OFCCP releases ‘How to Certify Establishments or Functional Business Units’ video

OFCCP has posted a video showing contractors and subcontractors how they can certify their establish...

Posted by Beth Ronnenburg, SPHR, SHRM-SCP, President on March 28 2022
Beth Ronnenburg, SPHR, SHRM-SCP, President
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OFCCP has posted a video showing contractors and subcontractors how they can certify their establishments or functional business units. This functionality will be available on March 31, 2022. The certification process appears to be fairly simple. As expected, contractors will need to represent 1 of the follow 3 statements:

  1. Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/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 became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

These are the same three choices federal contractors must select when registering and renewing their entity within the governments System for Award Management (SAM).

OFCCP has added a note that instructs new contractors who select option three (3) will have 90 days from the development of their AAPs to access the Contractor Portal and update their certification. While this was not outlined in the user guide when OFCCP sought approval from the Office of Management and Budget (OMB), it was mentioned in a webinar OFCCP conducted on February 1, 2022. They mentioned the Contractor Portal will remain active after June 30, 2022 to allow for these certifications.

In addition to the three certification questions, contractors will also need to affirm the following declaration statement. ‘The contractor represents that: I attest that this Affirmative Action Program (AAP) certification is true and correct to the best of my knowledge. I understand that the penalty for making false statements with respect to this certification is prescribed in 18 U.S.C.1001.’  

This declaration statement is slightly different than the what the User Guide provided as a part of the OMB review process. First, the previous version of the declaration statement included a statement that the contractor understood that ‘I will not be able to edit my Affirmative Action Plan(s), after I click the submit button.’ That statement is no longer in the declaration statement. Second, the previous version indicated that ‘any attempt to refuse to submit an AAP certification, alteration or falsification of required records or information and any substantial or material violation or the threat of substantial or material violation may result in the institution of administrative or judicial enforcement proceedings. (CFR 60 1.26, CFR 60-300.65, CFR 60 741.65)’. The declaration statement now references the penalties available, which include fines and imprisonment, under 18 U.S.C.1001 if false statements are made with respect to certification. More information on this can be found here - (https://uscode.house.gov/browse/prelim@title18/part1/chapter47)

Once the certification and declaration statements are completed, contractors will be able to choose the establishments and functional business units to certify. OFCCP is not requiring that all establishments and/or functional business units be certified at the same time.

Please note that contractors and subcontractors need to first register and update their establishment(s) and/or functional business unit(s) prior to certification. Both registration and certification need to be completed by June 30, 2022.  

Beth Ronnenburg, SPHR, SHRM-SCP, President
Beth Ronnenburg, SPHR, SHRM-SCP, President
As President of Berkshire, Beth Ronnenburg, SPHR, SHRM-SCP leads one of the most reputable and respected brands in affirmative action compliance solutions.

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