On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) opened the certification period for its new Federal Contractor Portal (Portal). Supply and service federal contractors and subcontractors (contractors) are required to certify the status of their annual affirmative action plans (AAPs) for each establishment before June 30, 2022.
As previously reported, the OFCCP opened the Portal for registration on February 1, 2022, allowing contractors to visit the site, register their company and validate their information. The OFCCP updated the resource landing page on its web page, which — in addition to a previously provided rollout timeline, user guide and FAQs — now includes additional FAQs addressing certification and registration, how-to videos, a user guide and one-page guides for registration and certification. Contractors are now required to register (if not done previously) and certify compliance as described below.
For each establishment, contractors must select one of the following three options to certify their compliance with affirmative action programming requirements:
- Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit.
- See 41 CFR Chapter 60.
- 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. See 41 CFR Chapter 60.
- Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.
Existing contractors must develop an AAP within 120 days of entering into a contract. The OFCCP clarified, however, that new contractors selecting option three above will have 90 days from the development of their AAPs to register and certify within the Portal.
When certifying compliance with the AAP requirements, the OFCCP will consider the following as part of the affirmative action program that each contractor must develop and maintain (assuming that it meets applicable monetary threshold requirements):
- The Executive Order 11246 (women and minorities) AAP contents, including required annual analyses, described in Subpart B or 41 CFR 60-2.
- The VEVRAA (protected veterans) AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-300.
- The Section 503 (individuals with disabilities) AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-741.
Covered government contractors are required to use the Portal to certify whether they currently meet their AAP requirements based on their compliance as of the date of certification. The OFCCP provides the following examples:
- Contractors with a June 1, 2022 AAP start date which certify on March 31, 2022, would be certifying compliance based on their 2021 AAP (effective June 1, 2021 through May 31, 2022).
- Contractors with a June 1, 2022 AAP start date which certify on or after June 1, 2022, would be certifying compliance based on their 2022 AAP (effective June 1, 2022 through May 31, 2023).
The OFCCP does not require contractors to upload AAPs to the Portal during the certification process.
Using the Portal
Once registered, contractors will be able to add establishments to their profile that may have changed after their 2018 EEO-1 report. Contractors will also be able to request a “close” status for establishments no longer held. The portal will maintain access to these records in the event an establishment’s status changes.
In addition to companies being able to update their information upon registration, the Portal system also allows “Admin users” (users that can modify all company records, invite new users, and assign them establishment or functional/business units to manage) to update company information. The initial registrant is automatically made the Admin user and no other users will be given administrative privileges. Contractors should take special care to store and retain the administrative credentials for future use.
Going forward, contractors will be required to use the Portal to certify their AAP compliance annually. During the 2022 inaugural year, existing contractors are required to certify between March 31 and June 30, 2022; after this initial certification year, however, the OFCCP will set a date by which all existing contractors will be required to renew their annual certification.
Unknowns remain about how the OFCCP will use the information imported into the portal. For example, it remains unclear how the OFCCP will identify noncompliant contractors and subcontractors who fail to annually certify and whether there will be any enforcement action if a contractor or subcontractor fails to certify. Similarly, it is unknown whether procurement officers will consider the certification information before deciding whether to award a contract. To date, the OFCCP has stated in its FAQs that it “uses the certification information to help determine contractors’ compliance with their requirements to develop and maintain AAPs.”
These processes and requirements are still developing and will be covered in future alerts. If you have questions or need assistance in developing compliant AAPs, please contact a member of Faegre Drinker’s OFCCP and affirmative action compliance team.