IV. SUMMARY

The Philadelphia Plan is a valid exercise by the Department of Labor of authority granted by Executive Order 11246. It is apparently conceded by the Comptroller General that the Ohio Supreme Court opinion in Weiner is in point. However, the issue has not yet been decided by the Supreme Court of the United States.

The authority of the President to require affirmative steps to arrest discrimination in employment by federal contractors has been unquestioned for many years and is founded upon the President's duty to uphold the Constitution. The Philadelphia Plan is a reasonable and fair method of correcting drastic discriminatory practices, found to have amounted to practical exclusion of minority groups from particular trades in a defined geographical area, and is not forbidden by the Civil Rights Act of 1964, a measure designed to strengthen, not weaken, the opportunity of all citizens to receive fair treatment in the competition for employment.

Legislative Materials

ACCOUNTING AND AUDITING

CROSS REFERENCES

Audit and settlement of accounts, see section 71 et seq. of this title.

SUBCHAPTER I.-GENERAL PROVISIONS

§ 65. Congressional declaration of policy.

It is the policy of the Congress in enacting this chapter that— (a) The accounting of the Government provide full disclosure of the results of financial operations, adequate financial information needed in the management of operations and the formulation and execution of the Budget, and effective control over income, expenditures, funds, property, and other assets.

(b) Full consideration be given to the needs and responsibilities of both the legislative and executive branches in the establishment of accounting and reporting systems and requirements.

(c) The maintenance of accounting systems and the producing of financial reports with respect to the operations of executive agencies, including central facilities for bringing together and disclosing information on the results of the financial operations of the Government as a whole, be the responsibility of the executive branch.

(d) The auditing for the Government, conducted by the Comptroller General of the United States as an agent of the Congress be directed at determining the extent to which accounting and related financial reporting fulfill the purposes specified, financial transactions have been consummated in accordance with laws, regulations or other legal requirements, and adequate internal financial control over operations is exercised, and afford an effective basis for the settlement of accounts of accountable officers.

(e) Emphasis be placed on effecting orderly improvements resulting in simplified and more effective accounting, financial reporting, budgeting, and auditing requirements and procedures and on the elimination of those which involve duplication or which do not serve a purpose commensurate with the costs involved.

(f) The Comptroller General of the United States, the Secretary of the Treasury, and the Director of the Bureau of the Budget conduct a continuous program for the improvement of accounting and financial reporting in the Government. Sept. 12, 1950, c. 946, Title I, pt. II, § 111, 64 Stat. 834.

HISTORICAL NOTE

Short Title: Congress, in enacting this chapter, provided by section 110 of Act Sept. 12, 1950, that it should be popularly known as the "Accounting and Auditing Act of 1950".

Legislative History: For legislative history and purpose of Act Sept. 12, 1950, see 1950 U.S. Code Cong. Service, p. 3707.

ACCOUNTS

§ 73. Repealed. Aug. 17, 1950, c. 735, § 10(a)(2), 64 Stat. 462

HISTORICAL NOTE

Section, R. S. § 277, related to accounts of the Post Office Department, and is now covered by sections 794-794f of Title 39, The Postal Service.

Effective Date of Repeal: Repeal as effective on the nineteenth day, following Aug. 17, 1950, see note set out under section 794 of Title 39, The Postal Service. § 74. Certified balances of public accounts; conclusiveness; suspension of items; preservation of adjusted accounts; decision upon questions involving payments

Balances certified by the General Accounting Office, upon the settlement of public accounts, shall be final and conclusive upon the Executive Branch of the Government, except that any person whose accounts may have been settled, the head of the Executive Department, or of the board, commission, or establishment not under the jurisdiction of an Executive Department, to which the account pertains, or the Comptroller General of the United States, may, within a year, obtain a revision of the said account by the Comptroller General of the United States, whose decision upon such revision shall be final and conclusive upon the Executive Branch of the Government. Nothing in this chapter shall prevent the General Accounting Office from suspending items in an account in order to obtain further evidence or explanations necessary to their settlement.

The General Accounting Office shall preserve all accounts which have been finally adjusted, together with all vouchers, certificates, and related papers, until disposed of as provided by law.

Disbursing officers, or the head of any executive department, or other establishment not under any of the executive departments, may apply for and the Comptroller General shall render his decision upon any question involving a payment to be made by them or under them, which decision, when rendered, shall govern the General Accounting Office in passing upon the account containing said disbursement. July 31, 1894, c. 174, § 8, 28 Stat. 207; June 10, 1921, c. 18, Title III, § 304, 42 Stat. 24; Oct. 25, 1951, c. 562, § 3(1), 65 Stat. 639.

HISTORICAL NOTE

Codification, Section was part of the Dockery Act of July 31, 1894, c. 174. A provision at the end of this section, omitted here, repealed R.S. §§ 191 and 270. R.S. § 191, so repealed, made settlements of public accounts in the Treasury Department conclusive upon the executive branch of the Government. R.S. § 270, also repealed thereby, authorized an appeal to the First Comptroller from settlements of postal accounts.

Prior to its incorporation into the Code, section contained further provisions concerning the conclusiveness of balances certified, revision by the Comptroller of the Treasury, and suspension of items of accounts until approval or disapproval by the Comptroller of the Treasury of decisions by Auditors construing statutes. They were omitted as superseded by Act June 10, 1921, c. 18, particularly sections 301, 304, and 310.

Orders, Opinions, Decisions, and Memoranda

PHILADELPHIA EXECUTIVE BOARD,

October 27, 1967.

To: All members of the Philadelphia Federal Executive Board.
From: Warren P. Phelan, chairman.

Subject: Philadelphia pre-award plan starting date.

In accordance with the announcement made at our Federal Executive Board meeting on October 10, I am pleased to confirm November 30th as the starting date for pre-award examinations for all federal contracting agencies participating in the Philadelphia Pre-Award Plan.

As FEB Chairman, on Monday, October 30, I will convene all federal Equal Employment officers, whose authority and responsibility cover the Philadelphia area, to establish an immediate schedule of pre-award examinations.

The Philadelphia Plan has received approval from nearly all of the federal contracting agencies in the area. The participating agencies represent almost 95% of the federal contracts anticipated in the year ahead. Thus, we expect the Philadelphia Plan to have maximum impact on EEO enforcement through affirmative action requirements.

Attached is a copy of the revised Operational Plan. The changes reflect certain corrections and additions, agreed upon by the sub-committee members, to clarify and emphasize the need for: (1) compliance reviews of current projects; (2) contractors' responsibility for recruitment of apprentices; (3) inclusion of affirmative action description in invitation to bid; and (4) additional information for the sub-committee chairman.

WARREN P. PHELAN.

A. Federal Executive Board-Construction Contract Compliance Committee: Purpose and Goals

The purpose of this committee is to aid the Federal Executive Board, and each of the agency members, in the coordination of a concerted, multi-agency approach to EEO enforcement procedures, which are required by the Rules and Regulations issued pursuant to Executive Order 11246. Additional benefits of the plan will be in the elimination of disparate federal agency contractor requirements, and alleviation of duplication and overlap among local, state and federal EEO offices. Achievement of these goals will aptly demonstrate the essence of "creative federalism."

The Philadelphia plan is being initiated in the five-county Philadelphia area (Bucks, Chester, Delaware, Montgomery, and Philadelphia) commensurate with the Mission Statement of the Contract Compliance Committee, recently approved by the FEB.

The mandate given to the FEB, through the authority of its operational and informational responsibilities, has placed a high priority on activities concerning Equal Employment Opportunity. Nationally, and within each Federal community, it is the obligation and responsibility of each Federal Manager to carry out a positive EEO program with his construction contractors and throughout his community. This has been repeatedly emphasized by Chairman Macy, President Kennedy and President Johnson since the establishment of the FEB in 1961. Regulations implementing the Civil Rights Act of 1964, and Executive Order 11246 in 1965 stress this obligation.

Each federal agency is responsible for obtaining EEO compliance on its contracts by requiring each federal contractor to develop and carry out an affirmative action program to achieve EEO results on his project. Although "affirmative action" is criticized as ambiguous, the very lack of specific detail and rigid guideline requirements, permits the utmost in creativity, ingenuity and imagination. The contractor is expected to use the same resourcefulness in making opportunities available to minorities as he applies to other aspects of his business: financial soundness, safety standards, new engineering techniques; new business acquisition; etc. Both the contractor and the craft union must be made aware of the vast community resources which could be utilized to help the contractor fulfill his contractual obligation in EEO. As the contractor achieves the necessary EEO requirements, the craft union is assured of a continued workload for its members through subsequent federal contracts.

The FEB Contract Compliance Committee should direct its efforts into three broad areas:

First, the continuance and further development of standard and/or compatible procedures for pre-award examinations, specific affirmative action programs, compliance reviews, regular site project checks and evaluation (head counts, work schedules, etc.), and a program of continuous follow-through, requiring each contractor to achieve an adequate EEO compliance record.

Secondly, to develop a truly uniform, area approach, compliance reviews should be initiated with construction projects now underway which have not had a pre-award examination. The same objectives of affirmative action should be required to the contractor even though, due to the advanced stage of construction, their application may have to be somewhat more flexible, and the expected results proportionately less.

Thirdly, and concurrently with the Plan's major thrust on preaward examinations and compliance reviews, the FEB Contract Compliance Committee must develop all possible community resources in recruitment and referral.

Just as a diligent enforcement program can induce the contractors and unions to "open up" for minority groups, strong recruitment and training programs show the minority groups that the way is really open. To fulfill their contractual EEO responsibility, pospective government contractors must direct their efforts specifically toward minority group recruitment of apprentices, journeymen, subcontractors, and the upgrading of present minority group craftsmen to higher paid trades. While a strong effort is needed in each of these areas of recruitment by the contractors, local union effort is more frequently directed toward apprentice recruitment. Accordingly, the federal contracting agency may wish to stress the need for the contractors' efforts in recruitment of "instant" journeymen, upgrading of present minority craftsmen, and solicitation of minority subcontractors.

Federal Executive Board activities, though unlimited in scope and selfgenerating in nature, tend to focus in certain areas: inter-agency exchanges of information and solutions; coordination of related programs in personnel utilization and physical resources; and liaison with state and local governmental units. The FEB Contract Compliance Committee in its Mission Statement affirms responsibility for liaison and/or advisory relationship with all significant segments of the community concerned with EEO: civil rights groups; contractor associations; building trade councils; union locals; commerce and industry groups; and community organizations.

To implement its enforcement program, and to make its recruitment efforts most productive, the Committee should consider:

1. Meeting with selected unions, and their contractor association counterparts for evaluation of apprenticeship selection procedures and entrance requirements. Sought here will be more frequent examinations, larger classes, and direct contact with minority recruitment sources such as military service discharge centers.

2. The development of a training or assistance program with Negro contractors, sub-contractors, and individual, non-union Negro craft workers. This program could use SBA and local university manpower specialists. It could provide basic information on bonding and financial help, work planning and control, federal award bidding, selling methods, business law, licensing, building codes, and requirements for Building Trades Council certification.

3. An approach to the city administration and the appropriate federal and local agencies to develop a massive training component in the 70-90 million dollar used-house program. This would assure maximum manpower development and utilization in an area of anticipated shortage of skilled craft workers. Such a training program could provide on-the-job training and income for presently unskilled or semi-skilled workers currently unemployed. 4. Meetings with civil rights groups to learn of their specific ideas and problems about equal employment opportunities in the building trades. Such a meeting could also be used to explain the Committee's efforts to the community and to ask for their cooperation.

5. Meetings with GBCA and other Contractor Associations to aid them in developing a more effective public relations and recruitment program with the minority group community. One concrete step could be their addition of staff to recruit directly with minority group organizations.

6. Development through local groups of labor and civil rights people, of a pre-apprenticeship training and cram course program similar to the WDLprogram in New York City.

7. Liaison with the Construction Industry Compliance Committee formed by the Philadelphia Commission on Human Relations and several other city agencies and local community organizations. This would coordinate the federal agency and local agency EEO efforts.

B. Program Procedures and Requirements of the Committee

The Philadelphia Plan will be administered by the FEB Contract Compliance Committee. The program will include the participation of the Office of Federal Contract Compliance, the Equal Employment Opportunities Commission, the Community Relations Service (Department of Justice, and the U.S. Attorney's office. Either the Director, or the Assistant Director for Construction, of the Office of Federal Contract Compliance, will personally participate in each significant event in the Philadelphia area during this program.

In order that the FEB Contract Compliance in Construction Subcommittee, and the other Federal agencies may give the necessary support and assistance to each contracting agency's pre-award examinations and compliance reviews, the Philadelphia FEB Chairman has designated Bennett O. Stalvey, Jr., OFCC Area Coordinator, as Chairman of the Contract Compliance Sub-committee. Please send to him:

(a) A copy of each announcement, or invitation to bid, or advice of proposed construction, at the same time it is sent to prospective bidders; (b) The identity of the apparent low-bidder as soon as determined;

(c) At least 15 days advance notice of each scheduled pre-award examination or compliance review;

(d) A copy of the written affirmative action program submitted by prospective contractors, or low-bidders, so that the program may be reviewed before the contract is awarded; and

(e) (When applicable) Notification of contract withdrawal, or decision to withhold award. Under the Committee procedure each apparent low-bidder shall submit, on behalf of himself and his prospective major sub-contractors, written affirmative action programs setting forth details on how he proposes to act affirmatively. The programs must have the results of assuring that there will be minority group representation in all trades on the job and in all phases of the work, as required by Executive Order 11246 and the FEB-CCC Operational Plan. Most of the necessary compliance effort activity will involve the higher paid trades such as electrical, sheetmetal work, plumbing, roofing, structural ironwork, steamfitting, elevator construction, and operating engineers. No program can be acceptable which does not deal satisfactorily and specifically with these trades if they are to be usd.

To have effective area impact, compliance reviews of projects now under construction should also be guided by these pre-award program requirements. The Philadelphia program differs from the programs now underway in Cleveland, San Francisco and St. Louis because, here, the impetus emanates from the Federal Executive Board through its Contract Compliance Committee. The other Federal agencies involved, the OFCC, EEOC, CRS, and the U.S. Attorney's office, have agreed to provide their full support and authority to the Committee's plan.

The following should be emphasized by each contracting agency officer during the pre-award examination:

(1) All contractors and sub-contractors are responsible for designing an affirmative action program which will result in equal employment opportunity. They are expected to exercise the same imagination and ingenuity in solving these problems as they do in any other aspect of their management, although the contracting agency, the Committee and representatives of OFCC, EEOC, CRS and the U.S. Attorney's office will wish to give them whatever assistance and support seem appropriate.

(2) Some elements of affirmative action may be best carried out by a common agent of contractors, such as a contractor association or a joint apprenticeship committee (JAC). If a contractor or sub-contractor chooses to request such an agent to assist it in carrying out its obligation, it should be encouraged to do so, but it cannot shift the responsibility to the association or other agent. An affirmative action program including such arrangements will be acceptable only if there is sufficient evidence that the agent's portion of the program will in fact be performed. Sufficient evidence, for example, may be determined by the extent to which the association, or other agent, has defined, financed, and staffed its program. Thus, mere agreement by a low bidder or contractor to ask his association, or JAC, to carry out a given program cannot, in itself, be an acceptable affirmative action.

Some of the ideas which federally-involved contractors and sub-contractors have used in developing acceptable programs include affirmative action in:

(a) Developing effective contacts with the administrators, faculty and students in vocational high schools. Their concerns could direct curriculum adaptation, and produce building trades career motivation, with emphasis on minority youth;

(b) Cultivating the interest of junior high school students, through formal and informal presentations on career guidance for the building trades;