United States: GAO Report Assesses OFCCP Progress And Indicates Annual AAP Collection Not Far Off

Last Updated: October 7 2019
Article by Guy Brenner

The Government Accountability Office (GAO) recently released a report (the "2019 Report") evaluating the Office of Federal Contract Compliance Program's (OFCCP) implementation of the GAO's 2016 and 2017 recommendations for improving oversight of contractor compliance. The 2019 Report concludes that OFCCP has implemented only 4 of the GAO's 11 recommended changes.

The key findings and recommendations in the GAO's 2019 Report are described below, but perhaps the most interesting aspect of the 2019 Report is its revelation of OFCCP's plan to require the annual submission of contractors' affirmative action programs ("AAPs"). GAO had previously found that many (or even most) contractors were not preparing their annual AAPs, and recommended OFCCP develop a "mechanism" to monitor federal contractors' compliance with the AAP requirements "on a regular basis."

The 2019 Report reveals that OFCCP is about to do just that. According to the report, OFCCP is creating an online portal through which contractors can submit their AAPs annually. In addition, OFCCP is reportedly developing an information collection request to have the Office of Management and Budget (OMB) approve the annual collection of contractor AAPs.

We have been warning contractors for some time that OFCCP expects AAP compliance and will have little tolerance for contractors who they find have failed to comply. It now appears that soon OFCCP will not have to audit a contractor to learn if it has prepared an AAP; it will know by virtue of whether the contractor has submitted its AAP to the agency via a web portal. Moreover, based on prior statements, and GAO criticisms, OFCCP will likely use these AAP submissions (or the absence of such submissions) to target contractors for compliance evaluations.

We will continue to monitor this development and share any news when it breaks.

OFCCP Fully Implemented Three of the GAO's 2016 Recommendations

The 2019 Report states that OFCCP has fully implemented the GAO's 2016 recommendations concerning: (1) "the risk geographic imbalances in compliance evaluation assignments;" (2) "outreach and compliance assistance efforts and [] options for improving information provided to federal contractors;" and (3) "[the clarity of] existing contractor guidance." According to the report "no further action [is] needed" to address these areas.

OFCCP Has Failed to Fully Implement Four of the GAO's 2016 Recommendations

1. Changing the Contractor Scheduling List to Focus on Contractors With Greatest Risk of Non-Compliance

The 2019 Report notes that while OFCCP has taken steps to implement the Voluntary Enterprise-Wide Review Program (VERP), and a new scheduling list methodology, these steps may be inadequate to ensure compliance efforts target the contractors most at risk for non-compliance. The 2019 Report observed that OFCCP's new methodology's heavy reliance on previously utilized neutral selection factors may impede its ability to prioritize the highest risk contractors in compliance evaluations. Similarly, the 2019 Report stated that VERP would likely "do little" to identify contractors most likely to violate nondiscrimination requirements "without overwhelming volunteer participation." The 2019 Report recommended that OFCCP "[e]nsure the process for developing the scheduling list is not weighted by prior scheduling list factors" in order to fully implement the 2016 recommendations.

  1. Developing a Mechanism to Regularly Monitor AAPs

While the 2019 Report found that OFCCP had not fully implemented this recommendation, it also revealed that the OFCCP is on the verge of implementing an online portal through which contractors can submit their AAPs. The 2019 Report states that OFCCP "anticipates delivery of the portal by the close of fiscal year 2019." The report also revealed that OFCCP is developing an information collection request for the annual collection of contractor AAPs and "anticipates that OMB approval will be timely to align with completion of the AAP portal." The 2019 Report recommends OFCCP obtain OMB approval and launch the new AAP portal for public use.

  1. Providing Timely, Uniform, and Continuing Training to Staff

The 2019 Report indicates that OFCCP's recent attempts to standardize its training and evaluation process have not fully implemented GAO's 2016 recommendation. The 2019 Report notes that OFCCP retained an expert consultant in 2018 and fully implemented an action plan to "address any program gaps" in 2019. The 2019 Report observed that OFCCP was "developing a learning management system that will allow new compliance officers easy access to training soon after [] hiring." The 2019 Report recommends implementing the new system in order to fully comply with GAO's 2016 recommendations.

OFCCP Fully Implemented Only One of GAO's Five 2017 Recommendations

The GAO made five additional recommendations to OFCCP in November 2017. The 2019 Report finds OFCCP has fully implemented its recommendations to "take steps toward requiring contractors to disaggregate demographic data for the purpose of setting placement goals in [] AAP[s]". The 2019 Report concluded that OFCCP fully implemented this recommendation "by providing guidance to contractors regarding the option to include more specific goals in their AAPs."

The GAO pointedly notes "[t]he agency has not taken action to fully implement our other four recommendations that focus on improving oversight."

Four 2017 Recommendations for OFCCP to Address

  1. Analyze Internal Process Data From Closed Evaluations to Better Understand Cause of Delays in Compliance Evaluations

In 2017, the GAO found "OFCCP did not analyze data on closed evaluations to understand the root causes of delays in its compliance review process that may be straining its resources and inhibiting OFCCP's efforts to identify potential discrimination." The 2019 Report notes OFCCP had concluded that procedures outlined in its Active Case Enforcement Directive (DIR 2011-01) caused delays, but criticized OFCCP insofar as it failed to show "this conclusion resulted from the recommended analysis of internal process data from closed evaluations." The 2019 Report indicates OFCCP officials are continuing to study the causes of delays and potential policies to address them, but does not comment on the effectiveness of the agency's efforts. The 2019 Report states that OFCCP needs to "[d]emonstrate...internal policy changes are addressing the root causes of delays based on data analysis of actual evaluations" to fully comply with GAO's 2017 recommendation.

  1. Assess the Methods Used to Consider Industry Disparities in Compliance

In 2017, the GAO questioned the accuracy of OFCCP's methodology for identifying disparities by industry. The 2019 Report states OFCCP contends that it is "exploring the use of U.S. Census Bureau and administrative data to refine its selection process to focus on industries with a greater likelihood of noncompliance." The GAO notes that OFCCP's newly implemented scheduling methodology – which incorporates industries with the highest violation rates as a factor – should be further refined by OFCCP after it completes the most recent cycle of compliance evaluations.

  1. Evaluate Establishment-Based Approach to Compliance Reviews

The 2019 Report found OFCCP had submitted revisions to its process for selecting contractors for compliance reviews to the OMB in June 2019. The 2019 Report did not specify the changes OFCCP had made to its process. The GAO recommends the OFCCP obtain approval for its revisions to fully comply with its 2017 recommendation.

  1. Evaluate the Functional Affirmative Action Program

In 2017, the GAO recommended OFCCP evaluate the Functional Affirmative Action Program (FAAP) insofar as it could be a useful alternative to establishment-based Affirmative Action Programs. The 2019 Report indicates that OFCCP had taken steps to encourage contractors to use the FAAP program, but notes that "few contractors participate in this program and the agency has not conducted an evaluation of it." The GAO observed "[e]valuating the FAAP could help OFCCP improve its ability to achieve its objectives and may provide broader insight for OFCCP's overall enforcement approach."

GAO Report Assesses OFCCP Progress And Indicates Annual AAP Collection Not Far Off

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions