By June 30, 2022, federal supply and service contractors with 100 or more employees are required to have registered and certified their establishment and maintenance of their affirmative action programs (AAPs). Although unresolved questions remain, the agency is finally answering some of the questions contractors have had since the portal opened.
Registration Issues
As a result of the pandemic, the most recent EEO-1 reports the Office of Federal Contract Compliance Programs (OFCCP) could use for its Contractor Portal was 2018 data filed in 2019. Contractors have struggled with whether to use the 2018 data or to update the data, which will require contractors to manually upload their establishments. In response to this question, the OFCCP provided the following FAQ answer:
- All supply and service contractors and subcontractors that fall under OFCCP’s jurisdiction should review and, if necessary, update their Parent Company Profile and information on individual establishments and functional/business units. This may include adding, updating, or closing establishments or functional/business units.
In addition, while the agency had initially indicated contractors could automatically upload their 2018 EEO-1 Report, most contractors have not been able to automatically upload their data. This has especially been a problem for contractors with Functional Affirmative Action Plans (FAAPs).
On Monday, May 16, however, the OFCCP announced that contractors with 100 or more establishments or functional/business units may now request to have establishments or functional/business units uploaded or modified in bulk by using the Bulk Upload/Modification Template as follows:
- After registering the Parent Company in the Contractor Portal, a contractor should update records by modifying or adding applicable establishments or functional/business units to the Parent Company profile. OFCCP’s bulk upload/modification option for contractors with 100 or more establishments or functional/business units will facilitate the records update process. These contractors can request to have establishments or functional/business units uploaded/modified in bulk by using the Bulk Upload/Modification Template.
Certification Issues
Since the contractor portal was announced, contractors have been asking the OFCCP for clarification on what exactly they were certifying. When the agency issued Directive 2022-02, it provided in footnote 5, “For further details on complete AAP components and obligations, see 41 CFR part 60-2, subpart B; 41 CFR part 60-300, subpart C; and 41 CFR part 60-741, subpart C.”
Subsequently, the agency published the following answer to FAQ 3 in response to the question as to what contractors are certifying:
A contractor is certifying whether it has developed and maintained the following AAP components:
- The Executive Order 11246 AAP contents, including required annual analyses, described in Subpart B or 41 CFR 60-2;The VEVRAA AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-300; and
- The Section 503 AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-741.
Another question has been whether parent companies are required to certify their compliance with the above requirements. If a parent company has checked that it is a federal contractor on its EEO-1 Report, the agency will consider the entire organization to be covered by its obligations unless the parent or noncovered entity has a separate facility waiver or does not meet the agency’s single entity test. Therefore, contractors that have nonfederal contractor entities should review their options with legal counsel before registering or certifying.
Final Thoughts On Contractor Portal
OFCCP Director Jenny Yang has said contractors that have not certified under the Contractor Portal will be more likely to be on the next Corporate Scheduling Announcement List (CSAL). As a result, contractors need to carefully consider how to register and certify their compliance in the Contractor Portal by June 30, 2022.
H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com.