OFCCP has published a notice in the Federal Register extending the public comment period on its proposal to require federal contractors to submit an annual certification of their AAP compliance. The new comment deadline is January 28, 2021. While this notice does not state the reason for the extension, it appears the Agency received only 15 comments by the November 13, 2020 deadline.
As reflected in OFCCP’s original notice, it seeks regulatory authority to:
- Require federal contractors to annually certify they have prepared AAPs via an online interface; and,
- Institute “a secure method” to electronically submit AAPs when contractors are scheduled for an audit.
In a supporting document, OFCCP says it will use an online platform – the Affirmative Action Program Verification Interface (AAP-VI) – to execute a GAO recommendation “to collect and monitor Affirmative Action Programs (AAP) from covered federal contractors and subcontractors on a regular basis.” This recommendation stems in part from GAO’s observation that OFCCP audits only about 2% of federal contractor locations each year.
OFCCP designed AAP-VI to increase contractor compliance by creating an annual certification process and to optimize the compliance review process by creating a tool for scheduled contractors to upload their AAPs electronically for OFCCP’s review.
AAP-VI will have five user interfaces for federal contractors, including an AAP Upload Interface and an Annual Certification interface. Federal contractors would receive an OFCCP email with AAP-VI user registration instructions, which would also be posted on OFCCP’s website.
Once the process is effective, federal contractors would have 90 days to complete the certification process. “After the initial certification year, OFCCP will set a date by which all existing contractors must renew their annual certification.” New contractors would have 90 days from development of their AAPs to make the certification.
The proposed certification process would require each federal contractor to annually select one of the following options in the AAP-VI interface:
- 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.
- 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.
- 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.
Additionally, it is proposed that when scheduled for an audit, contractors would use AAP-VI to upload the applicable AAP(s) for the “scheduled establishment(s), functional business unit, or corporate headquarters.”
By January 28, 2021, OFCCP is seeking comments on a number of topics, including:
- The frequency of the certification (the proposal is for annual certification, but some comments suggest every other year);
- The type of information and level of detail to be required in the certification;
- Whether certification would be practically useful to OFCCP in service of its mission, as compared to the burden on contractors; and,
- Whether the estimated burden on contractors (36 minutes to certify) is accurate.
Contractors can submit their input to OFCCP via the federal e-Rulemaking portal at https://www.regulations.gov/ .