intends to resolve this litigation without further judicial proceedings: and
Whereas, the Director of the Department of Public Work has been directed by the Governor pursuant to Section 121.17 of the Ohio Revised Code to devise a workable program form cooperation and coordination of State and equal employment enforcement efforts so as to eliminate duplicate and overlapping efforts:
Now, Therefore I, P. Wilson Neff, Director of the Department of Public Works, under and pursuant to the authority vested in me by Section 121.07, 123.09 and other related sections of the Ohio Revised Code, do hereby order and direct:
PART I - DECLARATION OF POLICY AND TITLE
SECTION 101
Non-discrimination and equal employment opportunity are the policy of the Department of Public Works in all of its decisions, programs and activities. This Regulation may be cited as “DPW Regulation on EEO.”
PART II - NON-DISCRIMINATION IN EMPLOYMENT BY STATE CONTRACTORS AND SUBCONTRACTORS
SUBPART A - DUTIES OF THE STATE EQUAL EMPLOYMENT OPPORTUNITY COORDINATOR
SECTION 210
The Division of Equal Employment Opportunity is hereby created within the Department of Public Works which Division shall be under the direct supervision of a chief who pursuant to Section 121.17 of the Ohio Revised Code shall serve as State Equal Employment Opportunity Coordinator (hereinafter referred to as “State EEO Coordinator”). Said State EEO Coordinator shall be responsible for the administration of this Regulation and shall, consistent with the terms and policies of this regulations, adopt such implementing rules and regulations, provide such assistance and issue such orders as he/she deems necessary and appropriate to achieve the purposes hereof.
Except as may be otherwise provided by rule or regulation of the State EEO Coordinator, the procedures for promulgation of his/her implementing rules and regulations shall be those set forth in the State Administrative Procedure Act, Chapter 119, Revised Code.
SUBPART B - CONTRACTORS AGREEMENT - SECTION 202
SECTION 202
A. Except in contracts exempted in accordance with Section 204 of this Regulation, every State contract or subcontract for the construction of any public building, public highway, or other public work, subject to the terms of this Regulation, shall contain provisions barring discrimination in employment because of race, color, religion, national origin, ancestry, sex, handicap, Vietnam Veteran. “Construction” as used in this Regulation means any contract for the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways or other changes or improvements to real property including facilities providing utility services. Any material breach of such equal employment opportunity contractual provisions shall be subject to appropriate sanctions. Such provisions shall be in the form attached hereto as Appendix “A”.
B. Except as otherwise determined by rules or regulations of the State EEO Coordinator, “minority” as used in this Regulation shall include Blacks, Spanish surnamed Americans, Orientals, American Indians and Women.
C. A bidder who fails or refuses to complete or submit the State equal employment opportunity covenant prescribed in Subsection (A) hereof shall not be deemed a responsive or responsible bidder and shall not be awarded the contract or subcontract, by the Department of Public Works nor by any other State contracting agencies, authorities, department or commissions which adopt this Regulation by rules, regulation or other appropriate action (hereinafter collectively referred to as “State Contracting Agency”)
D. With respect to compliance with the provision of this Regulation and of the orders of the State EEO Coordinator, it shall be no excuse that the union with which the contractor subcontractor subject to the provisions of this Regulation (hereinafter collectively referred to as “State Contractors”) has a collective bargaining agreement providing for an exclusive hiring hall or other referral agreement, failed to refer minority group employees. Discrimination in referral for employment, even if pursuant to provisions of a collective bargaining agreement, is prohibited by Ohio Laws Against Discrimination, Chapter 4112, Ohio Revised Code, the National Code, the National Labor Relations Act and Title VII of the Federal Civil Rights of 1964. Accordingly, State Contractors have a responsibility to provide equal employment opportunity and to comply with this Regulation if they wish to participate in State involved contracts. To the extent they have delegated the responsibility for some of their employment practices to some other organization or agency which prevents them from meeting their obligations pursuant to this Regulation, such State Contractors shall not be considered to be in-compliance with this Regulation or the implementing rules, regulations and orders of the State EEO Coordinator.
Nothing contained in this Regulation shall preclude a State Contractor from complying with hiring hall or apprenticeship provisions in any applicable collective bargaining agreement shall send journeymen and trainees to the union for referral, or to the apprenticeship program for admission.
Provide, however where the practices of a union or apprenticeship program will result in the exclusion of minority group persons or the failure to refer minority group persons, so that the State Coordinator shall then consider the employment of journeymen and apprentices without regard to such agreement or arrangement, as authorized in Section 153.591, Revised Code, Section 203 (A) Each State Contractor having a contract containing the provisions prescribe in Section 202 (hereinafter referred to as “State Contracts”) shall file State compliance reports with the State Contracting Agency and with the State EEO Coordinator when directed by said Coordinator pursuant to implementing rule or regulation. State compliance reports shall be filed within such times and shall contain such information as to employment practices, policies, statistics and programs (including Affirmation Action Programs as required in Part IV of this Regulation) of the State Contractor, and shall be in such form, as said Coordinator may be implementing rule or regulation prescribe: Provide that insofar as possible and consistent with the policy of this Regulation, the State compliance reports shall harmonize with the requirements of Federal compliance reports filed pursuant to President’s Executive Order 11246, as amended and the rules and regulations thereunder: and provided further that nothing herein shall prohibit the State EEO Coordinator from requiring where appropriate that State compliance report be more comprehensive or more frequent than Federal compliance reports.
E. Bidders or prospective State Contractors may be required to state whether they have participated in any previous contract subject to the provisions of the Regulation, or any preceding similar Governors Executive Order, or of the Presidents Executive Order, and that event or submit, on behalf of themselves and their proposed subcontractors, compliance reports prior to or as an initial part of their bidder negotiation of a contract.
F. Whenever a State Contractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency referring workers or providing or supervising apprenticeship or training for such workers (hereinafter collectively referred to as “Labor Union”), the State compliance report shall include such information as to such Labor Union’s practices and policies affecting compliance as the State EEO Coordinator may be implementing rule or regulation prescribed. Provided that to the extent such information is within the exclusive possession of a Labor Union and such Labor Union shall fail or refuse to furnish such information to the Contractor, the Contractor shall so certify to The State Contracting Agency as part of its State compliance report and shall set forth what effects he has made to obtain such information.
G. The State Contracting Agency or the State EEO Coordinator may direct that any bidder or prospective State Contractor shall submit, as part of his State compliance report, a statement in writing, signed by an authorized officer or agent on behalf of any Labor Union with which the bidder or prospective State Contractor deals, with supporting information, to the effect that said Unions practices and policies do not discriminate on the grounds of race, color, religion, national origin, ancestry, sex, or handicapped, or Vietnam Veteran, and that the union either will affirmatively cooperation in the implementation of the policy and provisions of the Regulation or that he consents and agreed that recruitment, employment, and terms and conditions or employment under the proposed State Contract shall be in accordance with the purposes and provisions of this Regulation. In the event that the Labor Union shall fail or refuse to execute such a statement, the State compliance report shall so certify and set forth what efforts have been made to secure such a statement including a description of the reasons given by the Labor Union for not signing such statement and such additional factual material as the State Contracting Agency or the State EEO Coordinator may require.
H. Whenever a State Contractor has hiring hall or other referral agreement or arrangement with a Labor Union, the State Contracting Agency or State EEO Coordinator may direct that such Contractor shall submit with his/her bid, a statement on a form approved by the State EEO Coordinator, signed by an authorized Labor Union official. In such statement the Labor Union shall agree to take such action as may be necessary with respect to referral and employment or minority group persons in order to enable such Contractor to meet his obligations under this Regulation. If the Labor Union fails or refuses to sign this statement, the State Contractor will document his/her efforts to obtain such statement, including a description of reasons given by the Labor Union for not signing such statement, submit such documentation together with his bid.
I. Failure or refusal of a Labor Union to sign the statement referred to in Subsection (G) an (H) hereof does not excuse a State Contractor from his obligations to comply with the terms of this Regulation.
SECTION 204.
The State EEO Coordinator may, by rule or regulation, exempt from any of the provisions of Section 202 hereof certain classes of contracts, subcontracts, or purchase order. (1) for standard commercial supplier or raw materials: (2) involving less than specified amounts of money or specified numbers of workers: or (3) to the extent that they involve subcontractors below a specified tier. Said Coordinator may pursuant to rule or regulation provide for the exemption of facilities and job sites a State Coordinator which are in all respects separate and distinct for from activities of such Contractor related to the performance of the State Contract. Provided that such an exemption of facilities and job sites will not interfere with or impede the effectual of the purposes of this Regulation: And provide further, that in the absence of such an exemption, all facilities and job sites located within the State of Ohio shall be covered by the provision of the Regulation.
Appendix A. State Equal Employment Opportunity Covenant (For State Contracts)
“During the performance of this contract, all contractors (prime and subcontractors) agree as follows:”
▪ The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, or handicapped, or Vietnam Veteran. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, ancestry, sex, or handicapped, or Vietnam Veteran. Such action shall include, but is not limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. The contractor acres to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this non-discrimination clause.
* The contractor will, in all solicitations or advertisements for employees place by or on behalf of the contractor, state that all qualified applicants receive consideration for employment without regard to race, color, religion, national origin, ancestry, sex, or handicapped, or Vietnam Veteran.
* The contractor will send to each labor union or representative or workers with which he has a collective bargaining agreement or other contractor or understanding, a notice, to be provided by the contracting officer, advising the labor union or workers’ representative of the contractors commitments under Section 202 of the Director of Department of Public Works’ Rule and Regulation of Equal Employment Opportunity (hereinafter referred to as “DPW Regulations of EEO”), and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
* The contractor will comply with all provisions of the DPW Regulation on EEO, and of the implementing rules, regulations, and applicable orders of the State Equal Employment Opportunity Coordinator.
* The contractor agrees that he will fully cooperate with the State Equal Employment Opportunity Coordinator, with any other official or agency of the State or Federal Government which seeks to eliminate unlawful employment discrimination, and with all other State and Federal efforts to assure equal employment practices under this contract, and said contractor shall comply promptly with all request and directions from the State of Ohio or any of its officials and agencies in this regard, both before and during performance.
* Full cooperation as expressed in clause (5) , above, shall include but not be limited to, being a witness and permitting employees to be witnesses and complainants in any proceeding involving questions of unlawful employment practice, furnishing all information and reports required by the DPW Regulation on EEO, and by the rules, regulations, and orders of the State EEO Coordinator pursuant thereto, and permitting access to his books, records and accounts by the Contracting Agency and the State Equal Employment Opportunity Coordinator for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
* In the event of the contractor’s noncompliance with the non-discrimination clauses of this contract or with any of such rules, regulations, or order, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further State Contracts in accordance with procedures authorized in the DPW Regulation on EEO, and such other sanctions may be imposed and remedies instituted as provided in said Regulation or by rule, regulation, or order of the State EEO Coordinator, or as otherwise provided by law. In the event this contract is terminated for a material breach of said Regulation, the contractor shall become liable for any and all damaged which shall accrue to the State of Ohio as a result of said breach.
* The contractor will include the provisions of Paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulation, or other State Equal Employment Coordinator issued pursuant to Section 204 of the DPW Regulation on EEO, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontractor or purchase order as the Contracting Agency may direct as a means of enforcing such provisions including sanctions for noncompliance: provided, however, that in the events the contractor becomes involved in, or is threatened with, litigation with subcontractor, vendor, or other party as a result of such direction by the contracting agency, the contract may request the State of Ohio to enter into such litigation to protect the interest of the State.
See the following attachments:
Questioning Applicants for Employment & Membership in Labor Organizations (Pamphlet)
Federal Review Notification Letter
Sample Follow-up Review Notice
Contractor’s Self-Analysis Packet
Sample In-compliance Contract Compliance Review
Sample Noncompliance Contract Compliance Review
Sample Follow-up Compliance Review
CONTRACT COMPLIANCE REVIEW NOTEBOOK
CREATION OF THE REVIEW NOTEBOOK IS MANDATORY
Information obtained from the contractor shall be copied and ONLY the copies organized in notebook fashion. Organize the notebook using the following tabs in the order in which they are listed. This enables the reviewer to cover all aspects of the review and standardizes the process. During the contract compliance review on-site visit, each section of the notebook shall be discussed with the contractor.
NOTICE
FIRM REPRESENTATIVES AT REVIEW
LEGAL AUTHORITIES
CONTRACTOR/PROJECT INFORMATION
PROJECTS ALL
UNION AFFILIATIONS
REFERRAL SOURCES
RECRUITMENT ACTIVITY
TRAINING
OJTs and APPRENTICES
PROJECT/EA NEW HIRES BY NAME
PROJECT/EA WORK HOURS AND NEW HIRES
STATEWIDE NEW HIRES BY NAME
STATEWIDE WORK HOURS & NEW HIRES
CENSUS/EA/MSA INFORMATION
EEO ANALYSIS QUESTIONNAIRE
COMPANY PERSONNEL OPERATION
EEO POLICY
SEXUAL HARASSMENT POLICY
EEO MEETING DOCUMENTATION
PROJECT WORKFORCE
STWD./AGGREGATE WORKFORCE
PR 1391
SUBCONTRACT & PURCHASE ORDER
PROJECT SUBCONTRACTOR INFORMATION
COMPLIANCE REVIEW HISTORY
STATISTICAL ANALYSIS
DBE CONTRACTORS CONTACTED
DBE SUB/SUB-SUB VERIFICATION
EEO OFFICER’S DUTIES/AUTHORITY
EMPLOYMENT APPLICATION
APPLICANT FLOW CHART
MASTER PAYROLL
PROMOTIONS
PREVAILING WAGE VERIFICATION
NONSEGREGATED FACILITIES VERIFICATION
SAFETY: ACCIDENT PREVENTION
CONTRACT COMPLIANCE AFFIDAVIT
OCRC/EEOC CASES
STAFF AUTHORIZED TO HIRE, SUPERVISE
TERMINATE, PROMOTE, ETC.
NEW HIRE PACKET
DOCUMENTATION OF INDOCTRINATION OF STAFF
AUTHORIZED TO HIRE
ON-SITE INTERVIEW FORMS
MINOR DEFICIENCIES
SUPPORTING DOCUMENTATION
AAEVAL (COPY)
SHOW CAUSE NOTICE & MEETING MINUTES
APPROVED CORRECTIVE ACTION PLAN
FOLLOW-UP REVIEW WITH FINAL DETERMINATION
Keep all contractor information in the notebook until the concurrence letter has been received from the Office of Contracts. If the contractor is found in Noncompliance, all information collected for the original review shall remain in the notebook until the follow-up review has been conducted and concurrence letter is received. Additional tabs may be added, as needed.
Instructions for completing the AAEVAL Final Determination Report
The Affirmative Action Evaluation Final Determination Report must be submitted to the External Civil Rights Manager within 15 calendar days of the Exit Conference.
NOTE:
* If the contractor has fully complied with all items listed under the required activities, only mark “deficiency - no.”
* If the contractor has minimally complied with a required activity mark “some, but insufficient” and add a note explaining the item. The note may be placed on the same page and/or listed under “observations” on page 23. You must also mark the appropriate recommendation and “deficiency - yes.”
* If the contractor has not complied with any items listed under the required activity, mark “deficiency - yes” and mark the appropriate recommendations.
* Note all deficiencies starting on page 23.
Page # Section
COVER SHEET Fill in all requested information.
1-27 In each section, ascertain to what point the contractor has complied with the required EEO/AA obligations. Check the appropriate Recommendations.
“Some, but insufficient” applies when the contractor has not fully complied with each “Required Activity.”
Determine if the contractor is deficient in the area being discussed and mark the appropriate box.
Check the recommendations that apply.
8 Utilization Information: State which Economic Area/Project the review covers. Use a separate sheet for each additional EA/Project. From the information provided to you in the contractor’s self analysis packet, complete each table by listing the hours worked and percentage of total hours in the top table and the number of new hires/percentages in the bottom table.
10 Repeat the same process as for page 6, but use STATEWIDE information instead of EA/Project. Fill in the appropriate Metropolitan Statistical Area (MSA) and the appropriate minority percentage for that area.
28 Observations, Findings, Detailed List of Good Faith Efforts Made by the Contractor, Corrective Actions Required to be Taken, and Compliance Determination Recommendation:
Address each of the five areas identified.
Additional requirements:
* Discuss the review with the DCE and obtain concurrence or an IOC written by the DCE, explaining his/her non-concurrence.
* Copy the entire packet.
* Keep one copy and send the original to Central Office, Attention: External Civil Rights Manager in the Office of Contracts, within 15 days of conducting the Exit Conference.
Please Note: Do not include any supporting documentation or the Contractor’s Self Analysis Packet with the Final AAEVAL submitted to Central Office.
DISADVANTAGED BUSINESS ENTERPRISE (DBE) AND COMMERCIALLY USEFUL FUNCTION (CUF) MONITORING
COMMERCIALLY USEFUL FUNCTION (49 CFR, Part 26)
One of the key requirements of the DBE Program is that a commercially useful function be performed. This is defined as: “Being responsible for execution of a contract or a distinct element of the work by actually performing, managing and supervising the work involved.” This requirement is monitored by ODOT field personnel who are assigned to the project and by the DEEOCC. ODOT personnel look at who supervises the employees, who pays the employees, and who owns the equipment used by the DBE. Contractors, DBEs and all employees are required to fully cooperate with ODOT personnel conducting the field audits.
Failure of a DBE to perform a commercially useful function will result in that work not being counted toward the prime contractor’s DBE goal. In certain cases it could result in ODOT not paying the prime contractor for the work, or it could lead to removal of eligibility of the DBE. In cases of deliberate fraud, it could lead to criminal prosecution of both the prime contractor and the DBE firm.
Situations that could cause problems are shared employees, supervision of the DBE crew by another contractor, use of the prime contractor’s equipment, use of other non-owned equipment by the DBE without a lease, materials for the DBE ordered or paid for by the prime contractor, or an item of work being done jointly by the DBE and another contractor.
Management: The DBE must manage the work that has been contracted. Management includes scheduling daily operations, ordering equipment and materials, preparing and submitting certified payrolls, and hiring and firing employees. All work must be performed with the DBE’s own workforce. The DBE owner must supervise daily operations either personally or with a full time, skilled and knowledgeable superintendent. The superintendent must be under the DBE’s direct supervision. The DBE owner must make all operational and managerial decisions of the firm.
Materials: The DBE shall negotiate the cost, arrange delivery and pay for the materials and supplies for the job. ODOT will review invoices to see they are billed and paid by the DBE. The DBE must determine the quantity of the material and be responsible for the quality of the material. Two-party checks for payment may be made to the DBE and the supplier only if approved by ODOT in advance. No credit toward the DBE goal will be given to the cost of materials or supplies paid directly by the prime contractor for the DBE.
Employees: To be considered independent businesses, DBEs shall keep a regular workforce. DBEs shall not “share” employees with non-DBE contractors, especially the prime contractor.
COUNTING DBE PARTICIPATION (49 CFR, Part 26)
DBE credit will be counted only for work performed by the DBE firm.
DBE Manufacturer – Count 100 percent of the value paid for materials furnished which become a permanent part of the project. A manufacturer is a firm that owns and operates the facilities to produce a product required by the contract and purchased by the contractor.
DBE Supplier – Count 60 percent of the value paid for material furnished which becomes a permanent part of the project. A supplier sells goods to the general public and maintains an inventory at an owned or leased warehouse or store.
DBE Broker – Count 100 percent of the fee or commission received by the DBE broker for the material purchased and resold to the contractor which becomes a permanent part of the project. A broker does not manufacture or supply on a regular basis.
DBE Trucker – Count 100 percent of the amount paid to the DBE trucker if all of the trucking is performed by the DBE, with employees of the DBE, using equipment owned or long-term leased by the DBE. If the DBE uses DBE certified owner-operators to supplement owned trucks, the DBE must be responsible for management and supervision of the entire trucking operation. The subcontract must not be a contrived arrangement to meet the DBE goal. The DBE will be considered a broker, and only commissions received will count toward the goal, if the DBE is not in full control or does not have any DBE employees or trucks on the job.
In order for a DBE trucker to be credited with the delivered price of materials/supplies, the DBE trucker must also be certified as a supplier or manufacturer of the material, be responsible for the quality standards of the material, and negotiate the material price and select the source. Certified DBE suppliers will be designated in the DBE directory.
DBE Contractor – Count 100 percent of the amount paid to a DBE contractor for labor and materials provided to perform a defined and clearly measurable portion of the contract. The work must be performed by the DBE’s own employees and the DBE must order and pay for all supplies and materials.
Guidance Concerning Good Faith Efforts for Obtaining DBE Participation
When ODOT establishes a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if the efforts were not fully successful. Please see Attachment “DBE Proposal Note”.
Good Faith Efforts When A DBE Is Replaced On a Contract
ODOT will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. ODOT will require the prime contractor to notify the DEEOCC immediately of the DBE’s inability or unwillingness to perform and provide reasonable documentation. In this situation, ODOT will require the prime contractor to obtain prior approval of the replacement DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, ODOT will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, ODOT may issue a termination for default proceeding.
In any situation in which ODOT has established a contract goal, 49 CFR Part 26 requires ODOT to use the good faith efforts mechanism of this part. ODOT will make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. In making this judgment, ODOT will consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. ODOT’s determination concerning the sufficiency of a firm’s good faith efforts is a judgment call: meeting quantitative formulas is not required.
The following is a list of types of actions which ODOT will consider as part of the bidder's good faith efforts to obtain DBE participation. It is not a mandatory checklist, nor an exclusive or exhaustive listing. Other factors or types of efforts may be relevant in appropriate cases.
A. Soliciting through all reasonable and available means (e.g. attendance at prebid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces.
C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation.
D. Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work.
A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non- solicitation of bids in the contractor's efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services.
H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, State, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs.
In determining whether a bidder has made good faith efforts, ODOT may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, ODOT may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, ODOT may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts.
See the following attachments:
DBE Proposal Note
Commercially Useful Function (CUF) Overview
Notices:
Trucking Rules October 17, 2000
Truck Leasing May 14, 2001
DBE Waiver Process May 10, 2002
Commercially Useful Function (CUF) July 18, 2002
DBE Material Suppliers January 31, 2006
Two Party Checks April 21, 2006
Drop Shipments by DBE Material Suppliers May 22, 2006
DBE Material Suppliers and CUF March 7, 2005
Red Flags
“Counting DBE Goal Credit”
CUF Investigative Process
CUF Questionnaire
CUF Guidelines
Website: Unified Certification Program DBE Contractors,
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