Friday, August 25, 2022: OFCCP Webinar Announced Yet Another Document Delivery Portal: This Time for Construction Contractors
OFCCP calls it the “Notification of Construction Contract Award Portal (NCAP).” With the creation of this, its fourth portal (or sub portal, depending on how you want to split electrons) after the AAP Verification Portal, the OFCCP Contractor Portal (initially launched contemporaneously with the AAP Verification Portal to allow those willing federal contractors to submit their Affirmative Action Programs under audit to OFCCP), the above announced FOIA EEO-1 Request Objection Portal, and the above-announced Higher Education registration portal within the OFCCP Contractor Portal, OFCCP appears to be going into the electronic data delivery portal business.
OFCCP admits (when asked), however, that it does not have the legal authority to compel contractors to file information with the agency in electronic or digital form (as the agency would prefer). While we have heard from many contractors that they prefer the ease of delivery of documents to OFCCP in electronic and digital format, this issue nonetheless appears to be of some great concern to a segment of the federal contractor community. We continue to get many inquiries which have been coming in since OFCCP first announced the Contractor AAP Verification Portal about OFCCP’s legal authority to compel contractors to deliver documents in electronic and/or digital format.
Also, OFCCP has taken no steps to publish a proposed Rule to require contractors to file documents with it via electronic and/or digital means that the agency otherwise has a right to access in paper form. Rather, it appears that OFCCP is going to simply rely on contractors to either (a) believe/assume OFCCP has the inherit right somehow to demand electronic and digital document deliveries, or (b) feel it is in their interest to voluntarily deliver electronic and digital documents to OFCCP.
OFCCP intends its latest portal to serve the agency’s need for construction contractor document deliveries. Rather than filing a Proposed, let alone Final, Rule, OFCCP instead issued informally, via e-mail, a “Notification of Construction Contract Award Portal (NCAP).” OFCCP’s NCAP landing page revealed that OFCCP’s intent in developing this online platform was “to modernize how the agency receives required notices about construction contract and subcontract awards.”
OFCCP hopes that this construction contractor portal will be the primary method construction contractors will use to enter, submit and track contract award notifications for OFCCP’s review. In stating, as the agency has, that OFCCP anticipates that the Construction Contract Award Portal will eliminate or at least reduce the need to submit contract award notifications via mail or email, it implicitly acknowledged, again, that it cannot compel contractors to deliver documents to OFCCP in electronic and digital form unless the contractor voluntarily chooses to do so. So, pick your poison.
For Supply & Service Contractors reading this Blog and unfamiliar with the unique requirements of OFCCP’s construction contractor Rules, please know that OFCCP’s construction contractor enforcement scheme has always required document submissions not otherwise routinely required to be delivered to the OFCCP from Supply & Service contractors. Specifically:
“OFCCP regulations, require construction contractors, contracting officers, applicants for construction contracts and covered non-construction contractors to provide OFCCP with [a] written notice – within 10 working days – of an award of a federal or federally-assisted construction contract or subcontract in excess of 10,000 dollars,…”
noted OFCCP Director Jenny Yang at the outset of a webinar held in conjunction with the launch of OFCCP’s construction contractor portal. See 41 CFR 60–4.2(c). [Note: The regulations are silent as to any requirement that this notification must be submitted online.]
Prior to the launch of the OFCCP construction Portal, such notices were submitted to OFCCP’s Regional District or area offices, by fax, snail mail, or email, Yang said. The new OFCCP construction contractor portal will make it “easier and cost-effective for contracting officers and contractors to submit notices of construction contract awards in a secure, electronic fashion,” she asserted. “Submitters will also receive confirmation that their notices were successfully transmitted, and NCAP will provide the agency with more timely and complete information on federal contracts such as the contract to (sic) start and end dates,” the Director added.
The portal’s launch comes at “a critical time for the federal government,” Yang observed. “Historic investments in the country’s infrastructure will increase the number of new federal construction contracts and contractors. The information you provide through NCAP will play an important role in enabling OFCCP to more efficiently schedule and perform compliance reviews to ensure that companies doing business [with the federal government met their] equal employment opportunity commitments.”
The White House Office of Management and Budget (OMB) has approved the Construction Contract Award Notification Form (Form CC-314) (as part of OFCCP’s Construction Recordkeeping and Reporting Requirements), said Daniel Calamari, Acting Director of the Branch of Data Systems in OFCCP’s Program Operations Division. However, OMB has no request from OFCCP to allow for the development of an electronic document delivery portal, or notice to OMB of any Rulemaking providing public Notice or seeking public Comment, as the Administrative Procedure Act requires.
The OMB’s specific webpage on this form contains links to pdf versions of the same form available via the NCAP. The webpage (as of Friday, August 26, 2022) indicates that the CC-314 form is “printable only” however, and is not available electronically. Nevertheless, in its Supporting Statement submitted to OMB on April 8, 2021, regarding the reauthorization of its Construction Recordkeeping and Reporting Requirements (located here), OFCCP does mention the NCAP but states only that the agency was contemplating the development of an electronic filing portal. Specifically, OFCCP’s Supporting Statement said:
“OFCCP seeks the reauthorization of the Construction Contract Award Notification Form …. This form is currently approved in paper and electronic format. The electronic form will eventually be accessible via an online portal, the Notification of Construction Contract Award Portal (NCAP), and the agency will include a batch upload feature for the portal that will allow contractors to submit information for multiple notices simultaneously. OFCCP seeks to request new, additional information in the form, such as the contractor’s email address and whether they are a prime or subcontractor.”
Following a Notice and Comment Period on OFCCP’s request to reauthorize use of the CC-314 form (not the NCAP), OMB approved the requested changes on July 6, 2021, through July 31, 2024. Of note, OFCCP’s April 19, 2021, Federal Register Notice (86 FR 20417) stated merely that OFCCP sought reauthorization of Form CC-314, but made no mention of the NCAP.
Other webinar presenters provided details on NCAP’s landing page and a demonstration on how to use the portal. The landing page includes: Frequently Asked Questions (FAQs); How-To Videos; NCAP Portal Access button; a User Guide; and a link to its Technical Support request webpage.