8E Predetermination Notice

COs must use a PDN in discrimination cases following compliance evaluations conducted under Executive Order 11246, Section 503 and/or VEVRAA.409 The PDN must broadly describe the preliminary findings of potential discrimination and any other violations found, affording the contractor the opportunity to respond. COs should not use a PDN in cases in which there are only recordkeeping or affirmative action deficiencies, such as a failure to meet the standards for AAP acceptability. 410 The CO must consult with RSOL, BES, and other appropriate agency personnel in the national office prior to issuing the PDN.

After a CO identifies preliminary findings of potential discrimination, the CO must notify the contractor through a PDN before issuing an NOV. OFCCP may agree to waive the PDN and/or NOV to enter directly into a conciliation agreement with a contractor. OFCCP may offer the contractor this expedited conciliation option, but may not require or insist that the contractor avail itself of the expedited conciliation option. The CO must consult with their manager before offering this option to the contractor.

The PDN typically has three parts: a description of any preliminary findings of potential discrimination, a list of any other unresolved violations, and an offer of an opportunity to respond to the PDN with additional information or evidence. These three parts are described in more detail below. Letter L-35, Predetermination Notice, is a sample form letter for a PDN.

a. Description of the Potential Discrimination. In this, the first part of the PDN, a CO broadly describes all preliminary findings of potential discrimination. This description will include identification of the discrimination victim(s), e.g., the affected class or individual(s) and the employment action(s) giving rise to the preliminary findings (e.g., Preliminary findings of potential discrimination in the selection of female technicians). The PDN can include facts and the results of analyses that support the preliminary findings and recommended remedies. Typically, the PDN includes the magnitude of the impact in terms of shortfalls or pay disparities and the measure of statistical certainty (e.g., standard deviation). However, the agency need not provide the specific theory of proof or satisfy rigid evidentiary standards to provide preliminary notice of findings of discrimination.

b. Other Unresolved Issues. After describing the preliminary findings of potential discrimination, a CO identifies and addresses other unresolved deficiencies, such as affirmative action deficiencies that did not result in an “acceptable AAP” finding. A CO also identifies and addresses recordkeeping and technical violations, such as the contractor’s failure to post required notices.

c. Offer the Contractor the Opportunity to Respond. The PDN offers the contractor an opportunity to respond in writing within 15 calendar days.

If, after the receipt of a PDN, the contractor does not respond by the indicated date or obtain an extension, the CO will prepare a NOV incorporating the preliminary findings after consultation with RSOL, BES, and other appropriate agency personnel in the national office.411 The NOV will indicate that the contractor did not respond and/or did not rebut the discrimination issue (or any other issues raised in the PDN). New violations identified after OFCCP issues a PDN are included in a subsequent Notice of Violation or Show Cause Notice without amending and reissuing the PDN.

COs address PDNs to the top official at the establishment under review or the top official of the construction company in the economic area being reviewed. A copy is sent to the CEO of the corporation if the establishment or construction company is part of a larger corporation. If the contractor has submitted a written request that the CO provide a copy of the review or investigation correspondence to an outside representative such as an outside counsel or consultant, the CO will also send a copy to the designated representative. If the contractor requests that the CO provide the representative with the document, the CO should send a copy to the top official at the establishment and the CEO. When the CO provides copies to a corporate CEO, another contractor official or a designated representative, the CO will include a “cc:” line on all copies indicating the people to whom the PDN was sent.

COs always send a PDN by certified mail, return receipt requested, and email or facsimile.

The Regional Director, or designee, has signature authority for a PDN.

If the contractor does respond to the PDN, the CO should review the presented information. If there are issues requiring further investigation, the CO should request and analyze the additional information, as needed. The CO may conduct further investigation on-site or through an off-site review of records. The CO should determine whether the contractor’s response satisfactorily rebuts some or all of the allegations of discrimination in the PDN. For example, does the PDN response provide a legitimate, nondiscriminatory explanation (that is, an explanation that is not a pretext for discrimination) for alleged disparate treatment? The CO should also determine whether the contractor’s response satisfactorily rebuts any other violation findings made in the PDN. In evaluating the response, the CO should remember that unsupported contractor assertions, or assertions that the CO previously fully considered, are not sufficient to rebut findings of discrimination.

A contractor may respond to the PDN in one of three ways: with a full rebuttal of all the issues, with a partial rebuttal or with an inadequate rebuttal.

a. Contractor Adequately Rebuts. If the contractor’s response adequately rebuts all of the preliminary findings in the PDN and there are no other remaining issues, the CO will acknowledge acceptance of the response and issue an appropriate closure document.412

b. Some Issues Rebutted. If the contractor’s response adequately rebuts some, but not all, of the preliminary findings in the PDN, the CO should issue an NOV accepting the response in those areas where it was sufficient. The CO should address the remaining findings of violations with recommended corrective actions.

c. All Issues Inadequately Rebutted. If the contractor’s response does not rebut any of the preliminary findings in the PDN, the CO should acknowledge the response. The acknowledgment should also explain that the contractor’s response did not sufficiently rebut the preliminary findings and give an appropriate explanation. The CO should incorporate the PDN’s findings and recommended corrective actions into an NOV.