The OFCCP is moving forward with the rollout of its new Contractor Portal (previously designated the Affirmative Action Program Verification Interface) for federal government contractors and subcontractors. The OFCCP is directing all supply and service contractors and subcontractors (construction contractors are not currently covered) who are required to develop and maintain affirmative action programs to register in the Contractor Portal.
The federal government requires contractors with at least 50 employees (company-wide) and a single covered prime government contract or subcontract of $50,000 or more to develop a written affirmative action program (“AAP”) for the employment and advancement in employment of women, minorities, and individuals with disabilities. If the contractor has at least 50 employees and a single covered contract or subcontract of $150,000 or more, it must also develop an AAP for protected veterans.
The OFCCP’s new initiative requires (among other things) all covered contractors and subcontractors, for the first time, to register in an online Contractor Portal and to certify compliance with their affirmative-action obligations. The Contractor Portal opened for registration on February 1, and contractors can now access the Portal to register their company. Companies are required to set up each AAP establishment in the Portal separately, and they may authorize multiple users (including users unique to each establishment) to access their Portal account. The OFCCP encourages, but does not require, contractors to visit the Contractor Portal and complete the registration process as soon as possible. While the registration process is typically simple and straightforward, contractors sometimes run into technical difficulties that can take a long time to resolve. Contractors who wait until the last minute to attempt to register do so at their peril.
The Contractor Portal is also open for contractors to begin verifying their status. Contractors will be required annually (1) to certify under penalty of perjury whether they have (or have not) created and maintained compliant AAPs for each establishment and (2) to acknowledge that the contractor cannot alter or update its current AAPs once it has certified compliance. The OFCCP’s deadline for contractors to register in the Contractor Portal and to submit this year’s verifications is June 30, 2022. The OFCCP has indicated that covered contractors who fail to register and to certify that they are in full compliance will be more likely to be selected for audit by the OFCCP.
There are significant legal questions as to whether the OFCCP has authority to compel compliance with its Contractor Portal requirements without first going through the formal rule-making process — a process the OFCCP claims it need not follow in this context. But, to date, no legal challenges to the OFCCP’s authority have been litigated. In seems, in part, that many contractors who already conscientiously comply with their affirmative action obligations actually welcome the Contractor Portal initiative, as it will help level the playing field with other contractors who have not been complying.
With the OFCCP’s June 30 timeline upcoming, contractors should work with their legal counsel now to evaluate whether they meet the regulatory definition as a “covered” contractor or subcontractor. In the past, if there were questions about whether a particular company were obligated to maintain an AAP, the company always could elect to comply with the affirmative action obligations just in case, so as to avoid any risk of noncompliance, while still preserving any arguments as to its status for a later date. But the Contractor Portal now forces the hand of such companies either to register themselves as covered contractors in the Portal (an admission that potentially would preclude them from arguing later that they are not covered) or to risk being out of compliance. This significance of this determination is doubly-important for subcontractors, because — absent registration in the Contractor Portal — the OFCCP has no standardized means for identifying government subcontractors.
If covered, companies also should work with their counsel or other affirmative-action consultants to evaluate and update current AAPs prior to certification and to evaluate the risks of compliance or noncompliance with the new Contractor Portal requirements.