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ADM-1.07 - EEO Certification

EEO CERTIFICATION
Administrative Rule Adopted by Bureau Pursuant to Rule-Making Authority
ARB-ADM-1.07

 
Section 1 - Definitions
 
The following definitions apply to the City of Portland’s EEO certification rules contained in this Chapter:
 
(a) Bureau: The Bureau of Purchases.
 
(b) City: The City of Portland, Oregon.
 
(c) Contract: A contract awarded by the City, including any subsequent changes, modifications or alterations. A contract includes a purchase order or agreement to acquire goods and services.
 
(d) Contractor: Any person, vendor or entity of any type that executes a contract with the City.
 
(e) EEO Employer: Any contractor that has received certification from the Bureau that it meets established criteria as an Equal Employment Opportunity Employer and who has not engaged in discrimination prohibited by the City Code.
 
(f) Subcontract: An agreement to furnish labor, services or supplies to a Contractor in connection with a Contract.
 
(g) Subcontractor: A person, vendor or entity of any type that executes, or wishes to execute, an agreement with a Contractor to provide labor, services or supplies in connection with the Contract.

 
Section 2 - Scope of Coverage
 
These rules apply to all contractors and subcontractors who are required by the City Code to be certified as EEO Employers.
 

 
Section 3 - Requirement of Certification
 
Contracts and subcontracts shall be awarded only to those contractors or subcontractors who are EEO certified.
 

 
Section 4 - Exemptions
 
EEO certification is not required if:
 
(a) The fixed price for the contract or subcontract is less than $2,500 and the total of all contracts or subcontracts awarded to the contractor or subcontractor has not exceeded $2,500 in any single fiscal year. For purposes of this section a fiscal year shall begin on the first day of July of one year and end on the last day of June of the following year.
 
(b) Work under the contract or subcontract was performed outside the United States;
 
(c) Work under the contract or subcontract was performed by employees of a State or by a unit of local government;
 
(d) The contract or subcontract price is uncertain, such as one for indefinite quantities, unless at the time of contract award the Bureau with whom the contract is awarded has reason to believe that the value of the contract or subcontract will be more than $2,500 in any single fiscal year;
 
(e) The contract or subcontract is awarded to an educational institution if that institution has a practice of hiring employees of a particular religion and the institution is in whole, or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association or society. The primary thrust of this provision is directed at religiously oriented church-related colleges and universities and should be so interpreted;
 
(f) The Purchasing Agent has determined that:
i) it would be in the best interests of the City to permit the award of a contract or subcontract to the contractor or subcontractor,
ii) that unique, unusual, or emergency conditions exist;
iii) that such conditions are brought to the attention of the City Council by the Purchasing Agent as soon as possible; and
iv) that the Council subsequently approves or ratifies the contract or subcontract.

 
Section 5 - Application Process

(a) All contractors and subcontractors who work in the construction industry and who have twenty-five (25) or more employees and who are located within the Portland metropolitan area shall submit information to the Bureau regarding its workforce each fiscal year if they want to obtain EEO certification. That information shall include:
(i) the number of employees;
(ii) the trade in which the employees work or the work generally performed by them;
(iii) their race and gender;
(iv) any other information that the Bureau deems relevant to the determination of EEO certification.
(b) Other construction contractors or subcontractors who do not have twenty-five (25) or more employees or are located outside the Portland metropolitan area shall provide information relevant to their EEO certification about their firm every two years to the Bureau. That information shall include:
(i) the number of employees;
(ii) the trade in which the employees work or the work generally performed by them;
(iii) their race and gender;
(iv) any other information that the Bureau deems relevant to the determination of EEO certification.
(c) Other contractors or subcontractors, not mentioned in subsection (a) or (b) above, shall provide information relevant to their EEO certification about their firm every two years to the Bureau. If the contractor has fewer than 50 employees, the Bureau may simply require the contractor to sign a Statement of Non-Discrimination and is not required to conduct any review of the contractor’s workforce.
All contractors and subcontractors shall sign a Statement of Non-Discrimination on a form devised by the Bureau.

 
Section 6 - Review of Initial EEO Applications and their Renewal
 
(a) The Bureau will review the information submitted on EEO applications and ensure that the applicants have signed the Statement of Non-Discrimination. After such review, the Bureau may approve, conditionally approve, or deny the request for EEO certification or recertification as it deems appropriate if the information requested appears complete. If the information does not appear complete or raises other issues that the Bureau needs to review, the Bureau may request additional information before making its decision regarding EEO certification.
 
(b) In making its review, the Bureau may utilize census information or other relevant data to help it determine whether the workforce of contractors or subcontractors identified in the previous section (Application Process) shows underutilization of available minority and women employees.
 
(c) If underutilization is not present or if the Bureau is unable to determine that underutilization is present, EEO certification shall be granted for a period of one or two years pursuant to section (a) above. That certification will continue beyond the renewal date if the Bureau is unable to act on a contractor’s request for renewal of its certification status before the certification period has ended. However, certification will not continue beyond that renewal date if the contractor’s or subcontractor’s actions cause the certification to lapse.
 
(d) If the workforce or other data provided to the bureau shows that underutilization of minorities and women in the workforce has occurred, the Bureau is authorized, but is not required, to issue a conditional EEO certification. A conditional EEO certification permits the contractor to receive the award of a City contract and a subcontractor to receive a subcontract, but requires the contractor or subcontractor to demonstrate positive steps to diversify its workforce prior to its receipt of a contract or subcontract and prior to renewal of its certification.
 
(e) If after issuance of a conditional certification, the workforce or other data provided to the Bureau continues to show that the contractor or subcontractor underutilizes minorities and women and has failed to take positive steps to diversify its workforce, the Bureau may deny the request for renewal of its EEO certification, may recommend that a particular contract not be awarded to the contractor, or may issue a conditional certification for another fiscal year.
 
(f) For good cause shown, the Bureau may issue a temporary EEO certification for a limited period of time if that is required in order for them to submit a bid and obtain an award of a contract or subcontract. The issuance of a temporary EEO certification does not guarantee that the contractor or subcontractor will receive EEO certification. Moreover, in the event that a temporary EEO certification is granted and, after further review, the contractor is not entitled to an EEO certification under these rules, the Bureau will so inform the City Council and recommend that no contract be awarded to the contractor, that a contract previously awarded be declared void or other action that it deems appropriate. If after further review it is determined that a subcontractor is not entitled to be EEO certified, the City will so inform the contractor and direct the contractor to take any appropriate action.
 
(g) Although the Bureau may issue a temporary EEO certification, it is not required to do so under any circumstances, even to permit a contractor to submit a bid. The Bureau may take the expiration of a prior conditional certification into account when it determines whether to grant another as evidence that contractor or subcontractor is not seeking in good faith to meet its EEO obligations.

 
Section 7 - Compliance Review
 
The Bureau may investigate adherence to the City’s non-discrimination ordinance and policies at any time and regardless of any prior EEO certification if it receives a complaint of prohibited discrimination or if information otherwise comes to its attention that, if true, might lead to revocation, suspension or denial of an EEO certification
 
(a) When the Bureau determines that a compliance review is appropriate, it shall contact the contractor or subcontractor and notify it in writing of the upcoming review. Thereafter, the contractor or subcontractor shall cooperate with the Bureau, including but not limited to providing documents requested by it.
 
(b) If, at the conclusion of the compliance review, the Bureau determines that the contractor or subcontractor has engaged in prohibited discrimination, the Bureau may revoke or suspend a contractor’s EEO certification.
 

 
Section 8 - Procedure for Compliance Review
 
(a) The Bureau may conduct its compliance review in any manner it determines proper, including, but not limited to, holding a fact-finding conference, holding a hearing before the Hearing Board, or simply investigating the information it has gathered.
 
(b) A fact-finding conference is intended to be an informal meeting in which the complainant, if any, Bureau, and contractor or subcontractor participate to address the complaint or the information held by the Bureau. If the fact-finding conference follows receipt of a complaint and the complainant and the contractor or subcontractor reach mutual agreement and resolve the complaint, the Bureau shall not take any action in regard to the EEO certification.
 
(c) If the Bureau investigates a complaint or information in its possession without a fact-finding conference and, as a result of its ivestigation, finds that it more likely than not that a contractor or subcontractor has engaged in prohibited discrimination, it may deny a request for EEO certification or recertification or revoke or suspend a contractor's or subcontractor’s EEO certification, as may be appropriate.
 
(d) The Bureau may request a hearing before a Hearing Board if information in its possession or a complaint suggests that prohibited discrimination has occurred. The Hearing Board shall consist of the Purchasing Agent and two persons appointed by the Agent who are not employees of the Bureau of Purchases. The Board shall determine, based on evidence presented, whether it is more likely than not that prohibited discrimination occurred. No formal findings of fact or conclusions of law are required, but the Board shall set forth in writing its conclusion within 30 days after the hearing has been concluded.
 
(e) The Hearing Board may recommend that the Bureau revoke, suspend or deny the contractor’s or subcontractor’s EEO certification or it may decide to take no action on the complaint or information. The Bureau is not required to follow the recommendation of the Board if it recommends denial, revocation or suspension of EEO certification because that action must be taken in consultation with the City Attorney’s Office, but is required to follow the Board’s recommendation if a decision is made that no action should be taken.
 
(f) The Bureau of Purchases shall notify the contractor or subcontractor against whom the complaint has been lodged of its decision to hold a hearing no less than 10 days prior to the date of the hearing. In addition, any written decision by the Hearing Board shall be mailed to the contractor or subcontractor.

 
Section 9 - Review of Decision
 
In the event that the Bureau decides to deny a contractor’s or subcontractor’s application for EEO certification or revokes or suspends that certification, the contractor or subcontractor shall be notified of that decision in writing
(a) If the contractor or subcontractor wishes to appeal the decision of the Bureau, it shall notify the City Auditor in accordance with the requirements of the City Code.
(b) If no appeal of the decision is taken, the decision of the Bureau shall go immediately into effect following the expiration of the time set for filing an appeal.

 
HISTORY
 
Submitted for inclusion in PPD December 19, 2002.

Table of Contents
ADM-1.01 - Purchasing Policies
ADM-1.02 - Fair Contracting & Employment Strategy - 3 Year Review
ADM-1.03 - Sustainable Procurement Strategy (Superseded)
ADM-1.04 - Fair Contracting & Employment Strategy
ADM-1.05 - Professional, Technical and Expert Services Contracting Manual
ADM-1.06 - Purchasing Manual (Deleted)
ADM-1.07 - EEO Certification
ADM-1.08 - Purchasing Board of Appeals Rules of Procedure
ADM-1.09 - Sustainable Procurement Policy
ADM-1.10 - Sustainable Paper Use Policy
ADM-1.11 - Proposal to Increase Minority-Owned, Women-Owned and Emerging Small Business Utilization in Professional, Technical and Expert Contracting
ADM-1.12 - Biofuels Requirements for Petroleum-Based Fuels Sold in Portland and City-Owned Vehicles
ADM-1.13 - Assigning Confidence Ratings to Project Cost Estimates
ADM-1.14 - Professional, Technical, and Expert Policy Documents Modification to Address Minority, Women, and Emerging Small Business Subcontractor Concerns and Public Notice Requirement of City Intent to Execute Sole Source PTE Contracts
ADM-1.15 - City Equal Benefit Requirements Expansion to Include Contract Amendments and Revenue Generating Contracts
ADM-1.16 - Sweatshop Free Procurement Policy and Code of Conduct for Apparel Contractors
ADM-1.17 - Sweatshop Free Procurement Policy Administrative Rules
ADM-1.18 - Minority Evaluator on Contractor Evaluation and Selection Panels
ADM-1.19 - Social Equity Contracting Strategy to Increase Minority-Owned, Women-Owned and Emerging Small Business Utilization in City Contracting
ADM-1.20 - Workforce Training & Hiring Program Administrative Rules
ADM-1.21 - Prime Contractor Development Program Administrative Rules
ADM-1.22 - Construction Prequalification Program Administrative Rules
See Also - Independent Contractors