A 2016 Government Accountability Office (GAO) report noted that the Office of Federal Contract Compliance Programs (OFCCP) did not have an official method of validating contractors’ affirmative action plans or programs (AAP) compliance. GAO recommended that OFCCP progress from an “honors” or self-representation system to a mechanism that regularly monitors AAP compliance. In September 2020, OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process.
On December 2, 2021, the U.S. Department of Labor (DOL) announced that federal service and supply contractors and subcontractors presently required to create and maintain written AAPs will also be required to certify whether they meet annual AAP requirements. Certification will be through a secure online Contractor Portal developed and monitored by OFCCP. Contractors can also upload their AAPs to the portal during a compliance evaluation. Certifying compliance in the Contractor Portal does not exempt a contractor or subcontractor from compliance evaluations. Contractors and subcontractors that are only construction and not supply and service contractors are not required to certify AAP compliance.
Timeline for OFCCP Contractor Portal
OFCCP’s schedule for the new Contractor Portal is as follows:
- On February 1, 2022, contractors and subcontractors can visit and register to access the portal. OFCCP will email a registration invitation to each covered federal contractor and subcontractor over which it has jurisdiction and whose email information is available in its system.
- On March 31, 2022, contractors and subcontractors can certify their AAP compliance using the portal’s certification feature.
- By June 30, 2022, existing contractors and subcontractors must certify whether they have developed or maintained AAPs for applicable establishments and/or functional units.
Impact on Federal Contractors
The Contractor Portal will allow OFCCP to verify that all qualified contractors and subcontractors develop and maintain written AAPs. However, requiring certification of AAP compliance raises the stakes for contractors and subcontractors in the following three main ways:
- Contractors and subcontractors that claim to comply but have not prepared and updated their annual AAP may be subject to liability under the False Claims Act.
- Contractors and subcontractors who do not certify compliance may jeopardize their chances of successfully bidding on a federal contract.
- Contractors and subcontractors that fail to certify compliance increase the likelihood of being selected for an OFCCP audit.
Thus, contractors and subcontractors should promptly take the necessary steps for preparing and updating their AAPs to certify compliance by June 30, 2022, and annually after that.
New contractors and subcontractors have 120 days from the commencement of a covered federal contract to develop their AAPs and 90 days from then to register and certify compliance on the Contractor Portal. Thus, contractors and subcontractors should prepare for registration and completion of the certification process. To prepare, first obtain or locate the EIN, the headquarters/company number, and the establishment/unit number from the EEO-1 Reports. Second, determine who will have access to the Contractor Portal – more than one user is permitted. And third, visit the Contractor Portal landing page. OFCCP posted a set of frequently asked questions and will publish “how to” videos and a user guide soon.
If you have any questions about the Contractor Portal, please contact Todd Overman, chair of our Government Contracts Practice group, who regularly advises clients on regulatory and compliance matters.