What is the authority for the "Certification Regarding Fair Inclusion of Minorities and Women" (provision 7.3.2-53) and the "Fair Inclusion of Minorities and Women" clause (7.6.4-4)?
The authority for the Fair Inclusion provision and clause is the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Section 342 (c)(2).To which solicitations does the Fair Inclusion provision (7.3.2-53) apply?
The Fair Inclusion provision applies to all FDIC procurements for goods and services with an award value over $100,000.To which contracts does the Fair Inclusion clause (7.6.4-4) apply?
The Fair Inclusion clause applies to all FDIC executed contracts for goods and services with an award value over $100,000.What are the contractor requirements to comply with the Fair Inclusion clause (7.6.4-4)?
The Fair Inclusion clause requires contractors to:Make a good faith effort to include minorities and women in their workforce;
Include the clause in all subcontracts with an award value over $100,000; and
Provide documentation of actions undertaken or planned to demonstrate good faith efforts to include minorities and women in their workforce (upon written request from the Contracting Officer).
What is the authority for FDIC to review contractor and, as applicable, subcontractor good faith effort to include minorities and women in their workforce?
The Authority for the FDIC to review contractors' good faith effort is the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Section 342 (c)(3).Which FDIC contractors are subject to the Dodd-Frank Section 342(c)(3) good faith effort determination?
FDIC contractors with awards valued over $100,000 are subject to the good faith effort determination.What constitutes a good faith effort to include minorities and women in the workforce?
Good faith effort includes actions undertaken by the contractor that are intended to identify and, if present, remove barriers to minorities and women employment or expand employment opportunities within its workforce.What documentation may FDIC request from the contractor to demonstrate good faith effort?
FDIC good faith effort documentation request may include, but is not limited to:The total number of contractor employees and the number of minority and women employees, by race, ethnicity, and gender (e.g., EEO-1);
A plan to ensure that minorities and women have appropriate opportunities to enter and advance within the workforce, including outreach efforts;
A list of subcontractor awards under the contract that includes the dollar amount, date of award, and subcontractor's minority and gender ownership status; and
Information similar to that required in item 1 above (for each subcontractor with a subcontract value that exceeds $100,000).
Can a contractor submit its existing affirmative action plan or other related plans to demonstrate good faith effort?
Yes, a contractor may provide their existing affirmative action or other related plans, such as, Diversity and Inclusion Strategic plan if they are less than 24 months old or current.Is the request for the contractor's workforce demographics data only for employees or does the request also include independent contractors?
Independent contractors (i.e., 1099) are not considered employees of the contractor and therefore should not be included in their total employment count. Independent contractors are subcontractors for contract purposes.What information must prime contractors provide on applicable subcontract(s)?
For all awards valued over $100,000, the contractor must provide a list of all subcontracts under the contract, the dollar amount, and minority and/or gender ownership status.How are prime contractors to report minority and/or gender ownership of a subcontractor(s)?
Dodd-Frank Section 342 (g)(4)(6) defines minority and woman ownership the same as in the Federal Home Loan Bank Act of 1932,12 U.S.C. 1441a(r)(4)(A) and (B). Specifically, Minority-owned business: "More than 50 percent of the ownership or control of which is held by one or more minority individuals; and more than 50 percent of the net profit or loss of which accrues to one or more minority individuals." Woman-owned business: "More than 50 percent of the ownership or control of which is held by one or more women; more than 50 percent of the net profit or loss of which accrues to one or more women; and a significant percentage of senior management positions of which are held by women." The subcontractor is in the best position to determine whether or not the business is minority-owned or woman-owned per the definitions.What are the good faith effort requirements for minority-owned and women-owned businesses (MWOB) under Dodd-Frank Section 342 (c) as it pertains to the contractor workforce?
The focus under Dodd-Frank Section 342(c) is for "an agency contractor, and, as applicable, a subcontractor… to make a good faith effort to include minorities and women in their workforce." To the extent the provision applies to the contractor, they should make a good faith effort to include minorities and women in their workforce, remove barriers to their entrance, and provide equitable opportunities for advancement of minorities and women.Does the good faith effort request change the terms and/or conditions of the contract?
No, the good faith effort request does not alter the terms or conditions of the contract. Per the Fair Inclusion clause (7.6.4-4), the contractor shall provide the good faith effort documentation upon request, "without any additional consideration required from the FDIC."What is the timeframe for providing good faith effort documentation in response to an FDIC request?
The contractor must provide good faith effort documentation to FDIC within 10 business days from the date of the written request from the Contracting Officer. The Contracting Officer in coordination with OMWI is responsible for ensuring the documentation is provided by the contractor in a timely manner.Where are questions and documentation submitted in response to the good faith effort request?
Contractors should follow instructions included in the request for submission of questions and good faith effort documentation to the FDIC.Is information received from a contractor subject to release under the provisions of the Freedom of Information Act (FOIA)?
FDIC anticipates any documentation a contractor provides in response to good faith effort request is considered confidential.How will the information provided by contractors be used by FDIC?
The information is for FDIC review only to verify the contractor's good faith effort to include minorities and women in the workforce. The result of the review is reported in the annual 342 Report to Congress in aggregate.What if the contractor fails to provide the requested documentation?
The FDIC will make every effort to work with a contractor to reach a resolution on good faith effort determinations. Failure to reach agreement may result in a determination the contractor has failed to make a good faith effort, pursuant to Dodd-Frank Section 342 (c)(3)(A).What criteria and or standards will FDIC use to assess contractors' good faith effort to include minorities and women in the workforce?
In general, FDIC is looking to see whether the available evidence supports the contractor's certification that they have made, will continue to make, or will make, during the course of the contract, a good faith effort to ensure, to the maximum extent possible, the fair inclusion of minorities and women in its workforce and the workforces of applicable subcontractors. Evidence may include plans, workforce demographics and/or other available support documents provided by the contractor that demonstrates their efforts to ensure, to the maximum extent possible, the fair inclusion of minorities and women in its workforce and the workforces of applicable subcontractorsHow will the determination be made on whether or not a contractor has failed to make a good faith effort?
FDIC has developed a process to assess a contractor's good faith effort. Review activity will focus primarily on methods to enhance or improve contractor performance and amicably resolve issues.What are the possible consequences of a contractor's failure to make a good faith effort to include minorities and women in the workforce?
Upon determination by the Director, FDIC Office of Minority and Women Inclusion, that the contractor has failed to make a good faith effort to include minorities and women in its workforce, a recommendation can be made to the Director, Division of Administration, in consultation with the Legal Division and the Acquisition Services Branch to:Terminate the contract;
Make a referral to OFCCP; or
Take other appropriate action.
How are the Dodd-Frank provisions different from existing civil rights laws administered by the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC)?
The above reference to civil rights laws require compliance with practices that eliminate/prohibit discriminatory practices in the workplace that adversely affect people based on their race, sex, color, national origin, religion, or age. Dodd-Frank Section 342 (c) specifically applies to financial regulators and does not provide any authority to enforce civil rights laws. The focus of Dodd-Frank is on workforce diversity specifically as it pertains to minorities and women.Is compliance with the OFCCP requirements and completion of the EEOC reporting requirements sufficient to demonstrate good faith effort?
Overall, evaluating compliance with OFCCP and EEOC requirements is beyond the scope of Dodd-Frank Section 342. Contractors may leverage any existing documentation, including those required by OFCCP and EEOC, to demonstrate good faith efforts under Dodd-Frank Section 342.Does compliance with the Fair Inclusion of Minorities and Women clause satisfy the contractors' obligations under E.O. 11246, as amended?
No, nothing in Dodd-Frank Section 342 usurps authority granted to the OFCCP and EEOC under the E.O. 11246 or Title VII, nor does it relieve the contractor from compliance with any requirements of E.O. 11246 or Title VII.
Last Updated: September 13, 2021