ARB CASE NO. 99-104
ALJ CASE NO. 98-OFC-8
DATE: March 21, 2002
In the Matter of
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF,
v.
GOYA DE PUERTO RICO, INC.,
DEFENDANT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Plaintiff:
Nancee Adams-Taylor, Esq., U.S. Department of Labor, Washington, DC
For the Defendant:
Nelson Robles Diaz, Esq., Carmen Munoz-Noya, Esq., Lespier & Munoz-Noya, San Juan, Puerto Rico, Jose Luis Gonzalez Castaner, Esq., Gonzalez Castaner, Morales & Guzman, Hato Rey, Puerto Rico
A. OFCCP Was Not Required to Respond to Goya's Request for an Exemption Before Filing the Administrative Complaint.
Goya requested DeCA to grant it an exemption from the AAP requirements "based on the special conditions of our firm and the type of contract we have . . . ." D (Defendant's Exhibits) 6. DeCA denied the request because Goya had not shown that a refusal to grant the exemption would "either adversely impact national security or a special national interest." D7. DeCA notified Goya that it could pursue further its request for an exemption by submitting it to the contracting officer. Goya submitted the exemption request to the contracting officer as instructed. However, Goya, in support of its entitlement to the exemption, stated only that the federal government's business with Goya was beneficial to the government, that it was impossible for Goya to comply with the AAP requirement because Puerto Rico's population is 99.9% Hispanic, and that if OFCCP debarred Goya, many businesses in Puerto Rico would be closed. R. D. & O. at 7.
4 The regulations implementing VEVRAA and Section 503 were amended in 1998, see 63 Fed. Reg. 59642 (1998), codified at 41 C.F.R. Parts 60-250 and 60-741 (2001). However, there were no changes in the regulatory sections relevant to this case. Compare 41 C.F.R. §§60-250.1, 60-250.2, 60-250.3, 60-250.4 and 60-250.5 (1997) with 41 C.F.R. §§60-250.1, 60-250.2, 60-250.4, 60-250.5 and 60-250.40 (2001), and compare 41 C.F.R. §§60-741.1, 60-741.2, 60-741.4, 60-741.5 and 60-741.40 (1997) with 41 C.F.R. 60-741.1, 60-741.2, 60-741.4, 60-741.5, 60-741.40 (2001).
5 In September 1997 a third BPA was cancelled and rolled into the Roosevelt Roads BPA.
6 As noted above, Goya also presented the issue whether the ALJ erred by refusing to hold the administrative hearing in abeyance until the District Court ruled on its request for an injunction. The September 29, 2000 District Court order holding that Goya had not exhausted its administrative remedies and granting OFCCP's request to dismiss Goya's action for an injunction renders this issue moot.
7 The EEO clauses mandated by each of the three laws require a contractor to take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to the relevant characteristic applicable under each law. See 41 C.F.R. §60-1.4(a)(1); 41 C.F.R. §60-250.5(a)(1); 41 C.F.R. §60-741.5(a)(1).
8 Goya argues in its brief to the Board that the ALJ improperly excluded from evidence a Memorandum dated September 23, 1996, to the Department of Labor concerning the requested exemption. Given our resolution of the exemption issue, we need not decide whether the ALJ properly excluded the Memorandum from the record because its inclusion would not have changed our decision. Even if the exemption request had been pending at OFCCP at the time OFCCP filed the complaint, this fact would not alter our determination that Goya did not establish that OFCCP's failure to respond to the exemption request precluded it from filing the administrative complaint. See discussion supra at 3.
9 We express no opinion on the ALJ's conclusion that the remedies of contract cancellation and debarment are "penalties" and thus exempt from the operation of the Contract Disputes Act by its own terms. 41 U.S.C. §605(a).