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Content Last Revised: 11/13/00 |
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Code of Federal Regulations Pertaining to U.S. Department of Labor |
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Public Contracts and Property Management |
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Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor |
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Affirmative Action Programs |
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General |
41 CFR 60-2.2 - Agency action.
- Section Number: 60-2.2
- Section Name: Agency action.
(a) Any contractor required by Sec. 60-2.1 to develop and maintain
a written affirmative action program for each of its establishments
that has not complied with that section is not in full compliance with
Executive Order 11246, as amended. When a contractor is required to
submit its affirmative action program to OFCCP (e.g., for a compliance
evaluation), the affirmative action program will be deemed to have been
accepted by the Government at the time OFCCP notifies the contractor of
completion of the compliance evaluation or other action, unless within
45 days thereafter the Deputy Assistant Secretary has disapproved such
program.
(b) If, in determining such contractor's responsibility for an
award of a contract it comes to the contracting officer's attention,
through sources within his/her agency or through the OFCCP or other
Government agencies, that the contractor does not have an affirmative
action program at each of its establishments, or has substantially
deviated from such an approved affirmative action program, or has
failed to develop or implement an affirmative action program which
complies with the regulations in this chapter, the contracting officer
must declare the contractor/bidder nonresponsible and so notify the
contractor and the Deputy Assistant Secretary, unless the contracting
officer otherwise affirmatively determines that the contractor is able
to comply with the equal employment obligations. Any contractor/bidder
which has been declared nonresponsible in accordance with the
provisions of this section may request the Deputy Assistant Secretary
to determine that the responsibility of the contractor/bidder raises
substantial issues of law or fact to the extent that a hearing is
required. Such request must set forth the basis upon which the
contractor/bidder seeks such a determination. If the Deputy Assistant
Secretary, in his/her sole discretion, determines that substantial
issues of law or fact exist, an administrative or judicial proceeding
may be commenced in accordance with the regulations contained in
Sec. 60-1.26; or the Deputy Assistant Secretary may require the
investigation or compliance evaluation be developed further or
additional conciliation be conducted: Provided, That during any pre-
award conferences, every effort will be made through the processes of
conciliation, mediation, and persuasion to develop an acceptable
affirmative action program meeting the standards and guidelines set
forth in this part so that, in the performance of the contract, the
contractor is able to meet its equal employment obligations in
accordance with the equal opportunity clause and applicable rules,
regulations, and orders: Provided further, That a contractor/bidder may
not be declared nonresponsible more than twice due to past
noncompliance with the equal opportunity clause at a particular
establishment or facility without receiving prior notice and an
opportunity for a hearing.
(c)(1) Immediately upon finding that a contractor has no
affirmative action program, or has deviated substantially from an
approved affirmative action program, or has failed to develop or
implement an affirmative action program which complies with the
requirements of the regulations in this chapter, that fact shall be
recorded in the investigation file. Except as provided in Sec. 60-
1.26(b)(1), whenever administrative enforcement is contemplated, the
notice to the contractor shall be issued giving the contractor 30 days
to show cause why enforcement proceedings under section 209(a) of
Executive Order 11246, as amended, should not be instituted. The notice
to show cause should contain:
(i) An itemization of the sections of the Executive Order and of
the regulations with which the contractor has been found in apparent
violation, and a summary of the conditions, practices, facts, or
circumstances which give rise to each apparent violation;
(ii) The corrective actions necessary to achieve compliance or, as
may be appropriate, the concepts and principles of an acceptable remedy
and/or the corrective action results anticipated;
(iii) A request for a written response to the findings, including
commitments to corrective action or the presentation of opposing facts
and evidence; and
(iv) A suggested date for the conciliation conference.
(2) If the contractor fails to show good cause for its failure or
fails to remedy that failure by developing and implementing an
acceptable affirmative action program within 30 days, the case file
shall be processed for enforcement proceedings pursuant to Sec. 60-1.26
of this chapter. If an administrative complaint is filed, the
contractor shall have 20 days to request a hearing. If a request for
hearing has not been received within 20 days from the filing of the
administrative complaint, the matter shall proceed in accordance with
part 60-30 of this chapter.
(3) During the ``show cause'' period of 30 days, every effort will
be made through conciliation, mediation, and persuasion to resolve the
deficiencies which led to the determination of nonresponsibility. If
satisfactory adjustments designed to bring the contractor into
compliance are not concluded, the case shall be processed for
enforcement proceedings pursuant to Sec. 60-1.26 of this chapter.
(d) During the ``show cause'' period and formal proceedings, each
contracting agency must continue to determine the contractor's
responsibility in considering whether or not to award a new or
additional contract.
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