As the OFCCP moves closer to requiring annual compliance certification from service and supply contractors and subcontractors, last week it unveiled its compliance portal where contractors can submit their affirmative action plans (during a compliance review) and annually certify compliance with their affirmative action obligations. “The Contractor Portal is a new OFCCP platform where covered contractors must certify whether they are meeting their requirement to develop and maintain annual AAPs.” The portal will open on February 1, 2022. The OFCCP has also announced that the certification details (like the content of the certification and public availability of the information) will be available in the portal by March 31, 2022. “By June 30, 2022, existing contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.”
In its User
Guide, the OFCCP explains:
Currently, federal contractors submit their AAPs via mail or email. The AAP-VI system will be the primary source for entering, tracking and submitting your Affirmative Action Programs for review by OFCCP. AAP-VI will provide federal contractors a system to submit their Programs in a more efficient manner and provide visibility and reporting capabilities of the data submitted by the Programs.
The impetus for the new program presumably comes from a 2016 GAO report finding that
the OFCCP does not effectively track compliance with the affirmative action
obligations of the vast number of contractors and subcontractors.
While the specific details of the required contractor certification
have not been revealed, there was a sample of a question and certification page
for companies seeking to receive a federal contract through the System for Award
Management:
Select the checkbox pertaining to the correct SAM statement that best describes your AAP requirements.
o It has developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
o It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
o It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.
New federal contractors have 120 days in which to develop an
affirmative action program and 90 days after that in which to certify their
compliance.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
