It’s here! As we’ve been discussing, the Agency announced today during a live webinar the opening of the Contractor Portal, which will be used for AAP certification, as well as submission of data and documents during compliance reviews. However, construction contractors will not be required to register in the Portal or certify AAP development – largely because such contractors are not required to prepare written AAPs under Executive Order 11246.
Between February 1 and March 30, 2022, the Portal will be open for registration only. The Portal will not allow actual certification until March 31.
The deadline for existing contractors and subcontractors – those subject to Executive Order 11246, Section 503 and/or VEVRAA – to certify AAP development is June 30, 2022, although the Portal will remain open past June 30 for late registration. Contractors will certify that they have or do not have current AAPs in place as of the certification date. For example, a contractor with May 1, 2021 AAPs in place, can certify on April 1, 2022 that it has current AAPs in place because those May 1, 2021 plans have not yet expired.
New federal contractors and subcontractors will have 120 days from entering a covered contract to prepare written AAPs – according to existing regulations – and 90 days from then to register and certify in the Portal.
The Agency spent much of the webinar conducting a live walk-through of the registration process, which appears to be reasonably user-friendly. The Portal also includes a User Guide and Updated Frequently Asked Questions. There is also a Contractor Portal Technical Help Desk available to assist with any questions.
What about Data security? The Agency touted that the Portal follows applicable data security standards issued by the National Institute of Standards and Technology (NIST).
OFCCP will conduct another webinar – focused on certification – on March 31, the day the Portal will be open for certification. Thus, today’s Agency webinar did not address more substantive questions about AAP certification. One question the Agency did answer is, what are the consequences of failing to timely certify AAP development? The answer goes to one of the objectives of Portal certification: to identify non-compliant contractors and subcontractors for audit. Those contractors/subcontractors who do not timely certify will be “more likely” to be selected for a compliance evaluation.
That answer begs the question of whether and how the Agency will be able to identify covered contractors and subcontractors who fail to timely file. OFCCP says it will use (outdated) 2018 EEO-1 reports to notify existing contractors and subcontractors of the certification obligation and prepopulate registration data. However, there will be procedures for updating relevant information before certification.
Parent companies can add users for subsidiary entities that are responsible for developing and certifying their own AAPs. The Portal will allow contractors to register and certify consistently with the way it prepares and files EEO-1 Reports, but parent entities are ultimately responsible for certification by their subsidiaries.
Significantly, a covered contractor/subcontractor that does not receive an OFCCP notice email is still obligated to register and certify.
While the Agency has a good handle on identification of prime contractors, it acknowledges it does not have a comprehensive way of identifying covered subcontractors. To that end, included in OFCCP’s latest Regulatory Agenda is a proposal to require prime contractors to notify OFCCP of covered subcontracts. For some employers, it is difficult at best to determine if it has covered federal subcontracts. OFCCP has little guidance for such employers, except to provide coverage guidance at its website. This may leave some employers with a register-or-not conundrum.
In an e-mail delivered after the webinar, OFCCP “strongly” urged covered contractors and subcontractors to register as soon as possible so that they may also timely certify their AAPs by June 30.
Stay tuned for more substantive information regarding AAP certification.