By Amanda Bowman, Rosemary Cox, Bill Osterndorf
On March 31, 2022, OFCCP opened the certification portion of the agency’s new Contractor Portal. OFCCP developed the Contractor Portal as a means to ensure that federal contractors and subcontractors are meeting their obligations to develop and maintain affirmative action programs.
While contractors have been able to register in the Contractor Portal since February 1, 2022, March 31st was the first day contractors could actually certify their compliance. For more background on the Contractor Portal and the registration process, see our February blog.
What We Learned at OFCCP’s Certification Webinar
OFCCP held a webinar on March 31st to discuss the certification process. OFCCP provided background on certification and shared several new resources that are now available on the portal landing page. These include:
- A one-page guide to certification
- New Frequently Asked Questions (FAQs) on certification
- An updated User Guide for the Contractor Portal
During the webinar, OFCCP walked through the certification process in real time. For each establishment that has been created as part of the registration process, users will be asked to select one of the following three choices:
- Entity has developed and maintained affirmative action programs at each establishment, as applicable, and 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.
- Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.
Users will be able to select multiple establishments to bulk certify or certify each establishment individually. OFCCP noted that contractors can download an establishment list, and contractors can de-certify and recertify an establishment if needed.
Clarifications for Contractors With Establishment-based AAPs
"For those contractors who do not prepare an AAP for an establishment with fewer than 50 employees but includes those employees in another establishment's AAP pursuant to 60-1.2d., the certification will only be for the establishment with the AAP."
Contractors that have a functional AAP agreement with OFCCP should be certifying the units found in the agreement rather than its establishments that have 50 or more employees.
Timeline
Current federal contractors and subcontractors will have through June 30, 2022, to certify for each of their establishments. The portal will not close on June 30, however, as new federal contractors and subcontractors will be required to certify within 90 days after their affirmative action plans have been developed.
As a reminder, users are indicating they have “developed and maintained [their] affirmative action programs” as of the date that they are certifying within the portal. Contractors should consider the start date of their AAPs when certifying as there may be a strategic time within the certification period to complete the process. For example, a contractor that has AAPs with a May 1 start date should probably certify by April 30.
Additional Considerations
Contractors should remember that they are certifying that they are meeting all of OFCCP’s affirmative action program requirements. These requirements go beyond preparing written narratives and certain quantitative reports. For example, the affirmative action program provisions of Executive Order 11246 require an evaluation of compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities.
The contractor portal is likely to affect OFCCP’s willingness to provide extensions to organizations going through an OFCCP compliance review. On March 31, 2022, OFCCP recently released Directive 2022-02. This new directive specifically repealed Directive 2018-08, which afforded extensions for submitting information at the start of a compliance review. Given that contractors are now certifying that their AAPs are complete, extensions are not likely to be easily granted by OFCCP.
View a special webinar on April 19, 2022, presented by DCI President David Cohen and Former OFCCP Director Craig Leen on the Contractor Portal.
