OFCCP Seeks Comments On Annual AAP Certification Proposal

Morrison & Foerster LLP - Government Contracts Insights

[ co-author: Victoria Dalcourt Angle]

Government contractors may soon be required to certify annually that they have affirmative action programs (“AAP”) in place for their U.S. workforce. On September 14, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a notice seeking comments for its proposal to the Office of Management and Budget (“OMB”) for approval of: (1) an annual AAP online certification process for federal contractors; and (2) a secure method for federal contractors to submit AAPs electronically when they are scheduled for a compliance evaluation.

Contractors are currently only required to certify on the System for Award Management (“SAM”) whether they have developed an AAP. If approved, OFCCP’s proposal would also require contractors to certify to OFCCP annually whether they have developed and maintained AAPs at each establishment, as applicable, or for each functional or business unit. OFCCP’s proposed certification process is based, in part, on a 2016 GOA Report recommending that it “[d]evelop a mechanism to monitor AAPs from covered federal contractors on a regular basis,” including “electronically collecting AAPs and contractor certification of annual updates.” In 2018, OFCCP issued Directive 2018-07, announcing its intent to develop an AAP verification initiative so it could focus its audit efforts on contractors who are not likely to be in compliance, such as contractors that fail to certify they have a current AAP in place.

In an attached statement to the notice, OFCCP indicated that it has created a new online platform referred to as the Affirmative Action Program Verification Interface (“AAP-VI”). If approved, OFCCP plans to invite known federal contractor establishments within its jurisdiction that meet the AAP submission thresholds to create a login account on AAP-VI. Contractors that register would then be required to confirm certain information generally included in their EEO-1 reports, such as Establishment Name, Parent Name, Headquarter Number, Establishment Address, and employee counts.

Contractors scheduled for compliance evaluations will have to upload their applicable AAPs or FAAPs to the AAP-IV system in response to OFCCP scheduling letters. In addition, OFCCP would require contractors to certify each year in the AAP-VI system one of the following responses below:

  • Entity has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit.
  • Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable.
  • Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

Existing contractors would have 90 days from the date the proposal takes effect to submit this certification. New contractors and existing contractors who become subject to the AAP requirements after the effective date of the proposal will have 90 days after they have developed their AAPs to submit the certification. After the initial certification year, OFCCP plans to set a fixed date for all existing contractors to renew their annual certification.

OFCCP asked interested parties to submit comments on certain issues, including the frequency and level of information OFCCP should collect for the AAP certifications, the usefulness of the collection of these certifications for OFCCP’s enforcement and compliance assistance functions, and ways to minimize the burden of the collection of certifications on contractors. OFCCP also requested public comment on the following alternative AAP certification and AAP submission programs:

  • Option 1: All contractors would be required to certify annually. Contractors who are scheduled for a compliance evaluation will submit their AAPs as they currently do, via email or a delivery service;
  • Option 2: All contractors would be required to certify and upload their AAPs on an annual basis; or
  • Option 3: All contractors would be required to certify every two years. Contractors who are scheduled for a compliance evaluation will submit their AAPs as they currently do, via email or a delivery service.

We will continue to monitor this development and provide additional information and insights.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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