Last fall, the Office of Federal Contract Compliance Programs (“OFCCP”) received approval from the Office of Management and Budget (“OMB”) to implement a new online platform — the Affirmative Action Program Verification Interface (“AAP-VI”) — to collect information from covered federal contractors (including covered subcontractors) regarding their affirmative action programs.
The proposed AAP-VI consists of two separate elements. First, it provides a portal for contractors to submit electronic copies of their AAPs and supporting documents to the OFCCP during an audit. Second, it creates a new “certification” tool for all covered contractors. This new tool would require each contractor to annually certify that it has (or has not) created and maintained compliant affirmative action plans at each establishment and to acknowledge that the contractor may not alter or update its current AAPs once such certification is made. One impact of such a tool is that it would give OFCCP, for the first time, a database of entities that identify as government subcontractors. The OFCCP would be able to use that information to identify future targets for enforcement activities, such as compliance audits.
OMB’s approval signifies its conclusion that the OFCCP’s record-keeping proposal would not be inappropriately burdensome on federal contractors or duplicative or in conflict with the work of other federal agencies. But OMB does not review the substance of the agency proposals or determine whether they are within the scope of an agency’s regulatory authority. The OFCCP claims that existing affirmative-action regulations allow it to require contractors to use the AAP-VI, and the OFCCP is proceeding with implementation without going through the rulemaking process for adopting new regulations.
Accordingly, the OFCCP just announced that its new AAP-VI portal will open for contractor registration on February 1, 2022, that the portal will be open for contractor certifications beginning March 31, 2022, and that contractors’ deadline to certify compliance (or lack thereof) will be June 30, 2022.
We expect to see legal challenges to the OFCCP’s authority to impose the AAP-VI portal requirements on contractors, as nothing in the existing regulations directly authorizes the OFCCP to require contractors to submit documents electronically or to make annual certifications of compliance. In the meantime, contractors should work with their legal counsel to evaluate whether they meet the regulatory definition as a “covered” contractor or subcontractor, to evaluate and update current affirmative action plans, and to evaluate the risks of compliance or noncompliance with the upcoming certification deadlines.