(a) OFCCP may conduct compliance evaluations to determine if the
contractor maintains nondiscriminatory hiring and employment practices
and is taking affirmative action to ensure that applicants are employed
and that employees are placed, trained, upgraded, promoted, and
otherwise treated during employment without regard to race, color,
religion, sex, or national origin. A compliance evaluation may consist
of any one or any combination of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of
the hiring and employment practices of the contractor, the written
affirmative action program, and the results of the affirmative action
efforts undertaken by the contractor. A compliance review may proceed in
three stages:
(i) A desk audit of the written AAP and supporting documentation to
determine whether all elements required by the regulations in this part
are included, whether the AAP meets agency standards of reasonableness,
and whether the AAP and supporting documentation satisfy agency
standards of acceptability. The desk audit is conducted at OFCCP
offices, except in the case of preaward reviews. In a preaward review,
the desk audit normally is conducted at the contractor's establishment.
(ii) An on-site review, conducted at the contractor's establishment
to investigate unresolved problem areas identified in the AAP and
supporting documentation during the desk audit, to verify that the
contractor has implemented the AAP and has complied with those
regulatory obligations not required to be included in the AAP, and to
examine potential instances or issues of discrimination. An on-site
review normally will involve an examination of the contractor's
personnel and employment policies, inspection and copying of documents
related to employment actions, and interviews with employees,
supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied
by the contractor or otherwise gathered during or pursuant to the on-
site review.
(2) Off-site review of records. An analysis and evaluation of the
AAP (or any part thereof) and supporting documentation, and other
documents related to the contractor's personnel policies and employment
actions that may be relevant to a determination of whether the
contractor has complied with the requirements of the Executive Order and
regulations;
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-1.12; at the contractor's
option the documents may be provided either on-site or off-site; or
(4) Focused review. An on-site review restricted to one or more
components of the contractor's organization or one or more aspects of
the contractor's employment practices.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion. Before
the contractor can be found to be in compliance with the order, it must
make a specific commitment, in writing, to correct any such
deficiencies. The commitment must include the precise action to be taken
and dates for completion. The time period allotted shall be no longer
than the minimum period necessary to effect such changes. Upon
approval of the commitment, the contractor may be considered in
compliance, on condition that the commitments are faithfully kept. The
contractor shall be notified that making such commitments does not
preclude future determinations of noncompliance based on a finding that
the commitments are not sufficient to achieve compliance.
(c) [Reserved]
(d) Preaward compliance evaluations. Each agency shall include in
the invitation for bids for each formally advertised nonconstruction
contract or state at the outset of negotiations for each negotiated
contract, that if the award, when let, should total $10 million or more,
the prospective contractor and its known first-tier subcontractors with
subcontracts of $10 million or more shall be subject to a compliance
evaluation before the award of the contract unless OFCCP has conducted
an evaluation and found them to be in compliance with the Order within
the preceding 24 months. The awarding agency will notify OFCCP and
request appropriate action and findings in accordance with this
subsection. Within 15 days of the notice OFCCP will inform the awarding
agency of its intention to conduct a preaward compliance evaluation. If
OFCCP does not inform the awarding agency within that period of its
intention to conduct a preaward compliance evaluation, clearance shall
be presumed and the awarding agency is authorized to proceed with the
award. If OFCCP informs the awarding agency of its intention to conduct
a preaward compliance evaluation, OFCCP shall be allowed an additional
20 days after the date that it so informs the awarding agency to provide
its conclusions. If OFCCP does not provide the awarding agency with its
conclusions within that period, clearance shall be presumed and the
awarding agency is authorized to proceed with the award.
(e) Submission of Documents; Standard Affirmative Action Formats.
Each prime contractor or subcontractor with 50 or more employees and a
contract of $50,000 or more is required to develop a written affirmative
action program for each of its establishments (Sec. 60-1.40). If a
contractor fails to submit an affirmative action program and supporting
documents, including the workforce analysis, within 30 days of a
request, the enforcement procedures specified in Sec. 60-1.26(b) shall
be applicable. Contractors may reach agreement with OFCCP on nationwide
AAP formats or on frequency of updating statistics.
(f) Confidentiality and relevancy of information. If the contractor
is concerned with the confidentiality of such information as lists of
employee names, reasons for termination, or pay data, then alphabetic or
numeric coding or the use of an index of pay and pay ranges, consistent
with the ranges assigned to each job group, are acceptable for purposes
of the compliance evaluation. The contractor must provide full access to
all relevant data on-site as required by Sec. 60-1.43. Where necessary,
the compliance officer may take information made available during the
on-site evaluation off-site for further analysis. An off-site analysis
should be conducted where issues have arisen concerning deficiencies or
an apparent violation which, in the judgment of the compliance officer,
should be more thoroughly analyzed off-site before a determination of
compliance is made. The contractor must provide all data determined by
the compliance officer to be necessary for off-site analysis. Such data
may only be coded if the contractor makes the key to the code available
to the compliance officer. If the contractor believes that particular
information which is to be taken off-site is not relevant to compliance
with the Executive Order, the contractor may request a ruling by the
OFCCP District/Area Director. The OFCCP District/Area Director shall
issue a ruling within 10 days. The contractor may appeal that ruling to
the OFCCP Regional Director within 10 days. The Regional Director shall
issue a final ruling within 10 days. Pending a final ruling, the
information in question must be made available to the compliance officer
off-site, but shall be considered a part of the investigatory file and
subject to the provisions of paragraph (g) of this section. The agency
shall take all necessary precautions to safeguard the confidentiality of
such information until a final determination is made. Such information
may not be copied by OFCCP and access to
the information shall be limited to the compliance officer and personnel
involved in the determination of relevancy. Data determined to be not
relevant to the investigation will be returned to the contractor
immediately.
(g) Public Access to Information. OFCCP will treat information
obtained in the compliance evaluation as confidential to the maximum
extent the information is exempt from public disclosure under the
Freedom of Information Act, 5 U.S.C. 552. It is the practice of OFCCP
not to release data where the contractor is still in business, and the
contractor indicates, and through the Department of Labor review
process it is determined, that the data are confidential and sensitive
and that the release of data would subject the contractor to commercial
harm.
[43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3, 1978, as amended at 62
FR 44189, Aug. 19, 1997]
