By: Jair Portillo, Evan Szarenski
The Office of Federal Contract Compliance Programs (OFCCP) has released its third revision to Directive 2013-01. This directive provides guidance on entering into a Functional Affirmative Action Plans (FAAP) agreement. The revised directive is effective as of September 21st, 2022. OFCCP has released a bulletin about the revised directive.
Aside from providing an overview on the process of entering a FAAP agreement, much of the directive has remained the same. There are additions to the directive regarding information that must be provided to OFCCP when there are changes to an organization’s structure or to management contracts for a FAAP unit. OFCCP has also clarified that a federal contractor must provide information on a contract of at least $150,000 unless the largest federal contract an organization has is is only $50,000.1
As we reported in DCI’s blog on proposed versions to the FAAP directive:
- The revised version of the FAAP directive states that after OFCCP approves a FAAP agreement, the contractor must notify OFCCP once it implements the FAAP agreements.
- Under the revised version of the FAAP directive, contractors must notify OFCCP of changes to the primary corporate contact for the contractor and to the management of each functional unit at least once per year.
- Under the revised version of the directive, the contractor must submit data regarding the functional unit in Microsoft Excel or CSV format. This data must include the name, address, and email for the managing official for each functional unit as well as the street address and total number of employees at each location within the functional unit.
- The previous version of the FAAP directive required OFCCP to decide on a FAAP request within 60 days. The revised version of the directive states that OFCCP will “generally” decide within 60 days.
- The previous version of the FAAP directive stated that OFCCP could conduct complaint investigations of a functional unit if there was “credible” third-party evidence. The revised version only requires “specific” evidence.
- The previous version of the FAAP directive required a contractor to provide information on a contract of $50,000 or more. The revised version requires the contractor to provide information on a contract of $150,000 or more if the contractor has one.
While federal contractors are generally required to develop affirmative action programs (AAPs) by establishment, an organization may wish to create AAPs by functional or business unit to align its AAPs with its business operations. Federal contractors may submit a request to OFCCP that allow for the development of FAAPs. FAAPs are especially useful where functional units cross several establishments, and where a particular establishment may contain multiple functional units.
With the changes brought on by COVID and the decreasing importance of establishment-based reporting lines, OFCCP has encouraged the use of FAAPs by federal contractors and subcontractors. The revised FAAP directive is intended to provide more clarity to the FAAP application, modification, and renewal process. Federal contractors considering the possibility of a FAAP agreement should contact DCI about the FAAP approval process and the value of using FAAPs or visit our FAAP frequently asked questions resource page.
1 $150,000 is the dollar affirmative action threshold under VEVRAA. $50,000 is the affirmative action threshold under Executive Order 11246 and Section 503. See OFCCP’s infographic regarding jurisdictional thresholds for more on this subject.