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.
On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. The CSAL includes 452 establishment reviews, 24 Corporate Management Compliance Evaluation reviews, and 24 Functional Affirmative Action Program (FAAP) reviews. OFCCP has stated that it will begin to send out scheduling letters to some of the contractors on the new list immediately. Contractors should note, however, that it often takes OFCCP several years to work through a scheduling list.1
The CSAL is a courtesy notification, and the review will start once the establishment receives OFCCP’s Office of Management and Budget (OMB) approved scheduling letter. OFCCP has further curtailed the granting of extensions in connection with audits. 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 also published its methodology for selecting contractors for audits. For the 2023 CSAL, OFCCP selected federal contractors and subcontractors that are required to maintain an Affirmative Action Program (AAP) but did not complete their mandatory annual certification in the OFCCP Contractor Portal as of December 1, 2022. OFCCP’s methodology demonstrates the importance of timely certifying compliance on the Contractor Portal.
OFCCP announced its new contractor portal on December 2, 2021. Beginning on March 31, 2022, contractors were able to utilize the certification feature in the portal to certify their AAP compliance. Existing contractors were required to certify whether they have developed and maintained an affirmative action program for each of their establishments or functional units by June 30, 2022, and new contractors have 120 days to develop their affirmative action program and register and certify compliance through the Contractor Portal within 90 days of such development.
OFCCP states it created this 2023 establishment review list by downloading federal contracts valued at $50,000 or more from the USAspending database. OFCCP states it removed:
- Contractor and subcontractors that certified in the OFCCP Contractor Portal as of December 1, 2022;
- Contracts awarded to federal, state, local, municipal, tribal, city, and foreign governments, school districts, universities and colleges, and construction companies;
- Healthcare contracts that fall under OFCCP’s Final Rule: Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers, 85 FR 39834 (July 2, 2020) and OFCCP’s Extending the Scheduling Moratorium for Veterans Affairs Health Benefits Program Providers Directive (DIR 2021-01);
- Contracts expiring on or before March 31, 2023; and
- Establishments with less than 200 employees;
OFCCP further cross-referenced all eligible establishments and functional units with the agency’s compliance management system to remove: (a) establishments currently under review; (b) establishments currently in a monitoring period pursuant to a conciliation agreement; (c) establishments currently within the exemption period following a closed review; (d) establishments currently pending scheduling for review from a prior scheduling list; and (e) establishments that have an active separate facilities waiver.
In putting together the list, the agency used the following criteria to finalize establishment and corporate management compliance evaluation (CMCE) reviews:
- OFCCP set the minimum employee count to 1,000 at the corporate headquarters;
- OFCCP selected the establishments and CMCEs with the highest employee counts in each district office;
- OFCCP did not include more than four establishments of any parent company; and
- OFCCP selected up to five CMCE reviews per region;
For FAAP reviews, OFCCP selected the four functional units with the highest employee count in each region.
The published methodology also discusses the agency’s intention to coordinate multiple audits. Initially, OFCCP assigned District Office codes and regions to each establishment or unit based on the postal address. Where a parent company has two or more establishments on the scheduling list, OFCCP reassigned these compliance reviews to the same region so that both the agency and the contractor can engage in these reviews in a coordinated manner.
Federal contractors and subcontractors should carefully review the CSAL for facilities and subsidiaries within their organizations and confirm affirmative action plans for those facilities are prepared promptly with extra care. In addition, federal contractors should review the compliance practices at those facilities and log and assess recruitment and outreach practices for year-over-year efficacy.
Companies that believe that they have been included on the CSAL by mistake are advised to contact OFCCP immediately to try to correct the error rather than wait until they receive a scheduling letter. Because the best approach may vary depending on the circumstances, however, this is an issue that should be discussed with legal counsel.
1 OFCCP is still working through its 2021 Construction Scheduling List, with some of the construction audits now proceeding to actual (non-virtual) agency visits to construction sites for inspections and to conduct interviews. At this time, we have no reliable information as to when to expect a new construction scheduling list.