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Colorado Federal Contracts

Posted by Tamara

Colorado federal contractors and federal contractors across the U. S. will be happy to learn that audits performed by the Office of Federal Contract Compliance Programs (OFCCP) are limited in scope.

According to the ruling by the administrative law judge in a recent court case, OFCCP cannot extend an investigation beyond the date set in the original audit scheduling letter.

The case, considered a landmark, involved the Dallas plant of Frito-Lay, which is headquartered in Dallas. In July of 2007, the OFCCP requested several hiring documents, including applications and affirmative action plans for the plant for 2006 through June of 2007. According to the auditing agency, these documents showed a pattern of adverse impact on the hiring of women. After this discovery, the OFCCP requested information through December of 2007, plus for the period of July 13, 2005 to December 31, 2005. Frito-Lay complied.

On November 10, 2009, OFCCP requested even more information, this time from January 1, 2008 to October 31, 2009. Frito-Lay’s attorneys argued that the agency was unlawfully extending the scope of the investigation beyond the original scheduling letter date. As a result, Frito-Lay did not provide the documentation.

OFCCP replied that the discovery of the disparate information not only gave them the right to investigate subsequent periods, but it was also their duty to do so.

The judge agreed with Frito-Lay. He also noted that in comments on its regulations, the U.S. Department of Labor provided assurances that audits would not continue without end. Therefore, as dictated by its own agency’s rules, the OFCCP originally launched in July of 2007 could not be extended beyond that date. That means that the OFCCP could not provide notice that they would audit events that have not yet occurred.

As stated by consultant David Cohen of DCI Consulting Group in Washington, D.C., “If the OFCCP drags the case on, it can’t ask for more data.”



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