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OFCCP Publishes Guidance On The Federal Contractor Selection System

Published by on October 24, 2011

Beginning in January 2011, OFCCP implemented its new audit strategy that moved the philosophy of compliance evaluations from management to enforcement.   More on the latest developments in this area after the break. Director Patricia Shiu initiated a new directive labeled Active Case Enforcement (“ACE”), discontinuing previous compliance Active Case Management (“ACM”) evaluation strategy.  The change […]

Beginning in January 2011, OFCCP implemented its new audit strategy that moved the philosophy of compliance evaluations from management to enforcement.   More on the latest developments in this area after the break.

Director Patricia Shiu initiated a new directive labeled Active Case Enforcement (“ACE”), discontinuing previous compliance Active Case Management (“ACM”) evaluation strategy.  The change increases the compass of compliance evaluations, however, the selection procedure remains the same.   OFCCP will continue to use the Federal Contractor Selection System (“FCSS”) to select establishments for compliance evaluation.

The OFCCP has listed a Questions and Answers link on its website regarding the FCSS that addresses several basic questions regarding the selection process.   The following information is provided on the OFCCP website.

The selection process under the administratively neutral section system, FCSS, may include: use of EEO-1 reports; development of threshold requirements; and a mathematical model, based on external research, which ranks Federal contractor establishments based on an indicator of potential workplace discrimination.  Evaluations are also scheduled on factors such as: contract award notices, directed reviews; conciliation agreement monitoring; individual or class complaints; or as part of the agency’s Corporate Management Compliance Evaluation (CMCE) or Functional Affirmative Action Plan (“FAAP”) initiatives.

Once identified by the FCSS, establishments selected appear on a computer-generated list developed and maintained by the OFCCP National Office with contract establishments that each Regional/District Office is to schedule during the current scheduling cycle.  The respective Regional/District Office accesses the OFCCP National Office computer system and establishment names are released one at a time in the order determined by the National Office.  To ensure consistent and fair application of OFCCP’s neutral selection process, an office only has sequential access to the list and cannot schedule an establishment until taking action on prior candidates.  An office must note in the computer system whether it will schedule the establishment for evaluation and, if so, must enter the date of the selection.  Or, if an office rejects the establishment for evaluation, it must identify the reason for the rejection.

OFCCP’s scheduling cycle is currently based on its Fiscal Year of October 1 through September 30.  Each FCSS Scheduling cycle generally includes two scheduling list releases: (1) at the beginning of OFCCP Fiscal Year; and (2) late second quarter/early third quarter of the Fiscal Year (depending on regional office workload).

Beginning in Fiscal Year 2010, there is no limit on the number of FCSS compliance evaluations that OFCCP may schedule or conduct per contractor during a fiscal year.  Furthermore, the 25 establishment cap on FCSS compliance evaluation was eliminated as of Fiscal Year 2010.

Notably, even if a contractor establishment is not on the FCSS list, it can be scheduled for a compliance evaluation.  The list of establishments provided with Corporate Scheduling Announcement Letter is not all-inclusive.  Company establishments that are not clearly associated with the parent organization through EEO-1 Reports, such as those acquired through recent mergers may be scheduled even though on the FCSS list. 

In addition, when OFCCP receives notification that a contractor establishment is being considered for a Federal contract or that the contractor establishment has been awarded a Federal contract of $10 million or more, a compliance evaluation may be scheduled if the contractor establishment in question has not had a compliance evaluation, other than a compliance check, within 24 months prior to the date of the notification. This is considered a pre-award compliance evaluation.

Also, OFCCP also may schedule an evaluation when OFCCP receives a credible report of an alleged violation of a law or regulation enforced by OFCCP, including an individual complaint or a class action complaint filed with the OFCCP, EEOC, or State Fair Employment Practice agencies. 

A contractor establishment that has undergone a compliance evaluation during the 24 months prior to the development of the FCSS list that is still subject to reporting obligations from prior compliance evaluation should not be scheduled.  If scheduled, a representative should contact the local OFCCP office issuing the scheduling letter.

OFCCP may, however, schedule a follow-up compliance evaluation if there is an indication that the establishment is not complying with reporting requirements or agreed upon actions resulting from an active Conciliation Agreement, OFCCP receives individual or class complaint; or OFCCP receives credible report of alleged violation of law of regulation it enforces.

The full text of OFCCP’s Question & Answers can be found here.

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