Federal officials just announced that supply and service federal contractors and subcontractors who meet the designated jurisdiction thresholds for creation and maintenance of Affirmative Action Plans (AAPs) will soon need to register and certify they are meeting their compliance obligations to develop and maintain annual AAPs via the online Contractor Portal (an OFCCP Affirmative Action Program Verification Interface). This new requirement, announced on December 2, will be a significant addition to your compliance obligations if you are covered by this new requirement. In fact, until now, OFCCP has never required annual reporting regarding the maintenance of AAPs. While the contractor community has been awaiting this development since September 2020, when OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process, this announcement still sends quite a jolt to those employers who will quickly need to ramp up their compliance efforts. What do federal contractors need to know about this development?
How Did We Get Here?
Federal contractors have long been required to complete annual affirmative action plans that address women, minorities, individuals with disabilities and veterans in contractors’ workforces. However, these plans have largely been on the “honor system” with OFCCP, with contractors only needing to produce them during OFCCP audits or certify their existence during the contracting process. Indeed, a 2016 Government Accountability (GAO) Report recognized that OFCCP does not have a method to regularly collect the AAPs that contractors are required to complete, noting the agency audits approximately 2% of the contractor community annually. The GAO report recommended that OFCCP “develop a mechanism to monitor AAPs from covered federal contractors on a regular basis.”
Enter this certification portal. Interestingly, the agency did not engage in any rulemaking process to bring about this new obligation. Rather, the agency relied on existing OFCCP regulations to roll out this initiative, which authorize OFCCP to require an annual program summary.
What Will Contractors Be Required to Do?
Starting in 2022, federal contractors will need to provide certification of their AAPs to OFCCP via the AAP-VI portal. The agency has developed a gradual schedule for contractors that guides them through the registration and ultimate certification of their AAPs. The schedule for contractor registration and certification is as follows:
New contractors who have 120 days to develop their AAPs must register and certify compliance in the portal within 90 days of developing their AAPs.
Registration and annual certification will not exempt covered federal contractors and subcontractors from compliance evaluations.
The portal will also be the method by which contractors will upload their AAPs during scheduled compliance evaluations.
Notably, OFCCP has also provided several assurances regarding the safety of the information that is being uploaded to the AAP-VI, including login security limitations to full access of the content, password policies that require complex passwords, and purported safeguards to protect against user identity theft and modules that protect the website from nefarious attacks.
What Should Contractors Do to Prepare?
Although OFCCP will only require annual certification by supply and service federal contractors, this may well change to cover the entire federal contractor and sub-contractor community. Now is a good time to review your compliance practices.
Contractors should be prepared to complete the registration and certification process by next year. For registration, you will need your EIN number and Headquarter/Company Number and Establishment/Unit Number from the EEO-1 Reports. Contractors are permitted to have multiple users registered for the Contractor Portal, so you should determine who those users will be and if any back-ups are needed. OFCCP has already released some information regarding the interface and the information needed for this process, but will likely issue more guidance as well as provide updates to the FAQs that have already been populated by the agency.
You should also ensure that you have a plan in place to ensure that you are timely and accurately completing your AAPs so that you may affirmatively certify to the agency that you are in compliance. Finally, you should prepare for a future in which you may have to submit your AAPs to OFCCP, as many believe this certification portal is a giant step toward that potential requirement.