On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and service contractors and subcontractors to certify annually whether they have developed and maintained an affirmative action program (AAP) for each of their establishments or functional units. OFCCP has created a new "Contractor Portal" for contractors to make those certifications and for contractors to submit their AAPs to OFCCP during compliance evaluations.
Before now, federal contractors and subcontractors have not been required to certify to OFCCP that they have developed and maintained AAPs. Although prime contractors have to certify whether they have developed AAPs in the System for Award Management, historically, OFCCP has had no process for ensuring that contractors and subcontractors have developed and maintained AAPs for each of their covered establishments. As we previously reported, in September 2020, OFCCP sought comments on launching the AAP VI. Since then, OFCCP sought and received approval from the Office of Management and Budget for the AAP VI, including a User Guide and an Administrator Guide.
With the implementation of the AAP VI, OFCCP believes it will now have the information to ensure "that all covered contractors are meeting their obligation to develop and maintain written AAPs." Under the new AAP VI, supply and service contractors who meet the thresholds for having to create AAPs must certify in the Contractor Portal by June 30, 2022, that they have developed AAPs for each establishment (or functional unit, if the contractor has an OFCCP-approved functional affirmative action plan).
Contractors will have a few months before they can register and start certifying compliance. The key dates are as follows:
- On February 1, 2022, OFCCP will allow contractors to begin registering for access to the Contractor Portal. If OFCCP has contact information for a contractor, it will send an email inviting the contractor to register for the Contractor Portal.
- On March 31, 2022, contractors can start to certify that they have developed and maintained AAPs.
- By June 30, 2022, contractors must complete their certifications.
OFCCP has also provided FAQs regarding the Contractor Portal. Some notable points from those FAQs include the following:
- Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and they should not register for the portal.
- New contractors have 120 days to develop their AAP(s), and they must register and certify compliance in the Contractor Portal within 90 days of developing their AAP(s).
Although OFCCP confirms that certifications will not exempt contractors from OFCCP compliance evaluations, failure to submit a certification or certifying that the contractor has not developed or maintained an AAP could lead to contractors being selected for a compliance evaluation or other enforcement actions. According to Bloomberg Law, an OFCCP official stated that:
OFCCP will be able to use contractors' annual certification response as an additional criterion for the agency's neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review.
OFCCP states that it will provide more information about the AAP VI in the coming months, including "how-to videos" and a "User Guide." For now, there remain a number of unanswered questions, including what AAP plan years contractors will need to certify, how OFCCP will use the certification process for scheduling of compliance evaluations or enforcement actions, and whether OFCCP will require contractors to provide any additional details about their AAPs beyond certifying that they have created and developed them.
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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