Tuesday August 31, 2021: OFCCP’s New Emerging AAP Delivery Portal and AAP “Verification” Program: Much Ado About Nothing
- Both New Initiatives Lack Regulatory Authority and Both Are Unenforceable
- But, will contractors nonetheless flock like lemmings?
What Just Happened
OFCCP has now received approval (click on all boxes of interest to you on the linked document to make that information appear) from the Office of Management and Budget (“OMB”) following its “Information Collection Review” of OFCCP’s “Information Collection Request” to go forward for three years with two inter-related contractor compliance initiatives. The Obama OFCCP envisioned both initiatives, the Trump OFCCP put them forward to OMB and the Biden OFCCP now hopes to implement them. They are what I will call the “AAP Portal Filing Initiative” and the “AAP Certification Initiative.”
Significantly, OFCCP advised OMB’s Office of Information and Regulatory Affairs (“OIRA”) in a lengthy April 28, 2021 Supporting Statement A that it does NOT intend to seek regulatory authority for either new Initiative. (Read Supporting Statement A if you want to understand what OFCCP is proposing to do. It is all there in one place…in one lengthy and detailed, but well-written, document.) Of course, OFCCP like all federal agencies, needs legal authority independent of OMB’s approval of both Initiatives pursuant to OMB’s Paperwork Reduction Act oversight authority. OMB does not anoint federal agencies with substantive legal authority to act, but rather simply reviews the agencies’ proposed burden on the regulated community and the “information collection requests” the agencies propose to OMB for review and approval. OMB’s role is only to make sure that what the federal agencies are proposing is not inappropriately burdensome on the regulated community and is consistent with the work of other federal agencies and neither duplicative of nor in conflict with them.
Helpful OFCCP Navigational Documents
Apart from reading OFCCP’s Supporting Statement A, you may wish to peruse two OFCCP “Guides” designed to help those persons assigned to input data into OFCCP’s portal software and make the called-for declarations discussed below (among those federal contractors and subcontractors which choose to volunteer to comply with one or both of OFCCP’s new Initiatives.) The two Guides are the OFCCP’s User Guide for the Verification Interface (AAP-VI) (26 pages) and OFCCP’s Administrative Guide for the Verification Interface (AAP-VI) (22 pages). Both are easy reads because they are well organized and read like childrens’ books. Both Guides display scant language on their pages. Also, pictures on virtually every page interrupt the text and display screen shots of the pages in the filing portal software users would be completing, if they choose to comply with OFCCP’s requests to contractors that they use the portal. A nice “Show-n-Tell” for those persons contractors and subcontractors choose to punish by assigning them to complete all this paperwork if the contractor/subcontractor agrees to submit and comply with either or both of OFCCP’s two new Initiatives.
OFCCP told OMB that it would require contractor compliance with both Initiatives 90 days after OFCCP was able to launch its portal I will describe, below. OFCCP has thus far given no private or public report of when it will complete the Portal and will open it for use by covered federal Government contractors and subcontractors. In addition, before OFCCP may open its portal to federal contractors/subcontractors subject to audit to deliver their AAPs (if they choose to do so) through OFCCP’s portal, OFCCP needs to double back yet to OMB to request a change to all of OFCCP’s audit Scheduling Letters to direct the submission of AAPs to OFCCP’s coming portal. So, this is going to be a while. Many jaded federal contractors have already opened side betting pools handicapping the odds as to when OFCCP might finish building, testing, making operational its portal, getting all the needed paperwork to completion and then allowing 90 days to go by. Not this Fiscal Year is an entirely safe bet (only 24 days left to the new federal Fiscal Year. Where is that FY 2022 federal Budget, by the way?) Also, “not this calendar year” is likely also a safe bet (only 116 days left in this calendar year, including many holidays). Spring 2022?
The Portal Initiative
OFCCP first proposes to build an electronic portal to receive, during OFCCP audits, the Affirmative Action Programs (“AAPs”) for (a) Minorities and Women, (b) Individuals with a Disability, and (c) Protected Veterans which OFCCP Rules require BOTH covered federal Government contractors AND subcontractors to develop, maintain and then annually update.
Let’s call this the “Portal Initiative,” although the title OFCCP has officially given its portal is “Affirmative Action Program Verification Interface (AAP-VI)”. For those of you with minds predisposed to mathematical calculations or for whom Latin is your first language, the “VI” stands for “Verification Interface,” not Roman numeral six. Acting as a portal, AAP-VI is simply a mailbox to receive, OFCCP hopes, electronic (i.e., OFCCP will receive PDF documents through the portal) and digital copies of all three types of the above-referenced federal contractor Affirmative Action Plans (including Functional Affirmative Action Plans (“FAAPs”) once OFCCP has summonsed them from Supply and Service contractors, including universities and colleges (but not construction contractors since they do not develop or maintain Affirmative Action Plans) to review in an OFCCP Compliance Evaluation (i.e., audit).
Significantly, OFCCP acknowledges privately to OMB in Supporting Statement A, what OFCCP has said for decades and the federal contractor community knows well: that OFCCP currently lacks regulatory authority to require electronic or digital filings and is hoping to turn what OFCCP describes as currently a “Best Practice” into a hard and enforceable “requirement” operating on federal contractors. In reality, OFCCP is simply hoping that federal contractors will “play ball” with OFCCP and exercise their discretion to do something OFCCP cannot otherwise compel federal contractors to do: file electronically. More later on as to why many and an increasing number of contractors are fearful of the OFCCP portal.
The AAP Certification Initiative
Independently of the “Portal Initiative,” OFCCP seeks to also compel covered federal Government Supply & Service contractors and subcontractors to make three annual “certifications” by check-box Declarations, via the AAP-VI Portal. Let’s call this the “AAP Certification Initiative.” (The VI name (“Verification Interface”) OFCCP has given its portal is unfortunate in that it does not track the language OFCCP uses on the AAP “certification” forms it has created within the AAP-Verification Initiative or the “certification” language the U.S. Government Services Administration (“GSA”) has used for many years in its SAM (System for Award Management) (federal contract (not including subcontracts) and federal grant bid and award software.)
You may wish to also consult pages 16 to 18, inclusive (“AAP Certification”) of its User Guide (linked above) to see OFCCP’s screen shots of its coming required certifications.
Want additional insight?
Take a deep dive in today’s bonus blog post detailing the unexpected issues, the time of the roll out, and the special “surprise” OFCCP has in store for some AAP vendors.