41 C.F.R. § 60-2.2

Agency action

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(a) Any contractor required by § 60-2.1 to develop and maintain a written affirmative action program for each of its establishments that has not complied with that section is not in full compliance with Executive Order 11246, as amended. When a contractor is required to submit its affirmative action program to OFCCP (e.g., for a compliance evaluation), the affirmative action program will be deemed to have been accepted by the Government at the time OFCCP notifies the contractor of completion of the compliance evaluation or other action, unless within 45 days thereafter the Deputy Assistant Secretary has disapproved such program.

(b) If, in determining such contractor's responsibility for an award of a contract it comes to the contracting officer's attention, through sources within his/her agency or through the OFCCP or other Government agencies, that the contractor does not have an affirmative action program at each of its establishments, or has substantially deviated from such an approved affirmative action program, or has failed to develop or implement an affirmative action program which complies with the regulations in this chapter, the contracting officer must declare the contractor/bidder nonresponsible and so notify the contractor and the Deputy Assistant Secretary, unless the contracting officer otherwise affirmatively determines that the contractor is able to comply with the equal employment obligations. Any contractor/bidder which has been declared nonresponsible in accordance with the provisions of this section may request the Deputy Assistant Secretary to determine that the responsibility of the contractor/bidder raises substantial issues of law or fact to the extent that a hearing is required. Such request must set forth the basis upon which the contractor/bidder seeks such a determination. If the Director, in his/her sole discretion, determines that substantial issues of law or fact exist, an administrative or judicial proceeding may be commenced in accordance with the regulations contained in § 60-1.26; or the Deputy Assistant Secretary may require the investigation or compliance evaluation be developed further or additional conciliation be conducted: Provided, That during any pre-award conferences, every effort will be made through the processes of conciliation, mediation, and persuasion to develop an acceptable affirmative action program meeting the standards and guidelines set forth in this part so that, in the performance of the contract, the contractor is able to meet its equal employment obligations in accordance with the equal opportunity clause and applicable rules, regulations, and orders: Provided further, That a contractor/bidder may not be declared nonresponsible more than twice due to past noncompliance with the equal opportunity clause at a particular establishment or facility without receiving prior notice and an opportunity for a hearing.

(c)(1) Immediately upon finding that a contractor has no affirmative action program, or has deviated substantially from an approved affirmative action program, or has failed to develop or implement an affirmative action program which complies with the requirements of the regulations in this chapter, that fact shall be recorded in the investigation file. Except as provided in § 60-1.26(b)(1), whenever administrative enforcement is contemplated, the notice to the contractor shall be issued giving the contractor 30 days to show cause why enforcement proceedings under section 209(a) of Executive Order 11246, as amended, should not be instituted. The notice to show cause should contain:

(i) An itemization of the sections of the Executive Order and of the regulations with which the contractor has been found in apparent violation, and a summary of the conditions, practices, facts, or circumstances which give rise to each apparent violation;

(ii) The corrective actions necessary to achieve compliance or, as may be appropriate, the concepts and principles of an acceptable remedy and/or the corrective action results anticipated;

(iii) A request for a written response to the findings, including commitments to corrective action or the presentation of opposing facts and evidence; and

(iv) A suggested date for the conciliation conference.

(2) If the contractor fails to show good cause for its failure or fails to remedy that failure by developing and implementing an acceptable affirmative action program within 30 days, the case file shall be processed for enforcement proceedings pursuant to § 60-1.26 of this chapter. If an administrative complaint is filed, the contractor shall have 20 days to request a hearing. If a request for hearing has not been received within 20 days from the filing of the administrative complaint, the matter shall proceed in accordance with part 60-30 of this chapter.

(3) During the “show cause” period of 30 days, every effort will be made through conciliation, mediation, and persuasion to resolve the deficiencies which led to the determination of nonresponsibility. If satisfactory adjustments designed to bring the contractor into compliance are not concluded, the case shall be processed for enforcement proceedings pursuant to § 60-1.26 of this chapter.

(d) During the “show cause” period and formal proceedings, each contracting agency must continue to determine the contractor's responsibility in considering whether or not to award a new or additional contract.

[65 FR 68042, Nov. 13, 2000, as amended at 85 FR 71572, Nov. 10, 2020]

Notes of Decisions

Cited in 11 cases, 1972–1993 · leading case: UNITED STATES of Am., Plaintiff-Appellee, v. MISSISSIPPI POWER & LIGHT Co., Defendant-Appellant, 553 F.2d 480 (5th Cir. 1977).

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UNITED STATES of Am., Plaintiff-Appellee, v. MISSISSIPPI POWER & LIGHT Co., Defendant-Appellant, 553 F.2d 480 (5th Cir. 1977). · cites it 5× “4(d); 6 (8) that the Government has violated its own'rules and regulations, 41 C.F.R. § 60-2.2 (c), 7 by failing to give MP&L a 30-day show cause notice prior to instituting this action, and therefore is estopped from pursuing this case; and (9) that the district court erred in…”

Crown Zellerbach Corp. v. Marshall, 441 F. Supp. 1110 (E.D. La. 1977). · cites it 7× “5 Crown requested, pursuant to 41 CFR 60-2.2(b), that the Director of OFCCP determine that there are substantial issues of law and fact “concerning the eligibility, qualifications and rights, constructive seniority, and other remedies,” and that the claims and proposed remedies…”

Pan Am. World Airways, Inc. v. Marshall, 439 F. Supp. 487 (S.D.N.Y. 1977). · cites it 6× “As a result, Pan American was found to be “non-responsible” under 41 C.F.R. § 60-2.2 (b) 6 *491 and so subject to “passover” on two government contracts.”

United States v. Duquesne Light Co., 423 F. Supp. 507 (W.D. Pa. 1976). · cites it 3× “” Under the authority granted him by § 209(b), the Secretary has issued 41 C.F.R. § 60-2.2 , providing that: “Immediately upon finding that a contractor has no affirmative action program or has deviated substantially from an approved affirmative action program or that his…”

ST. REGIS PAPER Co., a Corp., Plaintiff-Appellant, v. Ray MARSHALL, Sec'y of Labor, Et Al., Defendants-Appellees, 591 F.2d 612 (10th Cir. 1979). “Plaintiff also sent a telegram to Lawrence Lorber, the director of the OFCCP pursuant to 41 C.F.R. § 60-2.2 (b), seeking a determination that substantial issues of law or fact existed sufficient to require that plaintiff be afforded a hearing prior to determination of…”

Phyllis S. Stones v. Los Angeles Cmty. Coll. Dist., Leslie Koltai, & Mary E. Lee, 796 F.2d 270 (9th Cir. 1986). “Stones argues that the District’s affirmative action program departs from the specifications laid out in 41 C.”

Legal Aid Soc'y of Alameda Cnty. v. Brennan, 381 F. Supp. 125 (N.D. Cal. 1974). · cites it 2× “41 C.F.R. § 60-2.2 (c) (1973) requires the compliance agency to initiate enforcement proceedings immediately when a contractor’s program is found insufficient or nonexistent: (c) Immediately upon finding that a contractor has no affirmative action program or has deviated…”

Isiah Hadnott v. Melvin R. Laird, Individually & in His Capacity as Sec'y of Def. of the United States, 463 F.2d 304 (D.C. Cir. 1972). “41 C.F.R. § 60-2.2 (c) (1) reads as follows : (1) If the contractor fails to show good cause for his failure or fails to remedy that failure by developing and implementing an acceptable affirmative action program within 30 days, the compliance agency, upon the approval of the…”

Legal Aid Soc'y v. Brennan, 608 F.2d 1319 (9th Cir. 1979). · cites it 3× “41 C.F.R. § 60-2.2 . B. Appellees’ complaint contained two central allegations.”

Illinois Tool Works, Inc. v. Marshall, 601 F.2d 943 (7th Cir. 1979). · cites it 6× “Under 41 C.F.R. § 60-2.2 (b) and ASPR § 12-801(c), a contractor may be debarred from government contracts before a hearing merely because one government agency has issued a show cause letter, or because that agency has made a prima facie determination that the contractor has not…”

Trinity Indus., Inc. v. Reich, 901 F. Supp. 282 (E.D. Ark. 1993). “41 C.F.R. § 60-2.2 (c)(2). The regulations implementing VEVRA and § 503 provide that OFCCP may initiate enforcement proceedings if the contractor does not comply with the requirements of the respective Acts, which include the development of an acceptable AAP.”

— 41 C.F.R. § 60-2.2(b) — 2 cases

Crown Zellerbach Corp. v. Marshall, 441 F. Supp. 1110 (E.D. La. 1977). “5 Crown requested, pursuant to 41 CFR 60-2.2(b), that the Director of OFCCP determine that there are substantial issues of law and fact “concerning the eligibility, qualifications and rights, constructive seniority, and other remedies,” and that the claims and proposed remedies…”

Pan Am. World Airways, Inc. v. Marshall, 439 F. Supp. 487 (S.D.N.Y. 1977). “As a result, Pan American was found to be “non-responsible” under 41 C.F.R. § 60-2.2 (b) 6 *491 and so subject to “passover” on two government contracts.”

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