The Office of Federal Contract Compliance Programs (OFCCP) has revised some of its Frequently Asked Questions (FAQs) regarding scheduling letters, providing federal contractors with additional clarity around the audit submission process.
The agency had previously granted one automatic 30-day extension for “supporting data related to the EO 11246, VEVRAA and Section 503 AAPs” as long as the contractor requested the extension prior to the initial 30-day due date, and that the “basic EO 11246, Section 503 and VEVRAA AAPs” were submitted by that initial 30-day due date. The lack of clarity around what the agency considered the “basic AAP” and the “supporting data” created confusion for contractors. It became clear that OFCCP expected to receive items 1 through 14 from the itemized listing as a part of the “basic AAP”. Many of those items were difficult to provide, especially for contractors that needed additional time to prepare their submission.
The revised FAQ states that “The agency grants one automatic 30-day extension if the company timely proffers the AAP narrative (non-data portion).” It is our assumption that by stating “non-data portion”, the agency has signaled it will accept the AAP narratives without any reports as the “basic AAP” submission. However, it remains to be seen how this will be implemented by the agency.
Another revised FAQ adjusts what information contractors must provide if they are more than six months into their plan year when the scheduling letter is received. The scheduling letter notes that if a contractor receives the letter when they are six months or more into their plan year, they must “submit information that reflects current year progress” for a variety of elements for the itemized listing. The previous FAQ specified that the contractor must submit information “for every completed month of the current AAP year”. For example, a contractor with a January AAP date that received a scheduling letter in September was asked to submit progress data from January through August. This revision to the FAQ reduces the burden on contractors and brings OFCCP’s expectations for submission in line with how most contractors complete their mid-year monitoring of AAPs.
A final significant change to the FAQs reinstates a previous FAQ clarifying what AAP contractors can submit when they receive the scheduling letter close to their annual AAP plan date. The revised FAQ states that “if a scheduling letter is received within 30 days of the annual date of a contractor’s AAP(s), the contractor may, at its own option, submit the updated AAP(s) for desk audit”. This FAQ existed previously but was removed from the agency’s website in 2019. This created confusion for contractors who received scheduling letters close to their plan date, as some compliance officers directed contractors to submit their AAP that was about to expire, even though they might be days away from their new AAP plan date. Allowing contractors to choose which AAP they provide gives contractors the option to submit their most current plan, which would include the most recent employment data and utilization statistics, as well as highlighting their current outreach and recruitment efforts.
OFCCP’s FAQs on scheduling letters and itemized listing can be found here. Berkshire will continue to monitor how these revised FAQs are implemented by the agency and the impact on federal contractors.