The U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP), which administers and enforces contractor nondiscrimination and affirmative action obligations, recently rolled out a new Contractor Portal (“the Portal”) where covered federal contractors and subcontractors (collectively “contractors”) must register and certify their compliance with affirmative action program (AAP) requirements. The Portal will also be the platform for contractors who are subject to OFCCP compliance evaluations to submit their AAPs.
OFCCP launched the Portal at the beginning of February 2022, allowing contractors to begin registering their company information. Now, as of March 31, 2022, contractors are able to certify their AAP compliance via the Portal. The key date for contractors to bear in mind is June 30, 2022, which marks the deadline to submit their initial certification on the Portal. Thereafter, covered contractors must complete the certification on an annual basis. New contractors have 120 days to develop their AAP(s), and must register and certify compliance through the Portal within 90 days of developing their AAP(s). Note that contractors are not required to actually submit their AAPs during the certification process.
Who is Subject to the OFCCP Certification Requirement?
Certification via the Portal is required for service and supply contractors and subcontractors who meet certain jurisdictional thresholds that require AAPs. Specifically, contractors with at least 50 employees and at least one contract worth $50,000 or more must develop AAPs pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973, and contractors with at least 50 employees and a contract worth $150,000 or more must develop AAPs pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Contractors that are solely construction contractors (and not also service or supply contractors) are not required to register for or use the Portal.
Key Implications for Covered Contractors
For contractors, who must certify compliance with AAP obligations as part of their System for Award Management (SAM) registration, the OFCCP certification process may feel more familiar than for subcontractors, who are not required to register with SAM. For both covered contractors and subcontractors, though, the Portal is a new requirement that provides the OFCCP direct, first-hand data about their companies’ compliance with the requirement to develop and maintain written AAPs. Accordingly, contractors covered by the certification requirement should be aware of its implications. OFCCP has stated that contractors who do not timely certify compliance are more likely to be selected for compliance evaluations or audits. Notably, as with any certifications or representations provided to the Government, contractors who certify that they have “developed and maintained” an AAP, but have not actually done so, could be subject to liability under the False Claims Act or for false statements under 18 U.S.C. § 1001. Contractors would also be wise to ensure they are reporting their AAP status consistently across various Government portals or submissions.
To assist contractors in using the new Portal, OFCCP has issued FAQs and guidance including how-to videos and user guides on its contractor portal website. OFCCP will also host a webinar on April 7, during which answers to common questions will be discussed. If you have questions about the Portal, your status as a federal contractor or subcontractor, or your compliance with OFCCP requirements, RJO attorneys are here to assist you.