Many employers are receiving invitations to register for the Office of Federal Contract Compliance Program’s (OFCCP) contractor portal. Before doing so, here is what you should know.
Decide Not to Register? Audit May Be Ahead
Those of you who have been following the OFCCP’s news releases may know the contractor portal by its previous name, the Affirmative Action Program Verification Interface, which the agency abbreviated to AAP-VI or AAVI. Without going through the administrative rulemaking process, the agency insists it can require contractors and subcontractors to:
- Register their existence as self-admitted covered federal contractors and subcontractors; and
- Certify they have timely developed an affirmative action plan (AAP) and won’t edit or revise it during the plan year.
The OFCCP has indicated it will use the certification process as an additional factor in selecting contractors for audits: “Contractors [and subcontractors] who fail to self-certify or who state that they have not developed an AAP as required by law would be more likely to be on the scheduling list than contractors that have self-certified.”
Our 2 Main Concerns
Despite the significance of the OFCCP’s threat, we urge contractors and subcontractors to consult with legal counsel about their particular expected benefits or risks of portal registration before entering into the agency’s ecosystem. Here are our top two concerns.
Admission of status. At least in the OFCCP’s eyes, portal registration will serve as an admission of covered contractor/subcontractor status. Of course, most prime contractors can’t and don’t really dispute coverage. But many subcontractors may be creating AAP reports more out of a flow-down contractual obligation and/or because they think it’s a reasonable practice than because they know, with certainty, their products are necessary to complete the government contract.
No edits allowed. Once an entity registers, it will have to certify compliance with creating an AAP, including a pledge it won’t edit the plan during the year. You won’t find the clause mentioned in the OFCCP’s press releases about the portal. If you take a deep dive into the user published in 2021, however, you’ll see the contractor is forced to certify not only (1) its statement about the existence of its APP is correct, i.e., it has a plan, is a new contractor creating a plan, or doesn’t have a plan (and presumably desires an audit ASAP) but (2) “I also understand that I will not be able to edit my Affirmative Action Plan(s) . . . after I click the submit button.”
The OFCCP offers no justification for the requirement that a contractor/subcontractor commit to not correcting an obvious error until the following plan year, should it become aware of one. Instead, the agency seems intent on trapping contractors into their adverse or adverse-appearing findings in the event of an audit. No flexibility appears to be allowed even if an underlying error is discovered or the contractor finds through the use of expert statistical assistance that another analytical model would have been more appropriate to measure a particular job group or activity.
AAPs are already costly and labor-intensive enterprises, and most contractors don’t have labor economists or statisticians in-house (or the desire to locate and pay more than $500 an hour for one). Therefore, most use the “two standard deviations” method as both a “pretty good” statistical tool and the default model they expect an OFCCP investigator would apply.
Portal Opens April 1
Contrary to the OFCCP’s cajoling e-mails, there is no deadline to register in advance of the certification portion of the portal opening on April 1, 2022. The agency has promised additional webinar(s) on the topic at the end of March.
Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama. She can be reached at wbrown@lehrmiddlebrooks.com.