Whereas the Committee on Government Contracts is authorized by Executive Order 10479, as amended [set out as a note preceding section 1 of this title], to make recommendations to the contracting agencies for improving and making more effective and nondiscrimination provision of Government contracts, and Whereas the Committee on Government Contracts, in consultation with the principal contracting agencies of the Government has recommended that in the future the contracting agencies of the Government include in place of, and as a means of better explaining, the present nondiscrimination provision of Government contracts, the following provision:

In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, color, or national origin. The aforesaid provision shall include, but not be 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 agrees to post hereafter in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause.

The contractor further agrees to insert the foregoing provision in all subcontracts hereunder, except subcontracts for standard commercial supplies or raw materials.

Now, therefore, by virtue of the authority vested in me by the Constitution and statutes, and as President of the United States, and in order to clarify the provisions of the existing orders, it is ordered as follows:

SECTION 1. The contract provision relating to nondiscrimination in employment, recommended by the Committee on Government Contracts, is hereby approved.

SEC. 2. The contracting agencies of the Government shall hereafter include the approved nondiscrimination provision in all contracts executed by them on and after a date 90 days subsequent to the date of this order, except:

a. Contracts and subcontracts to be performed outside the United States where no recruitment of workers within the limits of the United States is involved; and

b. Contracts and subcontracts to meet other special requirements or emergencies, if recommended by the Committee on Government Contracts.

SEC. 3. The General Services Administration shall take appropriate action to revise the standard Government contract forms to accord with the provisions of this order.

EX. ORD. NO. 10479. GOVERNMENT CONTRACT COMMITTEE

Ex. Ord. No. 10479, Aug. 17, 1953, 18 F. R. 4899, as amended by Ex. Ord. No. 10482, Aug. 15, 1953, 18 F. R. 4944; Ex. Ord. No. 10733, Oct. 10, 1957, 22 F. R. 8135, provided:

SECTION 1. The head of each contracting agency of the Government of the United States shall be primarily responsible for obtaining compliance by any contractor or subcontractor with the said nondiscrimination provisions of any contract entered into, amended, or modified by his agency and of any subcontract thereunder, and shall take appropriate measures to bring about the said compliance.

SEC. 2. The head of each contracting agency shall take appropriate measures, including but not limited to the establishment of compliance procedures, to carry out the responsibility set forth in section 1 hereof.

SEC. 3. There is hereby established the Government Contract Committee, hereinafter referred to as the Committee. The Committee shall be composed of sixteen members as follows:

(a) One representative of the following-named agencies to be designated by the respective heads of such agencies: the Atomic Engery Commission, the Department of Commerce, the Department of Defense, the Department of Justice, the Department of Labor, and the General Services Administration.

(b) Ten other members to be appointed by the President. The Chairman and Vice Chairman, and an Executive Vice Chairman who shall assist the Chairman and Vice Chairman in the carrying out of the functions of the Committee, shall be designated by the President.

SEC. 4. The Committee shall make recommendations to the contracting agencies for improving and making more effective the nondiscrimination provisions of government contracts. All contracting agencies of the Government

are directed and authorized to cooperate with the Committee and, to the extent permitted by law, to furnish the Committee such information and assistance as it may require in the performance of its functions under this order. The Committee shall establish such rules as may be necessary for the performance of its functions under this order, and shall make annual or semiannual reports on its progress to the President.

SEC. 5. The Committee may receive complaints of alleged violations of the nondiscrimination provisions of government contracts. Complaints received shall be transmitted by the Committee to the appropriate contracting agencies to be processed in accordance with the agencies' procedure for handling such complaints. Each contracting agency shall report to the Committee the action taken with respect to all complaints received by the agency, including those transmitted by the Committee. The Committee shall review and analyze the reports submitted to it by the contracting agencies.

SEC. 6. The Committee shall encourage the furtherance of an educational program by employer, labor, civic, educational, religious, and other voluntary nongovernmental groups in order to eliminate or reduce the basic causes and costs of discrimination in employment.

SEC. 7. The Committee is authorized to establish and maintain cooperative relationship with agencies of state and local governments, as well as with nongovernmental bodies, to assist in achieving the purposes of this order.

SEC. 8. The government agencies (except the Department of Justice) designated in section 3 (a) of this order shall defray such necessary expenses of the Committee as may be authorized by law, including section 214 of the act of May 3, 1945, 59 Stat. 134 [section 691 of Title 31], provided that no agency shall supply more than 50% of the funds necessary to carry out the purposes of this order. The Department of Labor shall provide necessary space and facilities for the Committee. In the case of the Department of Justice the contribution shall be limited to the rendering of legal services.

SEC. 9. Executive Order No. 10308 of December 5, 1951 (16 F. R. 12303) [set out as a note under section 2153 of Title 50, Appendix] is hereby revoked and the Committee on Government Contract Compliance established thereby is abolished. All records and property of the said Committee are transferred to the Government Contract Committee. The latter Committee shall wind up any outstanding affairs of the abolished Committee.

EXECUTIVE ORDER 10789

AUTHORIZING AGENCIES OF THE GOVERNMENT TO EXERCISE CERTAIN CONTRACTING AUTHORITY IN CONNECTION WITH NATIONAL-DEFENSE FUNCTIONS AND PRESCRIBING REGULATIONS GOVERNING THE EXERCISE OF SUCH AUTHORITY

By virtue of the authority vested in me by the act of August 28, 1958, 72 Stat. 972, hereinafter called the act, and as President of the United States, and in view of the existing national emergency declared by Proclamation No. 29141 of December 16, 1950, and deeming that such action will facilitate the national defense, it is hereby ordered as follows:

PART I-DEPARTMENT OF DEFENSE

Under such regulations, which shall be uniform to the extent practicable, as may be prescribed or approved by the Secretary of Defense:

1. The Department of Defense is authorized, within the limits of the amounts appropriated and the contract authorization provided therefor, to enter into contracts and into amendments or modifications of contracts heretofore or hereafter made, and to make advance payments thereon, without regard to the provisions of law relating to the making, performance, amendment, or modification of contracts, whenever, in the judgment of the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force, or the duly authorized representative of any such Secretary, the national defense will be facilitated thereby.

2. The Secretaries of Defense, the Army, the Navy, and the Air Force, respectively, may exercise the authority herein conferred and, in their discretion and by their direction, may delegate such authority to any other military or

13 CFR, 1949-1953 Comp.

civilian officers or officials of their respective departments, and may confer upon any such military or civilian officers or officials the power to make further delegations of such authority within their respective commands or organizations: Provided, that the authority herein conferred shall not be utilized to obligate the United States in an amount in excess of $50,000 without approval by an official at or above the level of an Assistant Secretary or his Deputy, or by a departmental Contract Adjustment Board.

3. The contracts hereby authorized to be made shall include agreements of all kinds (whether in the form of letters of intent, purchase orders, or otherwise) for all types and kinds of property or services necessary, appropriate, or convenient for the national defense, or for the invention, development, or production of, or research concerning, any such property or services, including, but not limited to, aircraft, missiles, buildings, vessels, arms, armament, equipment or supplies of any kind, or any portion thereof, including plans, spare parts and equipment therefor, materials, supplies, facilities, utilities, machinery, machine tools, and any other equipment without any restriction of any kind as to type, character, location, or form.

4. The Department of Defense may by agreement modify or amend or settle claims under contracts heretofore or hereafter made, may make advance payments upon such contracts of any portion of the contract price, and may enter into agreements with contractors or obligors modifying or releasing accrued obligations of any sort, including accrued liquidated damages or liability under surety or other bonds. Amendments or modifications of contracts may be with or without consideration and may be utilized to accomplish the same things as any original contract could have accomplished hereunder, irrespective of the time or circumstances of the making, or the form, of the contract amended or modified, or of the amending or modifying contract, and irrespective of rights which may have accrued under the contract or the amendments or modifications thereof.

5. Proper records of all actions taken under the authority of the act shall be maintained within the Department of Defense. The Secretaries of Defense, the Army, the Navy, and the Air Force shall make such records available for public inspection except to the extent that they, or their duly authorized representatives, may respectively deem the disclosure of information therein to be detrimental to the national security.

6. The Department of Defense shall, by March 15 of each year, report to the Congress all actions taken within that department under the authority of the act during the preceding calendar year. With respect to actions which involve actual or potential cost to the United States in excess of $50,000, the report shall (except as the disclosure of such information may be deemed to be detrimental to the national security)—

(a) name the contractor;

(b) state the actual cost or estimated potential cost involved; (c) describe the property or services involved; and

(d) state further the circumstances justifying the action taken.

7. There shall be no discrimination in any act performed hereunder against any person on the ground of race, religion, color, or national origin, and all contracts entered into, amended, or modified hereunder shall contain such nondiscrimination provision as otherwise may be required by statute or Executive

order.

8. No claim against the United States arising under any purchase or contract made under the authority of the act and this order shall be assigned except in accordance with the Assignment of Claims Act of 1940 (54 Stat. 1029), as amended. 9. Advance payments shall be made hereunder only upon obtaining adequate security.

10. Every contract entered into, amended, or modified pursuant to this order shall contain a warranty by the contractor in substantially the following terms: "The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except bona-fide employees or bona-fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee."

11. All contracts entered into, amended, or modified pursuant to authority of this order shall include a clause to the effect that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment, have access to and the right to examine any directly pertinent books, documents, papers, and records of the contractor or any of his subcontractors engaged in the performance of, and involving transactions related to, such contracts or subcontracts.

12. Nothing herein contained shall be construed to constitute authorization hereunder for

(a) the use of the cost-plus-a-percentage-of-cost system of contracting;

(b) any contract in violation of existing law relating to limitation of profits or fees;

(c) the negotiation of purchases of or contracts for property or services required by law to be procured by formal advertising and competitive bidding; (d) the waiver of any bid, payment, performance, or other bond required by law;

(c) the amendment of a contract negotiated under section 2304(a)(15) of title 10 of the United States Code to increase the contract price to an amount higher than the lowest rejected bid of any responsible bidder; or

(f) the formalization of an informal commitment, unless the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force, or the duly authorized representative of any such Secretary, finds that at the time the commitment was made it was impracticable to use normal procurement procedures.

13. The provisions of the Walsh-Healey Act (49 Stat. 2036), as amended, the Davis-Bacon Act (49 Stat. 1011), as amended, the Copeland Act (48 Stat. 948), as amended, and the Eight Hour Law (37 Stat. 137), as amended, if otherwise applicable, shall apply to contracts made and performed under the authority of this order.

14. Nothing herein contained shall prejudice anything heretofore done under Executive Order No. 90012 of December 27, 1941, or Executive Order No. 10210' of February 2, 1951, or any amendments or extensions thereof, or the continuance in force of an action heretofore taken under those orders or any amendments or extensions thereof.

15. Nothing herein contained shall prejudice any other authority which the Department of Defense may have to enter into, amend, or modify contracts, and to make advance payments.

PART II-EXTENSION OF PROVISIONS OF PARAGRAPHS 1-14

21. Subject to the limitations and regulations contained in paragraphs 1 to 14, inclusive, hereof, and under any regulations prescribed by him in pursuance of the provisions of paragraph 22 hereof, the head of each of the followingnamed agencies is authorized to perform or exercise as to his agency, independently of any Secretary referred to in the said paragraphs 1 to 14, all of the functions and authority vested by those paragraphs in the Secretaries mentioned therein:

Department of the Treasury

Department of the Interior

Department of Agriculture

Department of Commerce

Atomic Energy Commission

General Services Administration

Office of Civil and Defense Mobilization

National Aeronautics and Space Administration

Federal Aviation Agency

Tennessee Valley Authority

Government Printing Office

22. The head of each agency named in paragraph 21 hereof is authorized to prescribe regulations governing the carrying out of the functions and authority vested with respect to his agency by the provisions of paragraph 21 hereof. Such regulations shall, to the extent practicable, be uniform with the regulations prescribed or approved by the Secretary of Defense under the provisions of Part I of this order.

2 CFR, 1943 Cum. Supp. CFR, 1949-1953 Comp.

23. Nothing contained herein shall prejudice any other authority which any agency named in paragraph 21 hereof may have to enter into, amend, or modify contracts and to make advance payments.

24. Nothing contained in this Part shall constitute authorization thereunder for the amendment of a contract negotiated under section 302 (c)(14) of the Federal Property and Administrative Services Act of 1949 (63 Stat. 394), as amended by section 2(b) of the act of August 28, 1958, 72 Stat. 966, to increase the contract price to an amount higher than the lowest rejected bid of any responsible bidder. DWIGHT D. EISENHOWER.

THE WHITE HOUSE, November 14, 1958.

SUBPART H-NONDISCRIMINATION IN EMPLOYMENT [REVISED]

SOURCE: §§ 12.801 to 12.806-7 contained in Amendment 16, 21 F.R. 9350, Nov. 30, 1956, except as otherwise noted. Prior Amendments

1955 20 F.R. 3500, May 19.

§ 12.801 Policy. The President has stated that the policy of the Government is to promote equal employment opportunity for all qualified persons employed or seeking employment on Government contracts because such persons are entitled to fair and equitable treatment in all aspects of employment on work paid for from public funds, and that contracting agencies and Government contractors are obligated to insure compliance with, and successful execution of, the equal employment opportunity program of the Government. In stating this policy, the President has directed that the head of each contracting agency shall be primarily responsible for obtaining compliance by any contractor or subcontractor and shall take the appropriate measures to bring about compliance. The President's Committee on Government Contracts provides guidance to contracting agencies concerning the program. The Committee has announced that the objectives of the program can best be achieved through the processes of education, persuasion, mediation, and conciliation. (Executive Orders 8802 of June 25, 1941, 9346 of May 27, 1943, 10479 of August 13, 1953, and 10557 of September 3, 1954.)

§ 12.802 Basic requirement.

Contracts entered into by the Departments,

except as set forth in § 12.804, shall contain the following clause:

"NONDISCRIMINATION IN EMPLOYMENT

"(a) In connection with the performance of work under this contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, color, or national origin. The aforesaid provision shall include, but not be 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 agrees to post hereafter in conspicuous places, available for employees and applicants for employment, notices to be provided by the Contracting Officer setting forth the provisions of the nondiscrimination clause.

"(b) The Contractor further agrees to insert the foregoing provision in all subcontracts hereunder, except subcontracts for standard commercial supplies or raw materials."

§ 12.803. Applicability. The nondiscrimination requirements are applicable to contracts and first-tier subcontracts as herein provided.

(a) The clause set forth in § 12.802 shall be included in all contracts involving the employment of labor, except:

(1) The clause shall not be included in—

(i) Contracts to be performed outside the United States where no recruitment of workers within the United States is involved;

(ii) Contracts to meet special requirements or emergencies, if recommended by the President's Committee on Government Contracts (see § 12.804); and (iii) Purchase orders on Standard Form 44.

(2) The clause shall be modified:

(i) In purchase orders for $1,000 or less which are not within the above exceptions, by deleting the last sentence of paragraph (a) and all of paragraph (b); (ii) In contracts for $5,000 or less, other than purchase orders for $1,000 or less, by deleting the last sentence of paragraph (a) when in the judgment of the