On December 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) officially announced its long-awaited annual affirmative action plan (AAP) certification process, which will require federal contractors and subcontractors (contractors) to register with its new Contractor Portal beginning in 2022.

The Contractor Portal will require covered contractors to certify whether they are meeting their existing requirement to develop and maintain annual AAPs. Specifically, contractors that hold a contract of $50,000 or more and employ 50 or more employees must develop and maintain AAPs pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973. If a contractor has at least 50 employees and a contract of $150,000 or more, then it must also develop an AAP pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. While contractors already certify AAP compliance, at least implicitly, as a part of the regular contracting process, this new requirement necessarily imposes an added obligation to conduct the appropriate diligence required in order to certify accurately and explicitly. As such, contractors need to be particularly mindful of False Claims Act exposure in the event of an inaccurate or false certification.

Importantly, the OFCCP will only require annual AAP certification for supply and service contractors. Contractors that are solely construction contractors (and not also supply and service contractors) are not required to certify compliance and will not be required to register for the Portal.

The OFCCP noted in its announcement materials that it will send an email to each covered federal contractor which previously provided the OFCCP with its email information. Contractors that have not previously provided the OFCCP with their email information will still be required to register with the Contactor Portal.

According to the OFCCP’s Contractor Portal FAQs, the Contractor Portal was developed in response to a U.S. Government Accountability Office (GAO) study which determined that the "OFCCP ha[d] no process for ensuring that the tens of thousands of establishments that have signed a qualifying federal contract have developed an AAP within 120 days of the commencement of the contract, or updated it annually." Currently, contractors provide their AAPs to the OFCCP only in response to audit request or complaint investigation.

In addition to the new annual certification process, which will monitor whether contractors are meeting their requirement to develop and maintain annual AAP(s), contractors will also be able to use the Contractor Portal to upload their AAP(s) during a compliance evaluation. The OFCCP details measures that it has taken to ensure contractor data is secure in accordance with the National Institute of Standards and Technology’s Federal Information Processing Standards, which are verified by the Department of Labor’s (DOL) Office of the Chief Information Officer.

The implementation process of the new Contractor Portal will follow the schedule below:

• February 1, 2022 – Contractor Portal Registration Opens
• March 31, 2022 – The 2022 Contractor AAP Certification Period Begins
• June 30, 2022 – The 2022 Contractor AAP Certification Period Ends

Going forward, new supply and service contractors will still have 120 days to develop their AAP(s). After that period, the new contactor must register and certify compliance in the Contractor Portal within 90 days.

There are numerous unknowns about how the portal will work and how the OFCCP will use the information imported into the portal. For example, it is currently unclear how the OFCCP will identify noncompliant contractors and subcontractors who fail to annually certify and whether there will be any enforcement action if a contractor or subcontractor fails to certify. Similarly, it is unknown whether procurement officers will consider the certification information before deciding whether to award a contract.

The Contractor Portal Landing Page currently provides a Rollout Timeline and links to FAQs. The page also indicates that additional resources, including How-To-Videos and User Guide and References, will be added to the page soon.

These processes and requirements are still developing and will be covered in future alerts.