The predetermination notice is coming back.
If you have been the unfortunate recipient of a Notice of Violation from the Office of Federal Contract Compliance Programs in the past few years, you may have noticed something -- that you didn't receive a predetermination notice first.
Once a standard practice within the Agency, the predetermination notice seemed to have disappeared. The OFCCP used to issue a predetermination notice if the agency believed a violation had occurred, and it provided the contractor with a chance to submit a rebuttal before the Agency issued a Notice of Violation.
But the predetermination notice is coming back. On February 27, OFCCP Director Ondray Harris issued a new Directive ordering the OFCCP to issue predetermination notices “at the conclusion of compliance evaluations where contractors have not provided adequate explanations to proposed discrimination findings.” The OFCCP must provide predetermination notices in the case of both individual and systemic discrimination allegations.
Director Harris notes, “In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV).” As an explanation for reinstituting the predetermination notice as a standard practice, the Directive provides,
As part of OFCCP’s ongoing efforts to achieve consistency across regional and district offices, increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process, OFCCP is instituting a uniform approach to the use of PDNs in compliance evaluations where the agency believes discrimination findings may exist.
Now, Regional offices no longer have discretion and must issue predetermination notices in compliance evaluations involving potential discrimination. The Directive further provides that the Office of the Solicitor must review the predetermination notice before submission to the OFCCP’s national office for review and approval.
This Directive is a welcome change for federal contractors. It provides the potential for increased transparency regarding Agency findings, as well as an additional opportunity for a contractor to convince the OFCCP of the errors in its conclusions. We hope more of these types of changes are on the way for contractors.