FAR 52.222-27—Affirmative Action Compliance Requirements for Construction.
Plain-English Summary
FAR 52.222-27 is the construction-specific affirmative action clause that implements Executive Order 11246 and the Department of Labor’s OFCCP requirements for equal employment opportunity on federally assisted or federally funded construction work. It covers the clause’s definitions, subcontract flowdown requirements, Hometown Plan participation, required affirmative action procedures, treatment of collective bargaining agreements and union referrals, counting apprentice and trainee hours, and the contractor’s obligation to document good-faith efforts to achieve minority and female participation goals. In practice, this clause tells construction contractors and subcontractors how to recruit, hire, train, and manage workers in covered areas so they can meet the solicitation’s stated participation goals and avoid discrimination. It also makes clear that compliance is measured by effort and documented affirmative action steps, not just by final workforce percentages. For contractors, the clause creates a continuing operational duty to maintain records, notify recruitment sources, monitor unions and hiring halls, and ensure supervisors maintain a harassment-free worksite. For contracting officers, it requires inclusion of the clause and the solicitation notice with goals, and it signals that compliance issues may involve both contract administration and OFCCP enforcement.
Key Rules
Key definitions control scope
The clause defines covered area, Deputy Assistant Secretary, employer identification number, minority, gender identity, and sexual orientation. These definitions matter because they determine where the goals apply, who enforces the rule, and how protected groups are identified for compliance purposes.
Flow down to construction subcontracts
Any subcontract at any tier involving construction trade work in excess of $10,000 must include this clause and the solicitation notice with minority and female participation goals. This ensures affirmative action obligations follow the work down the subcontract chain.
Hometown Plan obligations apply
If the contractor participates in an approved Hometown Plan in a covered area, it must follow that plan’s affirmative action requirements for the trades covered by participating unions. Participation in the plan does not excuse the contractor from making good-faith efforts or from complying with the Equal Opportunity clause.
Goals are area- and trade-specific
The solicitation’s goals are expressed as percentages of total employment and training hours for minority and female utilization in each construction trade in the covered area. If work is performed outside the covered area, the contractor must use the goals for the area where the work is actually performed and make substantially uniform progress across crafts.
Union terms do not excuse compliance
A collective bargaining agreement, or a union’s failure to refer minorities or women, does not relieve the contractor of its obligations under the clause, Executive Order 11246, or the implementing regulations. The contractor remains responsible for taking affirmative action even when union hiring practices are a factor.
Apprentice and trainee hours count only if conditions are met
Nonworking training hours for apprentices and trainees may be counted toward the goals only if the individuals are employed during the training period and the contractor has committed to employ them after training, subject to available jobs. Trainees must be in Department of Labor-approved programs.
Affirmative action procedures are mandatory
The contractor must implement the listed affirmative action steps and document its efforts fully. The required steps include maintaining a harassment-free work environment, using minority and female recruitment sources, tracking applicants and referrals, and taking active measures to expand equal employment opportunity.
Responsibilities
Contracting Officer
Insert the clause when prescribed by FAR 22.810(f) and include the solicitation notice stating the minority and female participation goals. Ensure the solicitation identifies the covered area and the applicable goals so contractors know the compliance target.
Contractor
Implement the affirmative action procedures, flow the clause down to covered construction subcontracts over $10,000, make good-faith efforts to meet the stated goals, document all efforts, and maintain records of recruitment, referrals, applicants, and actions taken. The contractor must also ensure supervisors maintain a work environment free of harassment, intimidation, and coercion.
Subcontractor
Comply with the flowed-down clause and notice, follow the applicable goals and affirmative action procedures, and document good-faith efforts for its own workforce and subcontracted construction trade work.
Union or Hiring Hall
Refer workers without discrimination and cooperate with the contractor’s affirmative action efforts, although the union’s failure to refer minorities or women does not excuse the contractor’s obligations.
Department of Labor / OFCCP
Approve Hometown Plans and training programs, define and interpret the applicable protected-class terms, and enforce the Executive Order 11246 affirmative action requirements through compliance oversight.
Practical Implications
This clause is not just a paperwork requirement; it drives day-to-day hiring, recruitment, training, and site supervision on construction projects. Contractors should treat the solicitation goals as operational targets and build compliance into staffing plans from the start.
Recordkeeping is critical. Contractors need current recruitment source lists, written outreach notices, applicant and referral logs, and documentation of all affirmative action steps, because compliance is judged on documented good-faith effort.
Union relationships do not eliminate contractor responsibility. If a hiring hall does not refer women or minorities, the contractor still must pursue alternative recruitment and affirmative action measures and cannot rely on the union as a defense.
Supervisory conduct matters. Foremen and superintendents must actively prevent harassment, intimidation, and coercion, especially toward minority and female workers, so training and oversight of onsite management are essential.
Contractors working in multiple locations must watch the applicable geographic goals carefully. If work occurs outside the covered area, the contractor must use the goals for the actual worksite, not the original solicitation area.
Official Regulatory Text
As prescribed in 22.810 (f) , insert the following clause: Affirmative Action Compliance Requirements for Construction (Apr 2015) (a) Definitions . As used in this clause- Covered area means the geographical area described in the solicitation for this contract. Deputy Assistant Secretary , means the Deputy Assistant Secretary for the Office of Federal Contract Compliance Programs, U.S. Department of Labor, or a designee. Employer identification number , means the Federal Social Security number used on the employer’s quarterly Federal tax return, U.S. Treasury Department Form 941. Gender identity has the meaning given by the Department of Labor’s Office of Federal Contract Compliance Programs, and is found at http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html . Minority , as used in this clause, means- (1) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). (2) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); (3) Black (all persons having origins in any of the black African racial groups not of Hispanic origin); and (4) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race). Sexual orientation has the meaning given by the Department of Labor’s Office of Federal Contract Compliance Programs, and is found at http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html . (b) If the Contractor, or a subcontractor at any tier, subcontracts a portion of the work involving any construction trade, each such subcontract in excess of $10,000 shall include this clause and the Notice containing the goals for minority and female participation stated in the solicitation for this contract. (c) If the Contractor is participating in a Hometown Plan (41 CFR 60-4) approved by the U.S. Department of Labor in a covered area, either individually or through an association, its affirmative action obligations on all work in the plan area (including goals) shall comply with the plan for those trades that have unions participating in the plan. Contractors must be able to demonstrate participation in, and compliance with, the provisions of the plan. Each Contractor or subcontractor participating in an approved plan is also required to comply with its obligations under the Equal Opportunity clause, and to make a good faith effort to achieve each goal under the plan in each trade in which it has employees. The overall good-faith performance by other Contractors or subcontractors toward a goal in an approved plan does not excuse any Contractor’s or subcontractor’s failure to make good-faith efforts to achieve the plan’s goals. (d) The Contractor shall implement the affirmative action procedures in paragraphs (g)(1) through (16) of this clause. The goals stated in the solicitation for this contract are expressed as percentages of the total hours of employment and training of minority and female utilization that the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for the geographical area where that work is actually performed. The Contractor is expected to make substantially uniform progress toward its goals in each craft. (e) Neither the terms and conditions of any collective bargaining agreement, nor the failure by a union with which the Contractor has a collective bargaining agreement, to refer minorities or women shall excuse the Contractor’s obligations under this clause, Executive Order 11246, as amended, or the regulations thereunder. (f) In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor. (g) The Contractor shall take affirmative action to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with this clause shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully and implement affirmative action steps at least as extensive as the following: (1) Ensure a working environment free of harassment, intimidation, and coercion at all sites and in all facilities where the Contractor’s employees are assigned to work. The Contractor, if possible, will assign two or more women to each construction project. The Contractor shall ensure that foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at these sites or facilities. (2) Establish and maintain a current list of sources for minority and female recruitment. Provide written notification to minority and female recruitment sources and community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. (3) Establish and maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant, referrals of minorities or females from unions, recruitment sources, or community organizations, and the action taken with respect to each individual. If an individual was sent to the union hiring hall for referral and not referred back to the Contractor by the union or, if referred back, not employed by the Contractor, this shall be documented in the file, along with whatever additional actions the Contractor may have taken. (4) Immediately notify the Deputy Assistant Secretary when the union or unions with which the Contractor has a collective bargaining agreement has not referred back to the Contractor a minority or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations. (5) Develop on-the-job training opportunities and/or participate in training programs for the area that expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under paragraph (g)(2) of this clause. (6) Disseminate the Contractor’s equal employment policy by- (i) Providing notice of the policy to unions and to training, recruitment, and outreach programs, and requesting their cooperation in assisting the Contractor in meeting its contract obligations; (ii) Including the policy in any policy manual and in collective bargaining agreements; (iii) Publicizing the policy in the company newspaper, annual report, etc.; (iv) Reviewing the policy with all management personnel and with all minority and female employees at least once a year; and (v) Posting the policy on bulletin boards accessible to employees at each location where construction work is performed. (7) Review, at least annually, the Contractor’s equal employment policy and affirmative action obligations with all employees having responsibility for hiring, assignment, layoff, termination, or other employment decisions. Conduct review of this policy with all on-site supervisory personnel before initiating construction work at a job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. (8) Disseminate the Contractor’s equal employment policy externally by including it in any advertising in the news media, specifically including minority and female news media. Provide written notification to, and discuss this policy with, other Contractors and subcontractors with which the Contractor does or anticipates doing business. (9) Direct recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students, and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than 1 month before the date for acceptance of applications for apprenticeship or training by any recruitment source, send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process. (10) Encourage present minority and female employees to recruit minority persons and women. Where reasonable, provide after-school, summer, and vacation employment to minority and female youth both on the site and in other areas of the Contractor’s workforce. (11) Validate all tests and other selection requirements where required under 41 CFR 60-3 . (12) Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities. Encourage these employees to seek or to prepare for, through appropriate training, etc., opportunities for promotion. (13) Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment-related activities to ensure that the Contractor’s obligations under this contract are being carried out. (14) Ensure that all facilities and company activities are nonsegregated except that separate or single-user rest rooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. (15) Maintain a record of solicitations for subcontracts for minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. (16) Conduct a review, at least annually, of all supervisors’ adherence to and performance under the Contractor’s equal employment policy and affirmative action obligations. (h) The Contractor is encouraged to participate in voluntary associations that may assist in fulfilling one or more of the affirmative action obligations contained in paragraphs (g)(1) through (16) of this clause. The efforts of a contractor association, joint contractor-union, contractor-community, or similar group of which the contractor is a member and participant may be asserted as fulfilling one or more of its obligations under paragraphs (g)(1) through (16) of this clause, provided, the Contractor- (1) Actively participates in the group; (2) Makes every effort to ensure that the group has a positive impact on the employment of minorities and women in the industry; (3) Ensures that concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation; (4) Makes a good-faith effort to meet its individual goals and timetables; and (5) Can provide access to documentation that demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply is the Contractor’s, and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance. (i) A single goal for minorities and a separate single goal for women shall be established. The Contractor is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and nonminority. Consequently, the Contractor may be in violation of Executive Order 11246, as amended, if a particular group is employed in a substantially disparate manner. (j) The Contractor shall not use goals or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin. (k) The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts under Executive Order 11246, as amended. (l) The Contractor shall carry out such sanctions and penalties for violation of this clause and of the Equal Opportunity clause, including suspension, termination, and cancellation of existing subcontracts, as may be imposed or ordered under Executive Order 11246, as amended, and its implementing regulations, by the OFCCP. Any failure to carry out these sanctions and penalties as ordered shall be a violation of this clause and Executive Order 11246, as amended. (m) The Contractor in fulfilling its obligations under this clause shall implement affirmative action procedures at least as extensive as those prescribed in paragraph (g) of this clause, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of Executive Order 11246, as amended, the implementing regulations, or this clause, the Deputy Assistant Secretary shall take action as prescribed in 41 CFR 60-4 .8. (n) The Contractor shall designate a responsible official to- (1) Monitor all employment-related activity to ensure that the Contractor’s equal employment policy is being carried out; (2) Submit reports as may be required by the Government; and (3) Keep records that shall at least include for each employee the name, address, telephone number, construction trade, union affiliation (if any), employee identification number, social security number, race, sex, status ( e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however , to the degree that existing records satisfy this requirement, separate records are not required to be maintained. (o) Nothing contained herein shall be construed as a limitation upon the application of other laws that establish different standards of compliance or upon the requirements for the hiring of local or other area residents ( e.g., those under the Public Works Employment Act of1977 and the Community Development BlockGrant Program). (End of clause)