Must a College Adopt an Affirmative Action Plan?
April 8, 2003
Must a college adopt an affirmative action plan (AAP)
because it has accepted federal funds in support of some of the college’s
programs when the funds are “grants” supporting certain college activities, not
“government contracts,” i.e., they are not payments received in exchange for
providing services directly to any federal agency?
The obligation to create an AAP is triggered when an
organization with 50 or more employees enters into a government contract or
subcontract in excess of $50,000. The requirement for government contractors to
adopt AAPs arises from Executive Order 12246, a declaration issued by President
Johnson prohibiting government contractors from engaging in employment
discrimination. For purposes of Executive Order 11246, a “government contract”
is “any agreement . . . between any contracting [federal] agency and any person
for the purchase, sale or use of personal property or nonpersonal services.”
Federal law distinguishes between procurement contracts,
which involve the purchase of goods or services by the federal government, and
federal grants. According to the Federal Grant and Cooperative Agreement Act
(the Grant Act), 31 U.S.C. § 6301-6305, the principal purpose of a procurement
contract “is to acquire property or services for the direct benefit or use of
the United States Government.”
Conversely, the Grant Act requires federal agencies to use
grants or cooperative agreements when “the principal purpose of the relationship
is to transfer a thing of value ... to carry out a public purpose ... instead of
acquiring ... property or services for the direct benefit or use of the United
States Government.”
Ordinarily, federal grants do not trigger an obligation to
draft an AAP, because a federal grant is not a “government contract” to provide
goods or services to a federal agency. For example, federal grants to colleges
and universities assist those institutions in their research and teaching
missions. Thus, if a college received funding from the National Science
Foundation to support the college’s Math Institute, the college would not be
providing services to a government agency; it would simply be performing an
educational function that is encouraged and supported by the U.S. government.
On the other hand, if the U.S. Department of Defense were
to enter into a contract with an engineering college to develop and deliver
software for a missile guidance system, such a contract could trigger an
obligation by the engineering college to draft an AAP. Since a federal grant
does not fall within the definition of a “government contract,” merely receiving
a federal grant does not oblige a school or college to draft an AAP.
For more information, call Douglas Phillips, toll free, at
1-888-688-8500.
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