1B Pre-Desk Audit Actions

This subsection covers information that COs gather through their initial contact with the contractor, including contact information for the contractor and the contractor’s representative, and any information that may preclude the evaluation (e.g., establishment is closed, the establishment is part of an approved FAAP agreement, or OFCCP has completed a review of the establishment in the past 24 months). If the contractor contests OFCCP’s jurisdiction or provides any information that may preclude the evaluation, the CO would follow the process outlined in subsection 1B04 below.

a. Contractor Information. Before issuing a Scheduling Letter and Itemized Listing, COs must verify the following information:

• The name of the highest-ranking management official at the establishment;
• The legal name of the company;
• The name and email of the person responsible for the preparation and implementation of the contractor’s AAPs; and
• The correct mailing address for the establishment.

If an establishment is part of a larger entity, the CO must obtain the name of the corporate chief executive officer (CEO), the name of the corporate person responsible for EEO and affirmative action matters and the correct corporate mailing address. COs enter this basic identifying information in the Contractor Information section of the SCER.

b. Representation. A contractor’s statement about representation can come during the initial contact or at some later point. When a contractor indicates that it is or will be represented by counsel or a consultant company, a CO must ask the contractor to provide written confirmation of the representation, including:

• The contact information for the representative that includes the representative’s name, address, email, and phone number; and
• The scope of the representative’s authority, including whether the authority granted to the representative extends to negotiating a settlement, if necessary, on behalf of the contractor.

A CO must also ask the contractor to clarify in writing as a part of the representation confirmation whether:

• All contacts, including routine ones to make appointments or to clarify data or other information, should be made through the representative; and
• All correspondence should be provided only to the representative or if a copy is to be provided to the contractor.

The CO obtains the same written confirmation if a person indicates to the CO or another representative of OFCCP that he or she represents the contractor. After receiving written confirmation of representation, a CO must handle contacts and correspondence according to its terms for the duration of the evaluation. The handling of contacts and correspondence will change if the contractor specifies a different period or subsequently alters its instructions. Alterations of representation instructions must be in writing.

COs provide the contractor’s highest-ranking management officials copies of all substantive documents that they mail. For these purposes, we define substantive documents as documents that this Manual requires a CO to mail. This would include, for example, any Predetermination Notice (PDN), Notice of Violation (NOV), Show Cause Notice (SCN), and CA.

COs must prepare and maintain a Case Chronology Log for each compliance evaluation. This log is an integral part of the case file and is an invaluable tool in tracking the progress and the status of the case.13 It is, therefore, important that COs keep the Case Chronology Log current. A Case Chronology Log includes:

• Event summaries that begin with the initial contact with the contractor and continue through to the approval of case closing documents.
• Documentation of all telephone conversations, emails, correspondence and meetings associated with the evaluation, indicating the date, nature of the contact, person contacted, a summary of discussion or actions taken, and the CO’s name.

Records of telephone calls in the log should include the time of the call. All meetings must include the date, location, and names of the people in attendance. In addition, COs must record in the log all requests for data and records, and the dates the CO received these items. COs must record all events and actions as they occur.

Many COs print a hardcopy of the Case Chronology Log to facilitate their ability to write in the day-to-day events and activities as they occur. This practice is acceptable as long as the final Case Chronology Log included in the case file is typed, legible and maintained electronically.

COs must create and maintain a case file for each scheduled compliance evaluation. The case file generally consists of various folders. To set up a case file, COs must create individual folders using the below headings.14

• Folder 1: Standard Compliance Evaluation Report (SCER) and Data Pertaining to SCER Findings
• Folder 2: Case Chronology Log, Correspondence and Meeting Notes
• Folder 3: Collective Bargaining and Other Agreements, and Miscellaneous Items
• Folder 4: Solicitor of Labor (SOL) Opinions, Joint Review Committee (JRC)15 Memoranda and Post-SCER Update
• Folder 5: Progress Reports
• Folder 6: Historical Review Results
• Folder 7: AAP and Itemized Listing Data

COs must add information and documents to the appropriate folder throughout the compliance evaluation. If enforcement becomes necessary, COs provide the compliance evaluation case file to the Solicitor’s Office for further action. It is critically important that all information obtained, observed or reported be part of the case file and remain there through case closure.

Once again, maintaining these files is crucial. This maintenance includes labeling the folder and any additional folders or subfolders needed (e.g., Folder 1A, 1B). Labeling is especially useful when the material in a folder is voluminous. COs must arrange the documents in each folder by date, with the most recent document on top unless directed otherwise. COs are required to attach certain documents in each folder to the left or right side of the folder, as indicated below. When there are 10 or more separate documents in a folder, the CO must prepare an index and place it in the front of that folder.

A complete and thorough case file is critically important, especially if enforcement becomes necessary. Therefore, COs must be sure that the case file contains all documents obtained or generated during the compliance evaluation, not just the material that supports the conclusions reached. For example, the file should include both evidence that supports the CO’s violation findings, as well as evidence that supports the contractor’s rebuttal. The case file must contain all contractor records and unaltered copies of all email correspondences in paper or electronic format. Drafts of OFCCP memoranda are not included in the case file. COs retain only final versions of agency memoranda.

If a CO is submitting a case for enforcement, a Transmittal Memorandum, as discussed in Chapter 8 of this Manual on the resolution of noncompliance, must accompany the case file. A complete copy of at least one contract or subcontract establishing coverage during the entire period at issue is also required, continuing to the present, if available. Additionally, the enforcement submission must include copies of all relevant analyses, properly labeled, in electronic format. Remember to keep a copy of all files submitted for enforcement in the appropriate field office. Below is a list of the folders and their content.16

Folder 1: Standard Compliance Evaluation Report (SCER) and Data Pertaining to SCER Findings. This folder contains the SCER and data pertaining to SCER findings, such as:

• CO notes, worksheets and analyses, including any regression analyses;
• Witness statements that are appropriately labeled;
• Contractor records; and
• Other information and records pertinent to the issues investigated.

COs should organize the material according to the relevant SCER issue, and tabs and labels them accordingly. Documents must cross-reference other folders, as appropriate. For example, if a SCER document in Folder 1 also involves or is relevant to a union contract matter, the document in Folder 1 will refer to the union contract placed in Folder 3. COs are required to attach certain documents to the left side of this folder. The CMS Form CC-100A should be placed on top and the following items should be placed underneath:

• Any contract coverage information provided by DPO or copies of contracts;
• CMS forms associated with the review;
• EEO-1 reports;
• Contractor extension requests for the AAPs and OFCCP responses, including extensions of time frames in a consent decree; and
• Preaward Clearance Request letter and other related materials.

Folder 2: Case Chronology Log, Correspondence and Meeting Notes. This folder contains all emails and other correspondence, both internal and external, as well as meeting notes associated with the review. File these items chronologically. COs must preserve all communications related to the compliance evaluation or complaint investigation in this folder, including data and record submissions, information gathering and interviews, and any material resulting from contacts with third parties such as other government agencies or local interest groups.

For ease of reference, the folder must have a tab for the closure document. One closure document is a CA. This document is the written agreement entered into by the contractor and OFCCP that identifies the violations found by the agency and what actions the contractor will undertake to resolve them or prevent the violations from recurring. In the absence of violations, a closure letter is the closure document. Place a copy of the closure document in Folder 6, Historical Review Results.

COs must attach a typed copy of the Case Chronology Log to the left side of this folder.

Folder 3: Collective Bargaining and Other Agreements, and Miscellaneous Items. This folder contains a copy of any collective bargaining agreements, fringe benefits and leave policy booklets, employee handbooks, apprenticeship or training agreements and any other similar contractor documents relevant to the establishment reviewed. COs place into this folder relevant documents that do not fit the description of documents contained in other folders.

Folder 4: SOL Opinions, JRC Memoranda and Post-SCER Update. This folder contains Solicitor’s Opinions and JRC memoranda associated with the review. It also contains any material, other than progress reports, generated after a CO submits the review report such as transmittal memoranda and additional conciliation efforts. For example, a record of any later conciliation efforts by the district office, regional office and national office, as appropriate, along with the results of those efforts, would be filed in this folder.

Folder 5: Progress Reports. This folder contains progress reports the contractor submitted under a CA, along with OFCCP’s evaluation of those reports. COs enter the results of these evaluations on the “Summary of Progress Reports” form. After entering the last report, COs place a copy of the referenced summary in Folder 6, Historical Review Results. COs also log all progress reports in the Case Chronology Log and include consent decrees or other court orders.

Folder 6: Historical Review Results. This folder contains a copy of closure letters and documents, including any previous CAs generated by any past reviews of this establishment, as well as a copy of the closure letter and document for the current review. If a contractor must file progress reports under a current CA, when the CO evaluates the last report, the CO will add a copy of the “Summary of Progress Reports” to this folder on top of the CA for the current review.

It is important that the field office retains the historical folder consistent with OFCCP’s records management schedule. If OFCCP schedules another review of this establishment before this case file is retired and archived, the field office will pull the historical folder from the old case file and move it to the new one.

Folder 7: AAP and Itemized Listing Data. This folder contains the contractor’s AAPs and Itemized Listing data evaluated in this review. Place this material at the end only because it is often the most voluminous.

OFCCP uses the Scheduling Letter and Itemized Listing to schedule a compliance evaluation and request AAPs and Itemized Listing data from the contractor. Copies of these two items are Figures F-3 in the Manual. The Scheduling Letter and Itemized Listing are reauthorized for the agency’s use every three years by the Office of Management and Budget (OMB) if not earlier, should the agency seek it. Therefore, COs must review the most recently authorized Scheduling Letter and Itemized Listing to ensure that they are familiar with the documents and information requested from the contractor.

COs will use a separate version of the Scheduling Letter and Itemized Listing for a focused review. For example, the Scheduling Letter and Itemized Listing for Section 503 focused reviews is in Figure F-4.

The most recently OMB-approved Scheduling Letter and Itemized Listing is sent by certified mail, return receipt requested, to the highest ranking official at the contractor’s establishment or functional unit, with a copy to the CEO at the contractor’s corporate headquarters unless the establishment and corporate headquarters are the same. The appropriate field office official signs the Scheduling Letter. The letter must include the name and telephone number of the CO who will receive the AAPs, and Itemized Listing data or the CO’s appropriate supervisor.

COs must contact the contractor within 15 calendar days after sending the Scheduling Letter and Itemized Listing to ensure that the contractor or the contractor’s representative, or both, fully understand the requests contained in the letter. If the contractor has questions, COs will provide technical assistance to clarify the contractor’s obligations and the compliance evaluation process. The CO should establish himself or herself as the primary point of contact for the compliance evaluation, provide an overview of what to expect during the evaluation, and explain the allowable one-time 30-day extension for submission of Itemized Listing18 information as well as the SCN process for failure to meet deadlines for submitting the AAPs and Itemized Listing information.

The contractor may challenge OFCCP’s authority to schedule it for a compliance evaluation. For instance, the contractor could assert that the establishment is closed, the establishment is part of an approved FAAP agreement, or it does not have a large enough federal contract or the requisite number of employees to trigger OFCCP’s AAP requirements. The contractor might also inform the CO that it has been less than 24 months since it received a closure letter from OFCCP for a prior compliance evaluation or since the end of the monitoring period for a CA or consent decree it entered with OFCCP to remedy violations uncovered during a prior evaluation.

If the contractor challenges the agency’s jurisdiction for any reason, the CO must elevate the issue to the attention of DPO, in coordination with his or her supervisor and regional office. DPO will use a number of resources, including the System for Award Management (SAM),19 to verify whether OFCCP has jurisdiction over the scheduled contractor. If jurisdiction is then established, yet the contractor continues to dispute OFCCP’s jurisdiction, the CO will recommend issuance of an SCN. Chapter 8, Section D explains the use of SCNs. If jurisdiction is not established, then the CO would administratively close the compliance evaluation.20

SAM includes information on whether a contractor has declared that it maintains AAPs for all of its establishments. The information is under Representations and Certifications; Affirmative Action Compliance (Federal Acquisition Regulation 52.222-25). COs may find it beneficial to check SAM to determine whether the contractor made this declaration in SAM before making the 15-day call.

If a region schedules a compliance evaluation of an establishment that is covered by a functional or business unit, the regional office and CO must contact the FAAP branch to verify if the establishment is covered within an approved functional or business unit. The FAAP branch will advise the regional office and CO whether to administratively close the evaluation.

Simultaneous with the mailing of the Scheduling Letter, COs will seek information regarding the employment policies and practices of the contractor being scheduled from the Equal Employment Opportunity Commission (EEOC), Veterans Employment and Training Service (VETS), and other EEO and labor law enforcement agencies. Such information provides a better understanding of the contractor’s workforce and operations, and may indicate potential problem areas.

a. EEOC and State and Local Fair Employment Practices (FEP) Agencies. The CO sends an inquiry letter simultaneous with the mailing of the Scheduling Letter.21 The inquiry letter goes to the appropriate district office of the EEOC, and to the appropriate state and local FEP agencies. It requests information on discrimination complaints filed against the contractor and any other information that may be pertinent to assessing the contractor’s EEO posture. After 15 calendar days, COs must follow up by telephone with any agency that failed to respond or from which additional information is needed.

OFCCP has a Memorandum of Understanding (MOU) with EEOC that includes provisions about information sharing, complaint referrals, coordination and consultation. COs are urged to become familiar with the provisions of this MOU.

b. Veterans Employment and Training Service, Employment Service Delivery System and DOL Enforcement Agencies. COs must contact the VETS regional office and local employment service delivery systems (ESDS) in writing to request any information that could be pertinent to the pending review, including information regarding the contractor’s compliance with the mandatory job listing requirements of the equal opportunity clause at 41 CFR 60-300.5(a), and complaints.22 When conducting compliance evaluations and complaint investigations, COs must query the VETS-4212 database online to verify that a federal contractor completed the annual reporting requirements for the appropriate reporting year. COs must then record the results of these inquiries in Part B.I of the SCER. Moreover, the information in this database, in combination with data provided under 41 CFR 60-300.44(k), may be useful when analyzing an employer’s recruitment and hiring practices. OFCCP provides a periodic report to VETS of contractors who have not filed the VETS-4212.23

Additionally, COs should check the DOL Enforcement Database at https://enforcedata.dol.gov/ for closed complaints and compliance evaluations of the contractor’s establishment, and may reach out to other DOL agencies such as the Wage and Hour Division (WHD) or the Occupational Safety and Health Administration (OSHA) for information on the compliance history of the establishment. For example, the WHD may have filed Family and Medical Leave Act (FMLA) violations related to the contractor that is the subject of a compliance evaluation.

COs must carefully examine all information regarding EEO complaints against a contractor that they receive from federal, state, and local agencies in response to a letter of inquiry. COs enter basic information about these complaints in Part A of the SCER, including:

• The agency with which the complaint was filed;
• The jurisdictional or legal basis (e.g., race, sex) of the complaint;
• The current status of the complaint; and
• The area of the contractor’s workforce involved in the complaint.

COs will note any patterns in the types of complaints filed and any discrimination findings made on them. For example, there may be a clustering of complaints filed by employees in certain job areas, or by applicants or employees from a particular race, religion, ethnic group or sex; by covered veterans; or by individuals with disabilities. As the review progresses, COs must cross-reference complaints to any potential problem areas they identify. There may be, for example, indications of a lack of good faith efforts, statistical indicators of discrimination, or concentration or underrepresentation in areas where complaints were filed.

When appropriate, COs will contact the appropriate EEOC office or state or local FEP agency to arrange the review of relevant discrimination complaint files as part of the compliance evaluation. This review can be particularly useful when, based on the result of the desk audit, a CO identifies potential systemic problems in complaint areas.

Upon receipt of the AAPs and Itemized Listing data, COs must compare any information a contractor provides concerning current or past complaints to the information received from other agencies. COs will note discrepancies and information not provided by the contractor for possible further investigation during the review, and will seek an explanation and additional information from the contractor.

If, during the conduct of a compliance evaluation, a CO finds that the contractor is involved in litigation or is under a court order on EEO matters, then the CO must identify:

• The EEO issues involved;
• The court and the parties; and
• The case name and number.

The CO must bring the matter to the attention of his or her supervisor. The field office, in consultation with the regional Solicitor of Labor (RSOL), will determine whether the litigation or court order imposes limitations on the compliance evaluation.

Each field office must maintain resource files on the communities within its geographic area. For each community, these files should identify local organizations that represent or provide services to protected groups. These entities would include groups and organizations representing or servicing women, racial and ethnic minorities, veterans, individuals with disabilities, and individuals who identify as lesbian, gay, bisexual, or transgender. Some COs may not be knowledgeable about the local organizations in the area. In these instances, the COs must review the resource files and introduce themselves to representatives from the various organizations. The Communications Team in the national office and Regional Office Outreach Coordinators (ROCs) may also be useful resources.

If a contractor is located near an Indian and Native American Reservation with a Tribal Employment Rights Organization (TERO) or other employment organization on the reservation, COs must contact these organizations. Chapter 2 of this Manual discusses the importance of linkages and how a CO can establish relationships with local organizations representing covered group members.

COs must determine whether another OFCCP office recently reviewed or is reviewing the same contractor when scheduling contractor establishments for compliance evaluations. If another OFCCP office is currently reviewing a contractor proposed for an evaluation, the CO or the supervisor must contact the supervisor of the other OFCCP office to discuss what issues, if any, are present in their ongoing case. This is particularly important for detecting company-wide practices that result in discrimination. An example of this issue may be a test that is not validated and has an adverse impact on specific groups.

COs may also examine closed case files or OFIS to identify issues relevant to the current evaluation. COs should also note the terms of any CA or consent decree, including back pay, hires and other remedial measures contained in the CA or consent decree. In addition, COs must determine whether a contractor has been subject to an OFCCP complaint investigation and, if so, review the complaint file for any violations or problems identified.24 Any violations found in these past compliance actions must be recorded in Part A of the SCER. While the existence of a past problem is not considered evidence of the existence of present problems, COs must be alert to any indications that past problems remain unresolved, have recurred or that similar problems have arisen.