Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In December 2021, the Office of Federal Contract Compliance Programs (OFCCP) implemented a new requirement that all covered federal contractors and subcontractors annually certify that they have current affirmative action plans in place for each of their establishments or functional units as applicable. The Process for Certification, which was to be made through a new Contractor Portal, was rolled out over a five-month period beginning on February 1, 2022. OFCCP stated that contractors that failed to certify by June 30, 2022, would be at a higher risk for audit. OFCCP more or less made good on this threat when it published its 2023 list of contractors to be audited, limiting audits to just those contractors that had failed to certify through the Portal by December 1, 2022.
After this initial implementation of the portal, it was unclear as to when contractors should next re-certify. Since a majority of contractors probably have calendar affirmative action plans and others have plans beginning at other times of the year, a June 30 deadline for certification did not seem to make much sense going forward. Many contractors, therefore, assumed that future certifications would be timed to correspond to their plan year, and some contractors have already proceeded to recertify.
Under these circumstances, many were surprised when, on March 20, 2023, OFCCP announced an expectation that all existing covered federal contractors and subcontractors must again certify that they have developed and maintained an affirmative action plan for each of their establishments or functional units as applicable, within a specific window. In particular, OFCCP states that the certification must be made through the agency’s Contractor Portal between March 31, 2023 and June 29, 2023.
To complicate things, when contractors next certify, they must now provide the start date of their AAP Coverage Period. This functionality has already been added to the system. If a contractor enters a date that is older than one year, the system will generate an error message and not accept the certification.
This raises a question for contractors whose plans expire in, for example, July. Such a contractor can certify compliance in June but the plans that provide the basis for the certification will no longer be in effect just a month later. Presumably, OFCCP will still accept that certification as valid until the following June, but this is not clear. OFCCP says it will post a pre-recorded webinar with more information by March 29, 2023. Hopefully, this is one of the questions that will be addressed by that webinar.
OFCCP’s March 20, 2023 announcement again warns that contractors that have not certified by June 29, 2023 will be more likely to appear on OFCCP’s scheduling list than those that certified they are meeting their AAP requirements. As OFCCP followed through on this same threat in developing its first scheduling list of 2023, this warning should be taken seriously.
Construction contractors that are not also supply and service contractors remain exempt from the certification requirement, at least for the time being.
Companies that are new federal contractors or subcontractors this year have 120 days to develop their AAP(s) and must register and certify compliance through the Contractor Portal within 90 days of developing their AAP(s). Although the current deadline for existing contractors to certify is June 29, 2023, the Certification Portal will remain open past that date for new federal contractors and subcontractors.
Companies that are unsure of their status as federal contractors or subcontractors and whether to certify compliance should consult with legal counsel.