Wednesday, August 3, 2022
In a July 28, 2022 e-mail communication, OFCCP emphasized the need for federal government contractors to certify their compliance with the affirmative action plan (AAP) requirements of Executive Order 11246 through OFCCP’s Contractor Portal. Although the June 30, 2022 deadline for AAP certification has passed – and OFCCP’s e-mail makes clear the deadline was not extended – contractors who have not yet certified compliance should do so immediately to avoid additional consequences.
OFCCP’s e-mail asserts that federal contractors and subcontractors who do not certify compliance with the applicable AAP requirements will “be more likely to appear on OFCCP’s scheduling list than those who have certified their compliance.” Reducing the likelihood of being audited by OFCCP provides a strong incentive for contractors to ensure they are compliant with any AAP requirements and to certify those requirements. OFCCP’s e-mail also clarifies that both contractors who fail to certify and those who state in their certification that they have not developed or maintained an AAP will face an increased risk of audit. Accordingly, businesses that work for or with the federal government – whether directly or indirectly – should immediately ascertain whether they are subject to AAP requirements, implement any required AAP and certify compliance.
Contractors who do not certify compliance by September 1, 2022 will face additional consequences. OFCCP’s e-mail states that the agency will send a list of non-certifying contractors to federal agency contracting officers for the purpose of those contracting officers assisting OFCCP in achieving compliance. Notably, penalties under OFCCP’s regulations for failure to maintain an AAP include withholding of progress payments due under a federal contract, cancelation or termination of contracts and debarment from federal contracting. Even if a contractor avoids these drastic penalties, it may be faced with the requirement to enter a conciliation agreement with OFCCP that imposes burdensome recordkeeping and reporting obligations.
The certification requirement applies to all federal supply and service contractors and subcontractors who are required to implement an AAP - i.e., those with 50 or more employees and contracts of $50,000 or greater in value. OFCCP has not yet imposed a certification requirement on construction contractors.
Although the June 30, 2022 deadline for contractors to certify AAP compliance via the Contractor Portal has passed, federal contractors and subcontractors still have time and incentive to belatedly comply with the certification requirement. However, that time is running short with the September 1, 2022 deadline fast approaching, and contractors will need to act expediently to identify and comply with their AAP obligations.
© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 215