Timetable for OFCCP Contractor Portal Is Set, but Questions Remain

​Federal contractors can start getting their affirmative action programs (AAPs) in order prior to the Office of Federal Contract Compliance Programs' (OFCCP's) June 30 deadline to certify their AAP status. But many questions remain about the OFCCP Contractor Portal.

The timetable has been set by the OFCCP as follows:

• Feb. 1: Registration opens. Federal contractors will be able to visit and register their company on the portal and validate that their information is correct.
• March 31: The certification period begins. Federal contractors will be able to certify the status of their AAPs for each establishment and functional unit, as applicable.
• June 30: The certification period ends.

"It is significant that the OFCCP is giving contractors time to get their plans and affirmative action programs in place," said Joanna Colosimo, SHRM-SCP, vice president of Workforce Equity & Compliance Strategy, principal consultant with DCI Consulting Group in Washington, D.C. "It also appears to be a measured plan. There is time for organizations to register in the system, and there is a three-month period in which they can certify."

The portal will require contractors to be timely in the completion of their annual AAPs, said Beth Ronnenburg, SHRM-SCP, president of Berkshire Associates in Columbia, Md.

It's likely the OFCCP will base future contractor audit scheduling on certifications, focusing on contractors that don't register or that certify they don't have AAPs in place, said Craig Leen, an attorney with K&L Gates in Washington, D.C., and former director of the OFCCP. "I also see from the fall 2021 regulatory agenda that the OFCCP is likely to be focusing on subcontractors, as it says they will be proposing that supply and service contractors provide notice to the agency of subcontracts."

Ronnenburg said that in recent years the same contractors have been subject to multiple reviews year after year, even though they recently were found to be in compliance. If the portal means the OFCCP focuses on contractors that appear to be noncompliant, she noted, "annual certification will be good for contractors that are already compliant and regularly preparing their AAPs."

Technical Compliance

Colosimo said that contractors preparing to use the Contractor Portal should have the totality of their AAPs in place.

She said this includes not only the development of narrative and statistical AAP reports for all establishments and functional AAPs, but also:

• Posting jobs with the appropriate state employment offices.
• Ensuring flow-down clauses are in subcontracts and purchase orders.
• Ensuring notifications and equal employment opportunity (EEO) statements have been posted and communicated.
• Identifying problem areas, including an evaluation of the organization's compensation system.
• Having appropriate posters in place.

Expect the OFCCP to continue increasing its focus on compensation during compliance reviews, Ronnenburg said.

Contractors should also prepare for the possibility of increased pay-reporting requirements, either from the OFCCP, the Equal Employment Opportunity Commission, state governments or all of the above, she added.

Remaining Questions

Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va., said what remains unknown about the Contractor Portal includes the following:

• Is the OFCCP going to prepopulate the portal with data from EEO-1 feeds?
• If a contractor prepares AAPs on a functional basis, will the OFCCP have prepopulated with that information?
• Who will be able to see which organizations have certified? Is the database visible only to OFCCP staff or will the list of certified contractors be public and searchable? Will prime contractors be expected to review the list to confirm that subcontractors have certified?
• Is the OFCCP going to do any type of annual reconciliation to ensure that it has received certifications from all government contractors that were supposed to have certified? How is the OFCCP going to notify organizations from which the OFCCP was expecting a certification but didn't get one? Will the OFCCP afford organizations due process to cure the lapse? How much time will organizations have to cure a bona-fide missing certification?
• Construction organizations that receive federal funding through the states—typical of a federally assisted construction contractor—do not prepare AAPs but file EEO-1 forms and self-identify as government contractors on those forms. Will their data be imported into the portal? What is the OFCCP's certification expectation from them? Will there be any pre-emptive process to allow an organization to remove itself from the certification database for good cause? Is there a way to pre-empt a notice from the OFCCP when an organization that filed EEO-1s no longer is the certifying entity due to such events as mergers, acquisitions or business closures?
• The user guide, which the OFCCP originally released then withdrew and hasn't rereleased, had two different certification statements. The first certification asked all government contractors to choose one of three assertions: The AAP has been developed and maintained; the program hasn't been developed; or the program has not been developed within 120 days because the entity just became a federal contractor. The second certification required the organization to certify that once it pressed the submit button, it wouldn't change its AAP data analysis. It is unclear whether the second certification was intended to apply only to organizations selected for a compliance review or to all organizations.
• The OFCCP is required under the U.S. Constitution to select employers for audit using a neutral, random selection process. If the OFCCP uses the database to select employers that have not certified or that certified they don't have AAPs in place, is that still a neutral audit scheduling process?

"There will be a focus on EEO-1 establishment and reporting structures and single-entity determinations for large, complex organizations with the same parent company or constant mergers, acquisitions and spinoffs," Colosimo said. ''This process may get complex for colleges and universities that are subject to OFCCP jurisdiction but do not have EEO-1 filings."