By enactment of AS 18.80.200(a), the Alaska State Legislature has declared as a matter of legislative finding that discrimination against an inhabitant of the State because of race, religion, color, national origin, age, or sex is a matter of public concern and that such discrimination not only threatens the rights and privileges of the inhabitants of the State but also menaces the institutions of the State and threatens peace, order, health, safety and general welfare of the State and its inhabitants.
The above legislative policy would be contravened by awarding State and State-assisted contracts to contractors whose practices do not promote equal employment opportunity.
It is the policy of the Executive Branch of the State to encourage, by positive measures, equal employment opportunity for all persons within the State; therefore, by virtue of the authority vested in me as Governor of the State of Alaska by Article III, Section 24 of the Alaska Constitution and by AS 18.80.200(b), it is hereby ordered as follows:
I. In order to insure equal employment opportunity for minority persons, all State construction contracts shall contain in the contract specifications the following affirmative action commitment:
Contractor hereby agrees that for those trades on this contract and on all other construction contracts (State, political subdivision of the State and private) which contractor performs during the term of this contract which are not signatory to and in good faith compliance with the Alaska Plan, contractor will observe the appropriate minority manpower utilization goals established by the United States Department of Labor on all non-exempt Federal and federally-assisted construction contracts to be awarded in the State of Alaska for trades not signatory to and in good faith compliance with the Alaska Plan. A copy of the aforementioned minority manpower utilization goals can be obtained from the department letting the contract. Contractor also agrees that if contractor fails to fulfill its affirmative action commitment, any or all contracts or subcontracts which contractor has relating to construction by the State of Alaska may be cancelled, terminated or suspended. Further contractor agrees to incorporate all of Paragraph I in all subcontracts awarded under this contract. Contractor also agrees to give notice to the contracting department telling the contracting department of the failure of any of its subcontractors to meet affirmative action commitments.
II. A contractor shall not be held accountable for the failure of its subcontractor to meet its affirmative action commitment if the contractor includes Paragraph I in its contract with the subcontractor and if the contractor, upon learning of its subcontractor’s failure, gives notice to the letting department.
III. Any contract containing affirmative action commitments under Executive Order 11246 is exempt from this administrative order.
IV. An affirmative action commitment is not intended and shall not be used to discriminate against any qualified applicant or employee. If the commitment is being used in a discriminatory manner, the contractor shall immediately report that fact to the department which has let the contract.
V. Each department shall review each contractor’s and subcontractor’s employment practices during the performance of the contract. If the contractor or subcontractor meets its affirmative action commitment or if a contractor or subcontractor can demonstrate it has made every good faith effort to meet its commitment, the contractor or subcontractor shall be presumed to be in compliance with this order. Where the department finds that the contractor or subcontractor has failed to meet its affirmative action commitment, the department shall take such action and impose such sanctions as may be appropriate under this order. When the department proceeds with such formal action, it has the burden of proving that the contractor or subcontractor has not met this affirmative action commitment, but the contractor’s or subcontractor’s failure to comply with Paragraph I shall shift to it the requirement to come forward with evidence to show that it has met the good faith requirement of this order.
VI. The provisions of this order will be effective with respect to transactions for which the invitation for bids or other solicitations or additions or amendments thereto, are sent on or after the publication of this order.
VII. The contracting department shall have recourse to the following sanctions and penalties for a contractor’s or subcontractor’s failure to meet its affirmative action commitment:
1. Cancel, terminate, suspend or cause to be cancelled, terminated, or suspended, any contract or subcontract, relating to construction by the State of Alaska, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with the affirmative action provisions of the contract. Contracts may be cancelled, terminated, or suspended absolutely or continuation of the contract may be conditioned upon a program for future compliance approved by the contracting agency.
2. Provide that the department and all other State departments shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor or subcontractor, until such contractor or subcontractor has established that he will carry out personnel and employment policies in compliance with this order.
3. The contracting department shall make reasonable efforts within a reasonable time limitation to secure compliance to the contract provisions of this order by methods of conference, conciliation, mediation, and persuasion before any proceedings shall be instituted.
VIII. Each State department which administers a program involving State financial assistance shall require as a condition for the approval of any grant, contract, loan, insurance or guarantee thereunder, which may involve a construction contract, that the applicant for State assistance undertake and agree to incorporate, or cause to be incorporated, into all construction contracts paid for in whole or in part with funds obtained from the State Government or borrowed on the credit of the State Government pursuant to such grant, contract, loan, insurance, or guarantee, or undertake pursuant to any State program involving such grant, contract, loan, insurance, or guarantee, the affirmative action provisions of Paragraph I. Each applicant for State assistance shall also undertake and agree:
1. To assist and cooperate actively with the administrating department in obtaining the compliance of contractors and subcontractors with this order, and
2. Carry out sanctions and penalties for the violation of such obligations imposed on contractors and subcontractors by this order.
IX. As used in the preceding sections:
A. Minority persons means Black, American Indian, Eskimo, Aleut, and individuals of Mexican, Puerto Rican and Filipino descent.
B. Construction contract means any contract for the construction, rehabilitation, alteration, conversion, extension or repair of buildings, highways, or other improvements to real property.
Dated at Juneau, Alaska, this 22nd day of November, 1972.
S/S WILLIAM A. EGAN
WILLIAM A. EGAN
Governor of Alaska