Given the recent wave of OFCCP courtesy letters sent to federal contractors this month, we thought a short review of the process in moving from courtesy letter to scheduling letter would be of interest to readers of this blog. The OFCCP utilizes the Federal Contractor Selection System (FCSS) to identify federal contractor and subcontractor establishments for supply and service compliance evaluations. The FCSS is programmed to create a computer-generated list of selected establishments in an administratively neutral manner employing various sources (e.g., EEO-1 reports, government contracting database, and Dun & Bradstreet data). This list is maintained in a computer system and distributed by the OFCCP National Office to each respective Regional/District office as appropriate. The Regional/District offices are required to schedule the federal contractor establishment identified on the FCSS list in sequential order or must record the reason(s) for not scheduling in that order. Notice of an official compliance review will be in the form of an Office of Management and Budget (OMB) approved scheduling letter sent via certified mail to the selected establishment. Receipt of this letter will initiate a thirty day submission period for the federal contractor or subcontractor to provide the OFCCP with all requested items described in the letter. At the conclusion of the compliance evaluation, the establishment can not be scheduled for another review for 24 months from the date of closure.
DCI Consulting Group (DCI) is aware of a wide-spread concern within the contractor community in regard to recent contractor audit selections. This concern is due to an increase in the number of courtesy letters received or compliance reviews initiated within a corporation in a limited period of time. The contractor community is wondering what changed with the administratively neutral selection process that has created this increase in activity. Some have gone so far to question the process with OFCCP personnel. The response provided by OFCCP personnel is limited to verbiage similar to that found in the frequently asked questions section of the website: http://www.dol.gov/ofccp/regs/compliance/faqs/fcssfaqs.htm. If relevant context warrants concern about the audit selection process, it may be reasonable to approach OFCCP on the matter. However, OFCCP typically takes challenges to the FCSS very seriously, and will likely attempt to justify the selection process. The contractor would need to decide whether the justification from National Office is satisfactory or not, and if not, the next step would be to withhold submission of desk audit materials, receive a show cause letter, and wait for the OFCCP to take the case to the Office of the Solicitor of Labor (SOL). Auditing a location that no longer exists, has an open audit or one that has an audit that closed within the two year grace period would be examples in which DCI would encourage communicating questions or concerns with the OFCCP.
As the above scenario illustrates, maintaining open lines of communication with OFCCP is very important, particularly in situations where the audit selection process may not be intuitive. DCI also encourages a number of strategies to ensure that the beginning of the audit process moves smoothly, including taking a proactive and timely approach to annually updating affirmative action plans, as required in the federal regulations. By staying current on compliance initiatives, the courtesy letters and compliance evaluations will be more manageable for all parties involved in the process. This allows for additional courtesy time to be spent communicating awareness to key personnel, ensuring data integrity of the plan, and gathering support documentation. Additional actions can be taken to fully prepare for a compliance evaluation, as referenced in the following blog.
by Yevonessa Hall and Keli Wilson, DCI Consulting Group