forms of discrimination. This endeavor should proceed from a currently proposed project under which written, legally acceptable standards and principles of proving and remedying systemic discrimination are culled from applicable EEO case law to serve as a basis for standardized compliance review and investigative procedures, conciliation processes, formal hearings, training, rulings and interpretations, subsequent amendments to the rules and regulations, and technical assistance to contractors. OFCCP has established six enforcement processes. They include routine compliance reviews, nonresponsibility determinations, administrative hearings, preaward compliance reviews, complaint investigations, and referrals to EEOC and the Department of Justice. Agencies are required to select contractors for routine compliance reviews on the basis of criteria designed to insure an optimum degree of efficiency in the use of enforcement resources. The compliance review is divided into several steps which are to be concluded within 60 days. They include a desk audit of the contractor's affirmative action program, an onsite review, an offsite analysis, and an exit interview. Where there are violations which are not amenable to conciliation during the exit interview, the process is extended to include the issuance of a notice which affords the contractor 30 days to show cause why sanction procedures should not be instituted. During the show-cause period the contractor may be determined "nonresponsible" and, therefore, ineligible for any pending contract. If the contractor fails to achieve compliance through conciliation by the end of that period, the case is referred for sanction procedures which include an opportunity for a formal hearing before an administrative law judge. The recommendation of the administrative law judge is acted upon by the head of the compliance agency and the Di rector, OFCCP. Preaward compliance reviews are identical to routine compliance reviews except they must be conducted within 30 days of the award of a contract (for supplies and services) in the amount of $1 million or more and, because of the limited time period for completion, they usually do not accommodate the desk audit and offsite analysis steps. The complaint investigation process is also essentially the same as the routine compliance review activity except that it is triggered by an allegation of discrimination or other violation. Complaints which allege violations of an individual or nonsystemic nature are referred to EEOC for investigation under title VII. Cases are normally referred to Justice when they involve contractors against whom the usual contract sanctions would be impractical. The major defects in OFCCP's enforcement procedures are outlined as follows: a. OFCCP has not developed a management informa tion system which would permit it to identify selection criteria. b. Compliance agencies tend to conduct compliance C. reviews of the same contractor establishments on a year-to-year basis. If OFCCP is to insure that each compliance review focuses on systemic discrimination as well as affirmative action goals and timetables the requirement that such reviews be accomplished within 60 days must be revised. d. The nonresponsibility determination process has given rise to allegations of arbitrary decisions and other abuses on the part of agency compliance e. officials. OFCCP has responded by invoking appeal procedures which vest complete discretion in the Director, OFCCP and provide her/him with no standards to follow in deciding appeals. The continued use of Administrative Law Judges under the current system is impractical if OFCCP is to develop its full enforcement potential. In addition, the hearing regulations are so burdensome on the Government as to protract the hearing process. f. Because procuring officials are unable to give substantially more than 30 days notice prior to the award, the preaward compliance review is of necessity an abbreviated review process. The 30-day time period does not permit a focus on systemic discrimination and related complex issues. g. Complaints referred to EEOC have not received h. OFCCP has not formalized suitable criteria for the referral of systemic enforcement cases to EEOC and the Department of Justice. Recommendations: a. b. c. d. e. OFCCP should develop a management information To assist in assuring that each compliance re- With the improved administration of the affirma- The appeal from a nonresponsibility determination |