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.
411. See FCCM 8F.