This section reviews the actions required after all the parties properly execute a CA. The CO and contractor have continuing obligations and duties, including maintaining all evidence of the violations in the CA, and evaluating and reporting on progress. These and other responsibilities are discussed in the following subsections.
8I00 Retention of Evidence of Violations
COs must retain all evidence regarding violations resolved in a CA in the case file so that it can be readily retrieved and used if it is needed for enforcement proceedings. See FCCM 8H0l(g)(1), Contractor Retention of Data, for the contractor’s obligation to retain records pertinent to violations and to reports submitted.
8I01 Evaluation of Progress Reports
COs have different responsibilities if a required progress report is not received when compared to when a report is received from the contractor.
a. Progress Report Not Received by a CO. If a CO does not receive a required progress report when due, the CO will contact the contractor to determine if it is en route. If it is en route, the CO allows five calendar days for it to arrive. If the CO does not believe it is en route or if it does not arrive within five calendar days, the CO will issue a 15-Day Notice for violation of the CA.419
b. Progress Reports Received by a CO. When a CO receives a progress report, the CO must evaluate the contents of the report and determine whether the report is acceptable or whether the CO needs additional information. The CO normally evaluates a progress report within 15 calendar days of receiving it from the contractor. This evaluation must include an assessment of the report’s completeness, as well as the analysis of the received items. If the CO needs additional information, the CO, in consultation with his or her supervisor, will determine how to best obtain the information (e.g., by phone, mail, an on-site visit or review) and will so notify the contractor. The CO records the results of the evaluation and prepares a letter, using Letter L-39, notifying the contractor of the results.
c. Questions Raised by a Progress Report Evaluation. If the evaluation of a progress report raises questions about the contractor’s implementation of the provisions of a CA, OFCCP may contact the contractor to obtain clarification of the report or schedule an on-site review, or both. If the on-site review is limited to the evaluation of the implementation of a CA issue, the CO will prepare a narrative report describing the results of the investigation and recommending whether the contractor is in violation of the CA. If the contractor is in violation of the CA, the CO may conduct a follow-up compliance evaluation, the scope of which depends on the nature of the violation. A full compliance review would only occur in rare circumstances. For any follow-up compliance evaluation, the CO will prepare a SCER (see Appendix A-1 and A-2, or A-6, as appropriate) with special emphasis on findings and recommendations on the CA implementation question. If the on-site review is proposed as the result of identifying possible new violations resulting from evaluating the implementation of the CA, the CO should contact his or her supervisor and consult with RSOL and the national office, the Division of Program Operations, before engaging in the evaluation.
d. Contractor Maintenance of Records. In response to an inquiry or during an on-site review, the contractor must be prepared to furnish the underlying records or information on which the contractor based the report. If a CO requests copies of this data, the contractor may provide the copies, allow the CO to use its equipment to make the copies, loan the documents to the CO for off-site copying or make other appropriate arrangements with the CO. A failure to maintain or furnish this data is a violation of the CA.420
e. Notification of Results. If, after obtaining and evaluating contractor evidence relevant to fulfillment of CA commitments, a CO concludes that the contractor did not violate the provisions of the CA, the CO will notify the contractor in writing. This Notice can be included in the applicable standard close-out letter. If, however, OFCCP concludes that the contractor violated the CA, see FCCM 8I02, Violation of a Conciliation Agreement.
f. Retention of Progress Reports and Evaluations. The CO will retain progress reports and a copy of his or her corresponding analysis and evaluations in the case file. Copies of correspondence sent to the contractor acknowledging the report must be filed in the case file.
419. See FCCM 8J and Letter L-37 and L-37a.
420. See FCCM 8J02 – Procedure Where Irreparable Injury Exists.
8I02 Violation of a CA
The violation of a CA may occur during the term of the agreement or after the expiration of the agreement.
a. Violation During the Term of a CA. If a CO determines that a contractor violated the provisions of a CA prior to the expiration of the CA, the procedures set out at 41 CFR 60-1.34, 41 CFR 60-300.63 and 41 CFR 60-741.63 require the CO to send the contractor a 15-Day Notice.421The Regional Director, or designee, signs the 15-Day Notice. Prior to issuing a 15-Day Notice, the CO must obtain appropriate approval.
b. Repetition of Violation. If the CO finds that the contractor repeats the same violation after the CA has expired, the CO should discuss the available options with RSOL.
- If the CO finds during the course of a new compliance evaluation (opened after the expiration of the two-year grace period following the expiration of a CA) that the contractor repeated any of the violations addressed in a prior CA, the CO should discuss the option of pursuing an enforcement action rather than a second CA.
- If the CO and RSOL decide to remedy these violations, along with any new violation, through a second CA, the CA will have a minimum term of four years or longer if it is necessary to ensure full implementation of remedy or in unusual circumstances. It will also have at least one compliance evaluation before the CA expires to ensure that the contractor is fulfilling or has fulfilled its terms.
421. See FCCM 8J; however, where irreparable injury is involved, see specific procedures in FCCM 8J02.