On February 1, the Office of Federal Contract Compliance Programs (OFCCP) issued 1,000 corporate scheduling announcement letters (CSALs) to federal contractors, a move that suggests a renewed emphasis on the agency’s enforcement of anti-discrimination and affirmative action employment laws. CSALs are informal notices that precede the official initiation of an OFCCP compliance evaluation, but the issuance of these letters serves as both a sign of OFCCP’s enforcement posture under the Trump administration and a call to action for the contractor establishments that receive these notifications.

OFCCP’s Use of CSALs

CSALs are “courtesy notifications” advising a contractor establishment that it has been selected to undergo a compliance evaluation during the upcoming scheduling cycle. Although they are neither required by law nor a formal part of OFCCP’s compliance audit process, they nonetheless warrant close attention, as they essentially function as an early warning system that an OFCCP audit is incoming.

Typically, CSALs are closely followed by a so-called “thirty-day letter,” which formally initiates an OFCCP compliance evaluation and requires contractors to submit their written Affirmative Action Program for OFCCP review. Consequently, and as discussed further below, contractors in receipt of a CSAL would be wise to take steps as soon as possible to ensure that they are fully prepared for OFCCP scrutiny.

Renewed Emphasis on Enforcement (With Limitations)

This latest round of CSAL notifications is notable for several reasons. Most notably, it comes at a time when there have been substantial questions about the direction and priorities of OFCCP’s enforcement efforts. The OFCCP was without a Director for over a year following the election of President Trump, and relatively few compliance evaluations were initiated in 2017. Indeed, there were some indications that the Trump administration was considering a proposal to eliminate the OFCCP altogether and merge its functions into the EEOC. But with the confirmation of a new Director of OFCCP in December 2017 and now the issuance of 1,000 CSALs, OFCCP appears poised to reassert itself in the enforcement landscape. Consequently, after a period of relative quiet, contractors should expect—and be prepared for—an uptick in OFCCP’s activities.

Yet these indications of increased enforcement activity are accompanied by hints that OFCCP may not wield its authority as aggressively as it has under previous administrations. For instance, in a “CSAL FAQ” document posted online, the OFCCP indicated that it would not issue CSAL notices to more than 10 establishments of a single contractor or to any establishment that had a compliance review closed within the past five years. These limitations are self-imposed—neither is required by law or regulation—and represent a material change from prior OFCCP policy. OFCCP policy was to review no more than 25 establishments of a single contractor under George W. Bush, and it had no formal limit under President Obama. Additionally, OFCCP has long adhered to a two-year “grace period” following the closure of a compliance audit; the new five-year policy is a substantially broader safe-harbor.

Preparing for Audit

Although the nature and scope of OFCCP’s enforcement priorities will be closely watched in the coming months and years, the 1,000 contractor establishments that received CSAL notifications this week face a more immediate concern. With the OFCCP set to be begin issuing formal Scheduling Letters on March 19, recipients of CSALs should immediately consider taking steps to prepare themselves for an audit. Among other things, contractors in receipt of a CSAL would be wise to focus on self-audit efforts to assess and, if necessary, address any potential issues that could emerge during a compliance review. Given recent trends in OFCCP enforcement, these efforts should include both an analysis of existing affirmative action plans and a detailed review of hiring and compensation data.

Once a CSAL arrives in the mail, contractors are unlikely to avoid OFCCP scrutiny.  But by undertaking these self-audit activities proactively and strategically, contractors can better position themselves to address the questions that inevitably will arise during the course of a compliance review.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
  • the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.