Long Beach Municipal Code Ch. 2.72 Equal Opportunity Contract Compliance Program

The purpose of this Chapter is to obligate those contractors who contract with the City to comply with nondiscrimination and equal opportunity provisions of laws rules and regulations of the United States, the State and the City, except as provided in this Chapter. It shall obligate contractors to take affirmative action to insure the provision of equal opportunity in certain contracts. Appropriate provisions shall be incorporated into all contracts to accomplish this purpose.

(Ord. C-5315 § 1, 1977: prior code § 2800)

Unless exempted, excepted or otherwise excused by law, no person, firm or corporation that contracts with the City to provide services or supplies shall be paid any public funds or other consideration, whether such service or supplies are delivered or not, unless such person, firm or corporation complies with the equal opportunity provisions of federal, State and City laws, rules and regulations and has filed such plan with the equal opportunity compliance officer of this City, an affirmative action plan, an employment action plan or equal service certification (standard or devised according to stated standards) as may be applicable and such plan has been approved by the equal opportunity compliance officer. An affirmative action plan previously accepted by a federal compliance agency will be considered acceptable for the requirements under Section 2.72.060.

(Ord. C-5315 § 1 (part), 1977: prior code § 2801)

The following words and phrases shall be construed as defined in this Section unless from the context a different meaning is indicated and more particularly directed to use of such words and phrases:

"Affirmative action" means the taking of positive steps by the contractor or subcontractor to insure that its practices and procedures promote and effectuate employment retention and advancement of a particular class or category of persons generally described by race, color, religion, sex, ancestry, national origin, age and handicap. The action may involve the concept, when applicable of remedying the continuing effects of past discrimination.

"Affirmative action plan" means a written statement executed by the contractor which declares the contractor's policy for equal opportunity and affirmative action practices and is signed by an authorized managing official of the contractor. The plan declares the means and method of policy implementation and identifies the management level person responsible for the implementation of the plan. It contains a work force analysis of the race, ethnic, and sex grouping of persons within the contractor's work force by Equal Employment Opportunity -1 (EEO-1) job categories as designated by the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs. Minorities are defined for this purpose as persons of the following racial and ethnic groups: Black (negroes), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), Asians (including Pacific Islanders), American Indians (including Alaskan natives). It contains a utilization analysis as a comparison between the contractor's work force and the labor market availability (see definition under this Section).

It declares the contractor's goals and timetables for eliminating deficiencies as indicated by the utilization analysis. It further declares the corrective action measures as affirmative steps the contractor will take to meet established goals.

"Contract" means any agreement, franchise or lease, including agreements for any occasional professional or technical personal services for the performance of any work or service, the provision of any material or supplies or the rendition of any service to or for the City, which is let, awarded or entered into with or on behalf of the City.

"Contractor" means any person, firm, corporation, or any combination thereof, which submits a bid or enters into any contract with the City.

"Employment action plan" means a written statement executed by the contractor which declares the contractor's policy and the assignment of responsibility to a top management person to implement the plan to hire unemployed residents of Long Beach in the performance of the contract. It further declares a numerical goal of employed residents by job classification which the contractor will employ and the steps the contractor will take to achieve the goal.

"Employment practices" means any practice involving the recruitment of applicants, the selection of employees, the training of employees, the compensation of employees directly or indirectly, the promotion, demotion, layoff, suspension, termination of employees, or any other practice relating to employees in their work-related activities.

"Equal opportunity" means that opportunity which must be extended to all persons to participate in all activities, employment, programs or services in like proportions to their representation in the labor market or service area, as applicable.

"Equal service certification" means a written statement executed by the contractor in which the contractor certifies and agrees that he or she will not discriminate against any person in the provision of any service activity or in any program funded in whole or in part by the City, because of race, color, religion, national origin, ancestry, sex, gender identity, age or handicap, except where such exclusion is a bona fide service activity or programmatic necessity.

"Labor market availability" means the total recorded number of persons who are employed or unemployed and seeking work within the Standard Metropolitan Statistical Area (S.M.S.A.) as defined in the Department of Commerce, Bureau of Budget Publication, "Standard Metropolitan Statistical Areas," 1967, U.S. Government Printing Office, Washington, D.C. 20402, and which is applicable to the contractor's work force.

"Service activity" means any program or activity which promotes the City as a creative, active and socially responsive community.

"Subcontractor" means any person, firm, corporation or any combination thereof, which enters into a contract with a contractor to perform or provide a portion or part of any contract with the City.

(ORD-08-0016 § 1, 2008: Ord. C-5315 § 1 (part), 1977: prior code § 2802)

Every contract awarded by the City and every subcontract let by the contractor of the City shall contain the following clause:

"The contractor and subcontractor agree that they will not discriminate against any person in the performance of the contract and will comply with applicable federal, State and City of Long Beach, Equal Opportunity Laws, Rules and Regulations".

(Ord. C-5315 § 1 (part), 1977: prior code § 2803)

Every construction contract awarded by the City for the total amount of ten thousand dollars ($10,000.00) or more, and every subcontract let by the contractor of the City in those cases, shall require the contractor and any subcontractor to submit to the equal opportunity compliance officer of the City for approval prior to award of the contract an acceptable affirmative action plan. The contract shall further require the contractor to comply with the plan.

(Ord. C-5315 § 1 (part), 1977: prior code § 2804)

Every nonconstruction contract awarded by the City for the total amount of twenty thousand dollars ($20,000.00) or more, and every subcontract let by the contractor of the City in those cases, shall require the contractor and any subcontractor to submit to the equal opportunity compliance officer of the City for approval prior to award of the contract an acceptable affirmative action plan or employment action plan or equal service certification, whichever is applicable to the contract, in accordance with the following provisions:

A. Contractors or subcontractors having a business location within the City and fifteen (15) or more employees shall submit an acceptable affirmative action plan which utilizes the combined Los Angeles and Orange Counties S.M.S.A.s to determine its labor market availability;

B. Contractors or subcontractors having a business location within Los Angeles or Orange County, except within Long Beach, and having fifty (50) or more employees shall submit an acceptable affirmative action plan or an acceptable employment action plan;

C. Contractors or subcontractors having a business location outside Los Angeles or Orange County and having fifty (50) or more employees shall submit an acceptable affirmative action plan;

D. Contractors or subcontractors who perform a personal service and who employ five (5) or more persons shall submit an acceptable affirmative action plan; and

E. Contractors or subcontractors who perform the requirements of a contract by members and directors of an organization and not with employees shall submit an acceptable equal service certification.

The contract shall further require that all contractors comply with their approved plans.

(Ord. C-5315 § 1 (part), 1977: prior code § 2805)

Contractors and subcontractors shall maintain such records and shall make such records available in such form and at such times as the equal opportunity compliance officer of the City shall reasonably require to determine compliance with the equal opportunity obligations of the contract. Contractors and subcontractors shall further provide reasonable access to job sites or business locations upon request of the equal opportunity compliance officer.

(Ord. C-5315 § 1 (part), 1977: prior code § 2806)

A. Contractors and subcontractors who achieve the goals of their respective affirmative action plans or employment action plans may be presumed to be in compliance with the equal opportunity affirmative action provisions of the contract. Contractors and subcontractors who fail to achieve their goals shall be evaluated for the corrective action measures taken to achieve such goals. Such corrective action measures shall include, but not be limited to:

1. Notifying community organizations, news media and schools which are likely to yield applicants from groups who are underrepresented (i.e., minorities and females) in the contractor's work force of all available employment opportunities:

2. Maintaining a file of names and addresses of each employment application from any underrepresented group for continued placement followup;

3. Encouraging present employees to recruit applicants from underrepresented groups;

4. Providing where feasible after school, summer and vacation employment for persons of underrepresented groups;

5. Assuring that all personnel recruitment, selection and evaluation devices or procedures do not adversely affect or illegally discriminate against underrepresented groups;

6. Developing or participating in training programs designed to increase the employability of underrepresented groups;

7. Assuring that all activities, practices, and programs of the contracting entity do not illegally discriminate against or adversely affect underrepresented groups;

8. Monitoring and evaluating affirmative action plan activities to assure compliance with the equal opportunity policy;

9. Soliciting bids for subcontracting from minority and female subcontractors.

B. Contractors who do not achieve their goals, who fail to take at least the corrective actions indicated above, and who fail to submit timely documentation and reports are not in compliance with the equal opportunity provisions of the contract. Such failure shall be deemed to be a material breach of the contract. The equal opportunity compliance officer shall make such determinations of compliance and shall notify the awarding authority of such noncompliance and recommend appropriate sanctions.

(Ord. C-5315 § 1 (part), 1977: prior code § 2807)

Contractors and subcontractors who fail to comply shall be given an opportunity to be heard by the awarding authority or their designates. The equal opportunity compliance officer shall be notified by the awarding authority and may attend and be heard at any hearing for this purpose before the imposition of any penalties or sanctions. However, if after such hearing the contractor or subcontractor remains in a status of noncompliance, the awarding authority may seek sanctions according to law including but not limited to: (A) the withholding of payment; (B) suspension of the contract; (C) termination of the contract in whole or in part; (D) declaring the contractor a nonresponsive bidder or other appropriate sanctions. The City may in addition retain all moneys due or to become due on the contract. Contractors and subcontractors found to be nonresponsive shall be disqualified from being awarded a City contract for a period of five (5) years or until the contractor can demonstrate to the equal opportunity compliance officer that he is complying with the equal opportunity provisions of this Chapter.

(Ord. C-5315 § 1 (part), 1977: prior code § 2808)

Contractors may appeal the imposition of sanctions under this Chapter to the City Council. Any such appeal shall be filed with the City Clerk no later than ten (10) days following the decision of the awarding authority.

(Ord. C-5315 § 1 (part), 1977: prior code § 2809)

The Affirmative Action Office of the City shall promulgate the rules, regulations and forms for implementing the nondiscrimination, equal opportunity and affirmative action provisions of this Chapter. So far as practicable such rules and regulations shall be similar to those adopted under applicable federal executive orders.

(Ord. C-5315 § 1 (part), 1977: prior code § 2810)

A. Contractual proceedings where such notice inviting bids is being published pursuant to the City Charter shall specify that the provisions of Sections 2.72.010 through 2.72.130 are applicable to any contract awarded.

B. When a notice inviting bids is not published, the contractor shall be advised at the outset of negotiations that the provisions of Sections 2.72.010 through 2.72.130 will be a part of any contract entered into by the City as a result of such negotiations.

(Ord. C-5315 § 1 (part), 1977: prior code § 2811)

Exempt from the provisions of this Chapter are:

A. Contracts with other governmental jurisdictions;

B. Contracts with manufacturers located outside the continental United States;

C. Contracts with sole source suppliers of goods and services; and

D. Contracts resultant from emergencies where the general welfare is at stake.

(Ord. C-5315 § 1 (part), 1980: prior code § 2812)