B-167015, JUL 2, 1974, 54 COMP GEN 6

B-167015, JUL 2, 1974, 54 COMP GEN 6

BIDS - COMPETITIVE SYSTEM - FEDERAL AID, GRANTS, ETC. - EQUAL EMPLOYMENT OPPORTUNITY PROGRAMS ILLINOIS EQUAL EMPLOYMENT OPPORTUNITY (EEO) REQUIREMENTS FOR PUBLICLY FUNDED, FEDERALLY ASSISTED PROJECTS DO NOT COMPLY WITH FEDERAL GRANT CONDITIONS REQUIRING OPEN AND COMPETITIVE BIDDING BECAUSE REQUIREMENTS ARE NOT IN ACCORDANCE WITH BASIC PRINCIPLE OF FEDERAL PROCUREMENT LAW, WHICH GOES TO ESSENCE OF COMPETITIVE BIDDING SYSTEM, THAT ALL BIDDERS MUST BE ADVISED IN ADVANCE AS TO BASIS UPON WHICH BIDS WILL BE EVALUATED, BECAUSE REGULATIONS, WHICH PROVIDE FOR EEO CONFERENCE AFTER AWARD BUT PRIOR TO PERFORMANCE, CONTAIN NO DEFINITE MINIMUM STANDARDS OR CRITERIA APPRISING BIDDERS OF BASIS UPON WHICH COMPLIANCE WITH EEO REQUIREMENTS WOULD BE JUDGED.

IN THE MATTER OF ILLINOIS EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS FOR PUBLIC CONTRACTS, JULY 2, 1974:

THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE (OFCC), EMPLOYMENT STANDARDS ADMINISTRATION, UNITED STATES DEPARTMENT ILLINOIS STATE PUBLIC WORKS PROJECTS. INCLUDED IN THE COVERAGE OF THE REGULATIONS ARE PUBLICLY FUNDED, FEDERALLY ASSISTED CONSTRUCTION CONTRACTS IN THE STATE. BIDDERS ON THESE LATTER PROJECTS ARE ALSO REQUIRED TO ACCEPT FEDERAL EEO BID CONDITIONS PROMULGATED BY THE SECRETARY OF LABOR, PURSUANT TO SECTION 201 OF EXECUTIVE ORDER 11246, OF LABOR HAS REQUESTED OUR OFFICE TO REVIEW THE EQUAL EMPLOYMENT OPPORTUNITY (EEO) REGULATIONS FOR PUBLIC CONTRACTS OF THE STATE OF ILLINOIS, PRESCRIBED BY THE ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION (IFEPC), AND TO DETERMINE WHETHER THESE REGULATIONS ARE IN VIOLATION OF THE BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW. THIS MATTER AROSE OUT OF ILLINOIS' SUBMITTAL OF THESE REGULATIONS TO OFCC, PURSUANT TO 41 CFR 60-1.4(B)(2), 39 FED. REG. 2365 (JANUARY 21, 1974), FOR A DETERMINATION WHETHER THE REGULATIONS ARE INCONSISTENT WITH EXECUTIVE ORDER 11246, AS AMENDED, OR INCOMPATIBLE WITH THE EFFECTIVE IMPLEMENTATION OF THE FEDERAL MINORITY HIRING AND/OR TRAINING PLANS IN ILLINOIS.

IT IS STATED IN THE ILLINOIS REGULATIONS THAT THEY ARE INTENDED TO PROMOTE AND ENSURE EQUAL OPPORTUNITY WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN OR ANCESTRY IN EMPLOYMENT RELATED TO ALL AS AMENDED.

SECTION 5.2 OF THE ILLINOIS EEO REGULATIONS REQUIRES ALL BIDDERS ON CONSTRUCTION CONTRACTS SUBJECT TO ILLINOIS' COMPETITIVE BIDDING REQUIREMENTS TO SUBMIT WITH THEIR BIDS, A BIDDER'S EMPLOYEE UTILIZATION FORM SETTING FORTH A PROJECTION AND BREAKDOWN OF THE TOTAL WORKFORCE TO BE HIRED AND/OR ALLOCATED TO SUCH CONTRACT WORK, INCLUDING A PROJECTION OF MINORITY AND FEMALE EMPLOYEE UTILIZATION IN ALL JOB CLASSIFICATIONS TO BE USED ON THE CONTRACT PROJECT. THE MANPOWER UTILIZATION ANALYSIS NECESSARY FOR THIS PROJECTION REQUIRES THE BIDDERS TO DETERMINE WHETHER THEY ARE UNDERUTILIZING MINORITY PERSONS AND/OR WOMEN IN ANY OF THEIR JOB CLASSIFICATIONS. IN ORDER TO MAKE THIS DETERMINATION, BIDDERS ARE SUPPOSED TO TAKE INTO ACCOUNT THE FACTORS LISTED IN SECTION 4.2 OF THE ILLINOIS REGULATIONS, WHICH STATES IN PERTINENT PART:

(A) UNDERUTILIZATION OF MINORITIES MEANS HAVING FEWER MINORITY WORKERS IN A PARTICULAR JOB CLASSIFICATION THAN WOULD REASONABLY BE EXPECTED BY THEIR AVAILABILITY. THE AVAILABILITY OF MINORITY WORKERS FOR ANY JOB CLASSIFICATION SHALL BE DETERMINED BY THE MINORITY POPULATION PERCENTAGES OF THE AREAS) FROM WHICH THE CONTRACTOR OR SUBCONTRACTOR MAY REASONABLY RECRUIT AND THE UNEMPLOYMENT RATES OF MINORITIES AS COMPARED TO UNEMPLOYMENT RATES OF NONMINORITIES IN SUCH AREAS). IN ADDITION, THE CONTRACTOR OR SUBCONTRACTOR SHALL CONSIDER IN SUCH RECRUITMENT AREAS):

(I) THE SIZE OF THE MINORITY UNEMPLOYMENT FORCE;

(II) THE NUMBERS OF MINORITIES HAVING REQUISITE SKILLS;

(III) THE PROMOTABLE AND TRANSFERABLE MINORITIES WITHIN THE CONTRACTOR'S OR SUBCONTRACTOR'S ORGANIZATION;

(IV) THE EXISTENCE OF TRAINING INSTITUTIONS CAPABLE OF TRAINING PERSONS IN THE REQUISITE SKILLS; AND

(V) THE DEGREE OF TRAINING WHICH THE CONTRACTOR OR SUBCONTRACTOR IS REASONABLY ABLE TO UNDERTAKE AS A MEANS OF MAKING ALL JOB CLASSIFICATIONS AVAILABLE TO MINORITIES.

UNDERUTILIZATION OF WOMEN IS DEFINED IN SIMILAR TERMS IN SECTION 4.2(B).

IF THE BIDDER DETERMINES THAT IT IS, AT PRESENT, UNDERUTILIZING MINORITY PERSONS AND/OR WOMEN, IT ALSO IS REQUIRED TO SUBMIT WITH ITS BID AN AFFIRMATIVE ACTION PLAN, INCLUDING A DESCRIPTION OF ITS SECTION 4.2 WORKFORCE ANALYSIS AND GOALS AND TIMETABLES TO WHICH THE BIDDER'S RECRUITMENT, HIRING AND PROMOTION EFFORTS WILL BE DIRECTED TO CORRECT THIS UNDERUTILIZATION.

AFTER THE AWARD OF THE CONTRACT BUT PRIOR TO PERFORMANCE, SECTION 5.2 REQUIRES THAT:

(B) THE CONTRACTING AGENCY LETTING SUCH A CONTRACT SHALL REVIEW THE EMPLOYEE UTILIZATION FORM, AND WORKFORCE PROJECTIONS CONTAINED THEREIN, OF THE CONTRACT AWARDEE TO DETERMINE IF SUCH PROJECTIONS REFLECT AN UNDERUTILIZATION OF MINORITY PERSONS AND/OR WOMEN IN ANY JOB CLASSIFICATION IN ACCORDANCE WITH THE EQUAL EMPLOYMENT OPPORTUNITY CLAUSE AND SECTION 4.2 HEREOF. IF IT IS DETERMINED THAT THE CONTRACT AWARDEE'S PROJECTIONS REFLECT AN UNDERUTILIZATION OF MINORITY PERSONS AND/OR WOMEN IN ANY JOB CLASSIFICATION, IT SHALL BE ADVISED IN WRITING OF THE MANNER IN WHICH IT IS UNDERUTILIZING AND SUCH AWARDEE SHALL BE CONSIDERED TO BE IN BREACH OF THE CONTRACT UNLESS, PRIOR TO COMMENCEMENT OF WORK ON THE CONTRACT PROJECT, IT SUBMITS AN ACCEPTABLE WRITTEN AFFIRMATIVE ACTION PLAN TO CORRECT SUCH UNDERUTILIZATION INCLUDING A SPECIFIC TIMETABLE GEARED TO THE COMPLETION STAGES OF THE CONTRACT.

SHOULD THE CONTRACT AWARDEE FAIL TO SUBMIT AN ACCEPTABLE WRITTEN AFFIRMATIVE ACTION PLAN OR OTHERWISE FAIL TO COMPLY WITH THE EEO REGULATIONS, IFEPC MAY TERMINATE THE CONTRACT AND/OR ISSUE A SHOW CAUSE NOTICE AND PROCEED TO A HEARING LEADING TO DEBARMENT, SUSPENSION, CANCELLATION, WITHHOLDING PROGRESS PAYMENTS OR ASSESSMENT OF STATUTORY MONETARY PENALTIES.

OFCC HAS CONDITIONALLY APPROVED THE ILLINOIS REGULATIONS UNDER 41 CFR 60- 1.4(B)(2) AS NOT BEING INCONSISTENT WITH THE PURPOSES AND OBJECTS OF EXECUTIVE ORDER 11246 AND NOT BEING INCOMPATIBLE WITH THE FEDERAL EEO PLANS IN EFFECT IN ILLINOIS, PROVIDED THAT OUR OFFICE SUBSEQUENTLY DETERMINES THAT THESE REGULATIONS ARE CONSISTENT WITH THE BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW. IN THIS REGARD, OFCC NOTES THAT THESE REGULATIONS ARE IN APPARENT CONFLICT WITH THE PRINCIPLES ENUNCIATED IN OUR DECISIONS IN 47 COMP. GEN. 666 (1967) AND 48 ID. 326 (1968). OUR DECISION IN 48 COMP. GEN. SUPRA CONCERNED FEDERAL EEO REQUIREMENTS ON FEDERALLY ASSISTED CONSTRUCTION CONTRACTS IN WHICH WE HELD:

*** WE BELIEVE IT IS FUNDAMENTAL THAT COMPETITIVE BIDDING PROCEDURES SHOULD REQUIRE INVITATIONS FOR BIDS TO BE SO DRAFTED AS TO OFFER EQUAL AND UNAMBIGUOUS TERMS AND CONDITIONS TO ALL BIDDERS. NO PROSPECTIVE CONTRACTOR CAN INTELLIGENTLY COMPUTE HIS BID, OR EVEN DECIDE THAT HE WISHES TO INCUR THE EXPENSES OF COMPETING FOR THE CONTRACT, WITHOUT BEING FULLY INFORMED BEFOREHAND OF ALL FACTORS WHICH WILL MATERIALLY AFFECT THE COST OF HIS WORK OR HIS ABILITY TO PERFORM INCLUDING HIS HIRING METHODS, PERSONNEL QUALIFICATIONS AND SUBCONTRACTORS. UNLESS THE INVITATIONS ARE DEFINITE AND COMPLETE AS TO ALL ESSENTIAL REQUIREMENTS THERE CAN BE NO ACCURATE AND INDISPUTABLE BASIS ON WHICH TO DETERMINE WHICH BID OFFERS COMPLIANCE WITH CONTRACT CONDITIONS AND FULFILLMENT OF ALL PROJECT NEEDS AT THE LOWEST PRICE. FURTHER, WHERE MATERIAL CONDITIONS AND REQUIREMENTS ARE NOT CLEARLY DEFINED, SUCH CIRCUMSTANCE GIVES RISE TO THE OPPORTUNITY FOR FAVORITISM, ARBITRARY ACTION AND ABUSE OF AUTHORITY IN THE AWARDING, OR APPROVING OF PROPOSED AWARDS, OF THE CONTRACTS.

WE PERCEIVE NO COMPELLING REQUIREMENT IN THE CIRCUMSTANCES OUTLINED ABOVE FOR DIFFERENTIATION IN THE OBSERVANCE AND APPLICATION OF THE BASIC PRINCIPLES OF COMPETITIVE BIDDING, WHETHER SUCH BIDDING IS REQUIRED BY FEDERAL STATUTE AS A PREREQUISITE TO THE OBLIGATION OF PUBLIC FUNDS OR IS REQUIRED BY PUBLISHED REGULATIONS, RULES AND POLICIES FORMULATED BY THE DEPARTMENTS IN THE IMPLEMENTATION OF SUCH STATUTES. ACCORDINGLY, IN OUR VIEW WHERE FEDERALLY ASSISTED CONTRACTS ARE REQUIRED TO BE AWARDED ON THE BASIS OF PUBLICITY ADVERTISED BIDDING, AWARD MAY NOT PROPERLY BE WITHHELD PURSUANT TO THE PLAN FROM THE LOWEST RESPONSIBLE AND OTHERWISE RESPONSIVE BIDDER ON THE BASIS OF AN UNACCEPTABLE AFFIRMATIVE ACTION PROGRAM, UNTIL PROVISION IS MADE FOR INFORMING PROSPECTIVE BIDDERS OF DEFINITE MINIMUM REQUIREMENTS TO BE MET BY THE BIDDER'S PROGRAM AND ANY OTHER STANDARDS OR CRITERIA BY WHICH THE ACCEPTABILITY OF SUCH PROGRAM WOULD BE JUDGED.

ALTHOUGH IT MAY BE TRUE THAT THE PRESENT LACK OF SPECIFIC DETAIL AND RIGID GUIDELINE REQUIREMENTS FOR AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM PERMITS THE UTMOST IN CREATIVITY, INGENUITY AND IMAGINATION, IT IS EQUALLY TRUE THAT IT PERMITS DENIAL OF A CONTRACT TO THE LOW BIDDER TO BE BASED ON PURELY ARBITRARY OR CAPRICIOUS DECISIONS, AND AWARD TO BE MADE ON THE BASIS OF SIMILAR DECISIONS. WE DO NOT BELIEVE THAT A STATEMENT OF THOSE MINIMUM REQUIREMENTS DEEMED NECESSARY FOR AN ACCEPTABLE PROGRAM WOULD UNDULY INTERFERE WITH THE PROPER CHOICE OF BIDDERS FULLY QUALIFIED AND SINCERELY DESIROUS OF PERFORMING IN FULL CONFORMITY WITH ALL LEGAL REQUIREMENTS.

SPECIFICALLY, OFCC HAS ASKED WHETHER THE ILLINOIS EEO REQUIREMENTS INCLUDED IN INVITATIONS FOR BIDS ON FEDERALLY ASSISTED PROJECTS MUST COMPLY WITH THE BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW EXPRESSED IN 48 COMP. GEN. SUPRA AND, IF SO, WHETHER THE ILLINOIS EEO REQUIREMENTS CONTAIN THE NECESSARY DEFINITE MINIMUM STANDARDS AND CRITERIA APPRISING THE PROSPECTIVE BIDDERS OF THE BASIS UPON WHICH THEIR COMPLIANCE WITH THE EEO REQUIREMENTS WILL BE JUDGED.

IT IS CLEAR THAT A GRANTEE RECEIVING FEDERAL FUNDS TAKES SUCH FUNDS SUBJECT TO ANY STATUTORY OR REGULATORY RESTRICTIONS WHICH MAY BE IMPOSED BY THE FEDERAL GOVERNMENT. 41 COMP. GEN. 134, 137 (1961); 42 ID. 289, 293 (1962); 50 ID. 470, 472 (1970), STATE OF INDIANA V. EWING, 99 F. SUPP. 734 (1951), CAUSE REMANDED 195 F.2ND 556 (1952). THEREFORE, ALTHOUGH THE FEDERAL GOVERNMENT IS NOT A PARTY TO CONTRACTS AWARDED BY ITS GRANTEES, A GRANTEE MUST COMPLY WITH THE CONDITIONS ATTACHED TO THE GRANT IN AWARDING FEDERALLY ASSISTED CONTRACTS.

WE BELIEVE THAT, WHERE OPEN AND COMPETITIVE BIDDING OR SOME SIMILAR REQUIREMENT IS REQUIRED AS A CONDITION TO RECEIPT OF A FEDERAL GRANT, CERTAIN BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW MUST BE FOLLOWED BY THE GRANTEE IN SOLICITATIONS WHICH IT ISSUES PURSUANT TO THE GRANT. COMP. GEN. 251 (1957); 48 COMP. GEN, SUPRA. IN THIS REGARD, IT IS TO BE NOTED THAT THE RULES AND REGULATIONS OF THE VAST MAJORITY OF FEDERAL DEPARTMENTS AND AGENCIES SPECIFY GENERALLY THAT GRANTEES SHALL AWARD CONTRACTS USING GRANT FUNDS ON THE BASIS OF OPEN AND COMPETITIVE BIDDING. THIS IS NOT TO SAY THAT ALL OF THE INTRICACIES AND CONDITIONS OF FEDERAL PROCUREMENT LAW ARE INCORPORATED INTO A GRANT BY VIRTUE OF THIS CONDITION OF OPEN AND COMPETITIVE BIDDING. SEE B-168434, APRIL 1, 1970; B-168215, SEPTEMBER 15, 1970; B-173126, OCTOBER 21, 1971; B 178582, JULY 27, 1973. HOWEVER, WE DO BELIEVE THAT THE GRANTEE MUST COMPLY WITH THOSE PRINCIPLES OF PROCUREMENT LAW WHICH GO TO THE ESSENCE OF THE COMPETITIVE BIDDING SYSTEM. SEE 37 COMP. GEN. SUPRA. ONE OF THESE BASIC PRINCIPLES IS THAT ALL BIDDERS MUST BE ADVISED IN ADVANCE AS TO THE BASIS UPON WHICH THEIR BIDS WILL BE EVALUATED, SO THAT THEY MAY COMPETE FOR AWARD ON AN EQUAL BASIS. 36 COMP. GEN. 380, 385 (1956); 37 ID. SUPRA; 48 ID. SUPRA; B179914, MARCH 26, 1974. THEREFORE, ALTHOUGH OUR DECISION IN 48 COMP. GEN. SUPRA ONLY CONCERNED FEDERAL EEO REQUIREMENTS CONTAINED IN SOLICITATIONS ON FEDERALLY ASSISTED PROJECTS, WE BELIEVE THE PRINCIPLES DISCUSSED IN THAT DECISION GO TO THE ESSENCE OF THE COMPETITIVE BIDDING SYSTEM AND, THEREFORE, MUST ALSO APPLY TO STATE EEO REQUIREMENTS ON FEDERALLY ASSISTED CONTRACTS, SUCH AS THOSE IMPOSED BY IFEPC.

THE BROAD SUBJECTIVE FACTORS SET OUT IN SECTION 4.2 OF THE ILLINOIS REGULATIONS, WHICH PROSPECTIVE BIDDERS ARE SUPPOSED TO CONSIDER IN DETERMINING WHETHER THEIR PROPOSED WORKFORCE UNDERUTILIZES MINORITY PERSONS AND/OR WOMEN, HARDLY CONSTITUTE DEFINITE MINIMUM REQUIREMENTS, AND, THEREFORE, CANNOT REALLY PUT ANY BIDDER ON NOTICE AS TO WHAT IT MUST ACTUALLY DO TO QUALIFY ITS WORKFORCE IN ORDER TO RECEIVE AN EFFECTIVE AWARD. IN THIS REGARD, IT SHOULD BE NOTED THAT THE ILLINOIS REGULATIONS IN NO WAY INDICATE FROM WHAT SOURCES) THE PROSPECTIVE BIDDERS ARE TO OBTAIN THE STATISTICAL DATA REQUIRED TO GIVE THESE FACTORS MEANING OR HOW THE BIDDERS ARE TO INTERRELATE THE VARIOUS FACTORS TO COME UP WITH EVEN A ROUGH NUMBER OR PERCENTAGE, SO THAT THE BIDDERS CAN MAKE SOME RATIONAL JUDGMENT AS TO WHAT WILL BE EVENTUALLY DEMANDED OF THEM BY THE CONTRACTING AGENCY AND/OR IFEPC. MOREOVER, EVEN IF A PROSPECTIVE BIDDER CAN, BY ITS OWN SUBJECTIVE STANDARDS, DETERMINE WHETHER IT, IN ITS OPINION, IS SUFFICIENTLY UTILIZING MINORITY PERSONS AND/OR WOMEN, THERE CAN BE NO ASSURANCE THAT THE CONTRACTING AGENCY AND/OR IFEPC MAY FIND, FOR THEIR OWN REASONS, THAT A HIGHER PERCENTAGE OF THESE PERSONS MUST BE UTILIZED FOR THE PARTICULAR CONTRACT.

FURTHERMORE, THESE SAME BASIC PRINCIPLES OF COMPETITIVE BIDDING REQUIRE THAT AWARD SHOULD NOT BE DEPENDENT ON THE LOW BIDDER'S ABILITY TO SUCCESSFULLY NEGOTIATE MATTERS MENTIONED ONLY VAGUELY BEFORE BID OPENING. IN THE PRESENT CASE, A "SUCCESSFUL" BIDDER IS REQUIRED TO SO NEGOTIATE THE ELEMENTS OF HIS AFFIRMATIVE ACTION PLAN, PURSUANT TO SECTION 5.2 OF THE ILLINOIS REGULATIONS, AS A CONDITION PRECEDENT TO COMMENCEMENT OF PERFORMANCE UNDER THE CONTRACT. ACCORDINGLY, IN VIEW OF THE FOREGOING, WE ARE OF THE VIEW THAT THE ILLINOIS REGULATIONS DO NOT COMPLY WITH THE BASIC PRINCIPLES OF THE COMPETITIVE BIDDING SYSTEM SET FORTH IN 48 COMP. GEN. SUPRA. WE DO NOT BELIEVE THE FACT THAT THE EEO CONFERENCE REQUIRED UNDER THE ILLINOIS REGULATIONS TAKES PLACE AFTER AWARD BUT PRIOR TO THE CONTRACT'S PERFORMANCE (TO BE CONTRASTED WITH THE SITUATION IN 48 COMP. GEN. SUPRA, WHERE THE EEO CONFERENCE TOOK PLACE AFTER BID OPENING BUT PRIOR TO AWARD) SHOULD EXEMPT THE ILLINOIS REGULATIONS FROM THE APPLICATION OF THESE BASIC PRINCIPLES OF THE COMPETITIVE BIDDING SYSTEM, SINCE AN AWARD IN SUCH CIRCUMSTANCES MUST BE VIEWED AS AN AWARD SUBJECT TO A CONDITION SUBSEQUENT. INDEED, THERE APPEARS TO BE EVEN GREATER REASON FOR APPLICATION OF THESE BASIC PRINCIPLES IN SUCH A CASE BECAUSE THE CONTRACTING AGENCY HAS MORE LEVERAGE ON THE "SUCCESSFUL" BIDDER TO FORCE HIM TO COMPLY WITH ITS VERSION OF AN APPROPRIATE AFFIRMATIVE ACTION PLAN OR ELSE BE HELD IN BREACH OF CONTRACT EVEN BEFORE PERFORMANCE UNDER THE CONTRACT IS BEGUN.

THE ILLINOIS EEO REGULATIONS WERE APPARENTLY ROUGHLY PATTERNED AFTER OFCC'S REVISED ORDER NO. 4, 41 CFR 60-2, WHICH CONCERNS EEO REQUIREMENTS ON FEDERAL NONCONSTRUCTION CONTRACTS. WE NOTE THAT REVISED ORDER NO. 4 ALSO SEEMS TO BE IN VIOLATION OF THE BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW AND WE ARE BRINGING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF LABOR.

HOWEVER, IT SHOULD BE NOTED THAT THERE ARE CERTAIN ESSENTIAL DIFFERENCES BETWEEN THE CONSTRUCTION INDUSTRY AND THE NONCONSTRUCTION INDUSTRIES, WHICH MAKE PERMISSIBLE DIFFERENT METHODS FOR IMPLEMENTING EEO OBJECTIVES IN CONSTRUCTION CONTRACTS AND NONCONSTRUCTION CONTRACTS. TRADITIONALLY, THE CONSTRUCTION INDUSTRY HAS HAD A FLOATING WORKFORCE, SO THAT IN EACH NEW CONTRACT THERE WOULD BE ESSENTIALLY A NEW WORKFORCE, WHICH WOULD BE SUSCEPTIBLE TO THE SETTING OF DEFINITE EEO STANDARDS FOR EACH CONTRACT. THIS IS NOT THE SITUATION IN OTHER INDUSTRIES WHICH ORDINARILY HAVE A RELATIVELY FIXED BASIC WORKFORCE AT EACH FACILITY, WHERE IT WOULD BE VIRTUALLY IMPOSSIBLE TO SET EEO STANDARDS ON A CONTRACT BY CONTRACT BASIS.

IN VIEW OF THE FOREGOING, WE BELIEVE THAT THE ILLINOIS EEO REGULATIONS ARE INCONSISTENT WITH THE BASIC PRINCIPLES OF FEDERAL PROCUREMENT LAW.