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Appendix D - The Federal Contractors Program for Employment Equity

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Published July 1, 2003. The contents of this appendix are mandatory since they represent a decision of cabinet.

Introduction

The primary objective of contracts is to receive the deliverables contracted for, and to be able to use those deliverables for Government of Canada activities. The Government of Canada's Contracting Policy further states that officials are to achieve best value for money and to seek the optimal balance of benefits to the Crown and the Canadian people through its purchases. As part of this commitment, the Government of Canada has made specific provisions for social and economic development objectives to be pursued through procurement. One of the socio-economic objectives pursued through contracting is employment equity. The Federal Contractors Program on Employment Equity sets out a framework for meeting these objectives.

Background - The Federal Contractors Program for Employment Equity

The Federal Contractors Program was implemented October 1, 1986 following the proclamation of the Employment Equity Act on August 13, 1986. The Act itself covered private sector federally regulated enterprises with 100 or more employees and required them to implement employment equity. The Federal Contractors Program targeted non-federally regulated federal contractors with a resident workforce in Canada of 100 or more employees which received federal contracts for goods and services of $200,000 or more.

The Employment Equity Act was amended in 1995 to strengthen various provisions and to provide measures to ensure compliance with employment equity requirements; it also extended the obligation to implement employment equity to federal departments and agencies. The Act states it is the responsibility of the Minister of Labour to "administer the Federal Contractors Program for Employment Equity and ... ensure that the requirements of that program with respect to the implementation of employment equity ... are equivalent to the requirements with respect to the implementation of employment equity by an employer under this Act." This legislative mention clearly authorizes the Minister of Labour to develop procedures necessary to administer the Program and ensure that contractors comply with their employment equity obligations.

There are a number of obligations incumbent on organizations subject to the Act or the Federal Contractors Program "to achieve equality in the workplace ..." (Act, section 2). Such organizations must collect and maintain data on all employees, analyze the representation of each of the designated groups in all occupational groups, compare this representation with the external representation and identify under-representation of designated groups. Based on this information, organizations must identify and remove all barriers impeding designated groups and must prepare an employment equity plan with achievable and realistic short and long term goals. In implementing employment equity, organizations must develop positive policies and practices and, as required, provide accommodation and special measures for designated groups.

For their part, federal contractors with a resident workforce of 100 or more employees (as defined in the Act and Regulations) which bid on goods and services contracts of $200,000 or more must certify their commitment to implement employment equity. Once a supplier is awarded a contract of $200,000 or more (including all applicable taxes), the organization is then required to honour its commitment of implementing employment equity as an on-going obligation, and not simply during the life of the contract. Contractors subject to the Federal Contractors Program are required to provide Labour Program of Human Resources Development Canada (HRDC-Labour) with information on the representation of women, members of visible minorities, Aboriginal peoples and persons with disabilities who are permanently employed. HRDC-Labour verifies that all federal contractors are meeting their obligations through a cycle of compliance reviews administered by workplace equity officers. Contractors which fail to meet their commitment may lose the right to receive further federal contracts for goods and services.

1. General

1.1 Departments and agencies (listed at Schedules 1, 1.1 and 2 of the Financial Administration Act) must follow practices that will ensure fairness and equality to designated groups in the administration of all contracts. More specifically, the Federal Contractors Program for Employment Equity (FCP), administered by Human Resources Development Canada-Labour (HRDC-Labour) is intended to ensure that suppliers to the federal government attain a fair and representative work force.

1.2 Contractors must identify and remove barriers to the selection, hiring, promotion and training of women, aboriginal peoples, persons with disabilities, and visible minorities. Contractors must also take steps to help increase the participation of these groups at all levels and in all areas of the work force.

1.3 The Federal Contractors Program applies to:

• Canadian suppliers and foreign suppliers with a resident work force in Canada of 100 or more permanent full-time and/or permanent part-time employees as defined in the Employment Equity Act.
• Goods and services contracts/standing offer agreements/supply arrangements valued at $200,000 (including all applicable taxes) or more (referred to as "contracts" throughout this document) covered by the Government Contracts Regulations and the Contracting Policy.
• All goods and services contracts over the threshold for solicitation of bids set out in the GCR's for contractors declared "ineligible".
• This Program does not apply to contracts for the purchase or lease of real property or to construction contracts.

2. General Procedures for soliciting bids or awarding contracts estimated at $200,000 or more

2.1 All contracting authorities soliciting bids or awarding goods and services contracts valued at $200,000 (including all applicable taxes) and above must:

1. indicate to bidders the Federal Contractors Program for Employment Equity requirements;
2. request and obtain from the bidder/supplier, as appropriate, the necessary evidence of compliance with the Federal Contractors Program, namely a valid and current Certificate of Commitment duly signed by an authorized executive of the company or a valid Certificate of Commitment number issued by HRDC-Labour;
3. A supplier is not subject to the Federal Contractors Program if it is covered under the Employment Equity Act. To confirm coverage, contracting authorities may consult HRDC-Labour's internet site (http://info.load-otea.hrdc-drhc.gc.ca/workplace_equity/leep/) or confirm coverage under the Act by contacting the Chief, Employer Reports and Analysis, Labour Standards & Workplace Equity (819)953-7499;
4. Contracting authorities can consult the "FCP List of Certified Employers" and the "FCP List of Ineligible Contractors" which are available on Publiservice (http://publiservice.tbs-sct.gc.ca/cmp/category-categorie.asp?Language=EN&site=CMP&id=089) to verify the eligibility of bidders recommended for contract award.

3. Procedures Applicable to "Ineligible Contractors"

3.1 A supplier declared ineligible by HRDC-Labour and whose name appears against the "FCP List of Ineligible Contractors" is ineligible to do business or receive any federal contracts for goods and services over the threshold for solicitation of bids as set out in the Government Contracts Regulations (GCRs).

3.2 If the bidder cites a Certificate of Commitment number, it is recommended that the contracting authority verify its accuracy by comparing it with the number listed for that organization/bidder in the "FCP List of Certified Employers". HRDC-Labour makes this information available on Publiservice (http://publiservice.tbs-sct.gc.ca/cmp/category-categorie.asp?Language=EN&site=CMP&id=089).

3.3 If the Certificate of Commitment number cited by the bidder does not match the Certificate of Commitment number listed in the "FCP List of Certified Employers", it is recommended that the contracting officer contact the HRDC-Labour Program Officer, Workplace Equity Programs (819)953-4120 or seek clarification from the bidder.

3.4 If an ineligible supplier is the only supplier which can perform the work in a non-competitive situation or the recommended bidder(s) in a competitive solicitation, the procurement officer should obtain approval from senior management of the contracting authority before awarding the contract. In such cases, the contracting department should inform Workplace Equity Programs of HRDC-Labour who would then attempt to obtain a commitment from the supplier to seek re-instatement in the Federal Contractors Program (see section 6.5 below).

4. Reporting and Monitoring

4.1 Within 30 days of contract award, Departments/Agencies will forward original signed Certificates of Commitment for contracts valued at $200,000 (including all applicable taxes) or more to:

Note that all signed Certificates will be numbered by HRDC-Labour for ease of reference.

4.2 HRDC-Labour will regularly evaluate the program and may request from contracting departments/agencies information essential to program monitoring.

4.3 Submissions seeking Treasury Board approval of contracts should address compliance with the Federal Contractors Program.

5. Compliance Review

5.1 Contractors must implement employment equity in accordance with criteria of the Federal Contractors Program.

5.2 Human Resources Development Canada-Labour periodically conducts on-site reviews of contractors. If the results are satisfactory, HRDC-Labour shall so inform the contractor.

5.3 The contractor, informed by HRDC-Labour that their efforts or progress-to-date are not satisfactory, must initiate appropriate corrective action within a reasonable time period. If at the end of that period results are unsatisfactory, the review officer may find the contractor to be in non-compliance.

5.4 Contractors found to be in non-compliance as a result of a compliance review have the right to appeal to the Minister of Labour. In that case an independent assessor shall be appointed to examine the review and any information presented by the contractor making the appeal. The independent assessor will form conclusions and advise the Minister accordingly.

6. Sanctions

6.1 Contractors withdrawing from the Federal Contractors Program accept the same sanction as that for being found in non-compliance (see 6.3 below).

6.2 Withdrawal from FCP without sanction: When a contractor demonstrates to the satisfaction of HRDC-Labour that its workforce has decreased to less than 100 permanent employees, HRDC-Labour will allow the organization to withdraw from FCP without penalty.

6.3 Following a compliance review resulting in a finding of non-compliance and in which the contractor files an appeal, the Minister of Labour shall communicate the assessor's findings to the Minister of the department/agency that awarded the contract; if the assessor's report confirms the finding of non-compliance, the Minister of Labour shall take appropriate action which may include advising the contractor that it is ineligible for future goods and services contracts. In this case, HRDC-Labour will place the name of the ineligible organization on the "FCP List of Ineligible Contractors" and its Certificate of Commitment number will become invalid. The contractor in question will not be considered for further federal contracts for goods and services valued over the threshold for solicitation of bids set out in the Government Contracts Regulations (see section 3 of this document).

6.4 If the contractor withdraws from the Federal Contractors Program during a compliance review and prior to a finding of non-compliance, the contractor will be declared ineligible to receive further federal contracts for goods and services above the threshold for soliciting competitive bids set out in the Government Contract Regulations. The name of the ineligible contractor will be placed on HRDC-Labour's "FCP List of Ineligible Contractors."

6.5 Re-instatement: The ineligible contractor may be re-instated by demonstrating to the satisfaction of a review officer of HRDC-Labour that the organization is in compliance with the Federal Contractors Program.

7. Roles and responsibilities

Roles and responsibilities of HRDC-Labour

Roles and responsibilities of contracting authorities