OFCCP Identifies 250 Federal and Federally Assisted Construction Contractors for Compliance Reviews

On June 5, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Construction Corporate Scheduling Announcement List (CSAL). The CSAL includes 250 employers that OFCCP has identified as federal or federally assisted construction contractors.

The CSAL is a courtesy notification.  If a construction contractor is on the list, the compliance review will start once the contractor receives OFCCP’s Office of Management and Budget (OMB) approved scheduling letter. OFCCP has curtailed the granting of extensions in connection with audits.  Accordingly, contractors should keep an eye on their mail (regular and email) and be prepared to submit full responses to an audit request within 30 days of receiving the scheduling letter. 

OFCCP schedules construction compliance reviews by identifying one of two geographic area categories, Standard Metropolitan Statistical Areas (SMSAs) and Non-Standard Metropolitan Statistical Areas (Non-SMSAs). Within each SMSA or Non-SMSA, there is a list of county(s) or county equivalent(s) that make up the geographic area. When OFCCP evaluates construction contractors, OFCCP looks at all of the contractor’s federal, federally assisted, and non-federal construction projects located across all counties in the scheduled geographic area.

As it did when it published the supply & service contractor CSAL, OFCCP also published its methodology for selecting construction contractors for audits. For the 2023 CSAL, OFCCP initially downloaded federal construction contracts valued over $10,000 from the USAspending database, a publicly available information system administered by the U.S. General Services Administration (GSA). The U.S. Department of Transportation also provided information for federally assisted construction contracts valued over $10,000. OFCCP states it retained records of contracts with estimated start dates prior to May 15, 2022 and end dates after May 15, 2025.

OFCCP further refined its list of construction contractors by:

  • Removing contractors that are: (1) currently under review; (2) currently in a monitoring period pursuant to a conciliation agreement; or (3) currently within the exemption period following a closed review; and
  • Selecting contractors with the highest aggregated contract value for all contract work performed in their assigned OFCCP district office’s jurisdiction.

OFCCP explains that the total number of construction contractors selected by region and district office was based on available staff measured in full-time equivalents, but regions can transfer cases across their district offices or to other regions to balance their workload when appropriate.

The published methodology makes clear that OFCCP does not purge unscheduled cases from prior lists before releasing a new scheduling list and OFCCP’s district offices will exhaust prior lists before selecting contractors from a newly released scheduling list.

Federal and federally assisted construction contractors should carefully review the CSAL for entities within their organizations. Entities on the CSAL should confirm compliance with Executive Order 11246’s Sixteen Affirmative Action Steps and promptly prepare VEVRAA and Section 503 affirmative action plans (as applicable) for those facilities.  In addition, federal and federally assisted construction contractors should review the compliance practices at those facilities and log and assess recruitment and outreach practices for year-over-year efficacy.

Prior construction scheduling lists have erroneously included some employers that are not federal contractors or not construction contractors.  Employers that believe they have been included on the CSAL by mistake may wish to contact OFCCP immediately to try to correct the error rather than waiting for the scheduling letter to arrive.  Because the best approach may vary depending on the circumstances, however, this is an issue that should be discussed with legal counsel.

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.