All existing supply or service contractors (at the prime and subcontract level) that meet the OFCCP’s jurisdictional thresholds must register and certify compliance with the AAP requirements. New contractors 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). At present, the registration and certification obligation does not extend to contractors performing on only construction contracts.
With a June 30, 2022 deadline looming, covered federal contractors and subcontractors have just one week remaining to register and submit required affirmative action certifications on the new Contractor Portal created by the Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”). Announced by OFCCP in December 2021, the Contractor Portal requires covered federal prime contractors and subcontractors to both register and submit a formal certification by June 30, 2022 as to whether they have developed and maintained an Affirmative Action Program (“AAP”) in accordance with all applicable OFCCP requirements. Certifications will be required on an annual basis in the portal thereafter.
Every contractor is required to certify that they have developed and maintained AAPs pursuant to all of the laws OFCCP enforces under which the contractor is covered: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. For each establishment or functional/business unit, the certification requires the contractor to select one of the below options:
- Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit;
- Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable; or
- Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.
When a contractor selects a response to the certification statement through the portal, the contractor is selecting the response that reflects their AAP status, as of the date they certify. It is widely expected that OFCCP will utilize certification responses to conduct more – and more targeted – audit, compliance review, and enforcement efforts. Nonetheless, certification accuracy remains a paramount consideration for contractors, as a knowingly false certification of compliance with AAP requirements could raise the specter of the civil False Claims Act.
The OFCCP Contractor Portal User Guide provides additional information regarding the registration and certification process and the platform’s functionality.