OFCCP Issues Proposal Requiring Annual AAP Compliance Verification By All Contractors

OFCCP released its long-awaited AAP verification proposal Monday. According to the Federal Register ...

Posted by Lynn A. Clements, Director, Regulatory Affairs on September 14 2020
Lynn A. Clements, Director, Regulatory Affairs

OFCCP issues proposal requiring AAP...OFCCP released its long-awaited AAP verification proposal Monday. According to the Federal Register notice, OFCCP is seeking approval under the Paperwork Reduction Act for “an annual Affirmative Action Program online certification process for federal contractors and for a secure method for federal contractors to submit AAPs electronically to OFCCP when they are scheduled for a compliance evaluation.”

The proposal indicates that the agency has developed a data management portal called AAP-VI which will allow contractors to both certify compliance and upload affirmative action plans during compliance reviews. The agency is seeking comments on how the portal will be used by contractors, offering four different options.

Under the OFCCP’s proposal, covered federal contractors and subcontractors would be required to log in or create an account via a Login.gov connection. Users would then be asked to confirm certain contractor information, including information generally included on a contractor’s EEO-1 report, such as Establishment Name, Parent Name, Unit Number, Headquarter Number, Establishment Address, Establishment Status, EIN, DUNS, NAICS, Employee Count, and contact information (Name, Title, Phone, Email).

On an annual basis, each user would be required to use AAP-VI to submit an AAP compliance certification by selecting one of the following choices:

  1. Entity has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit. See 41 CFR Chapter 60.
  2. Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
  3. Entity within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

Contractors scheduled for a compliance review would also be required to submit their AAPs to OFCCP via AAP-VI under the agency’s proposal.

According to the proposal, existing contractors will have 90 days to comply with the certification requirement once it takes effect. New contractors and existing contractors who become subject to AAP requirements will have to certify 90 days after the 120-day period for completing their first AAP passes. After the initial year, the proposal indicates OFCCP will establish a date by which all existing contractors must renew their annual certification.

The OFCCP also requested public comment on three alternative certification and AAP data upload programs, as described below.

  • Option 1: All contractors would be required to certify annually. Contractors who are scheduled for a compliance evaluation will submit their AAPs as they currently do, via email or a delivery service.
  • Option 2: All contractors would be required to certify and upload their AAPs on an annual basis.
  • Option 3: All contractors would be required to certify every two years. Contractors who are scheduled for a compliance evaluation will submit their AAPs as they currently do, via email or a delivery service.

Although the proposal will go through a public notice and comment period, we expect that OFCCP may seek to finalize this proposal quickly, which means contractors may be required to certify compliance as early as 2021. Today’s notice is available at https://beta.regulations.gov/document/OFCCP-2020-0001-0002. Comments on the OFCCP’s proposal are due by November 13, 2020 and can be submitted online at https://beta.regulations.gov/docket/OFCCP-2020-0001/document.

Lynn A. Clements, Director, Regulatory Affairs
Lynn A. Clements, Director, Regulatory Affairs
As Director of Regulatory Affairs for Berkshire, Lynn provides guidance on regulatory strategies, and conducts analyses and expert interpretation of Office of Federal Contract Compliance Programs (OFCCP) policies and requirements.

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