By Evan Szarenski
On Friday, May 27, the Office of Federal Contract Compliance Programs (OFCCP) published a new proposed Functional Affirmative Action Programs (FAAPs) Directive for public comment. OFCCP is proposing to make several changes to the FAAP program moving forward.
What is a FAAP?
Federal contractors are generally required to develop establishment-based Affirmative Action Programs (AAPs). However, a federal contractor may wish to create AAPs by functional or business unit (for a unit such as Sales or Research and Development) 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.
Proposed Changes to the FAAP Directive
OFCCP’s proposed new FAAP directive makes several substantive changes to the directive currently in force (DIR 2013-01 Revision 2).
- Under the new 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.
- The new version of the directive states that after OFCCP approves a FAAP agreement, the contractor must notify OFCCP once it implements the FAAP agreements.
- Under the new version of the directive, the contractor must submit data regarding the functional unit in MS 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 current version of the FAAP Directive requires OFCCP to make a decision on a FAAP request within 60 days. The proposed version of the directive states that OFCCP will “generally” make a decision within 60 days.
- The current version of the FAAP Directive states that OFCCP will only use information submitted as part of the FAAP application in considering the application. The proposed version removes that restriction.
- The proposed version of the FAAP Directive removes the requirement that functional units operate autonomously in the ordinary course of business.
- The current version of the directive states that OFCCP can conduct complaint investigations or compliance evaluations of a functional unit that has undergone review if there was “credible” third-party evidence. The proposed version only requires “specific” evidence.
- The current version of the directive only requires the contractor to provide information on a contract of $50,000 or more. The proposed version requires the contractor to provide information on a contract that is $150,000 or more, if the contractor has one.
Members of the public have until June 27, 2022 to comment on the proposed directive. After the comment period closes, the Office of Management and Budget (OMB) will review comments on the proposed version of the directive. OMB may approve the revised version, with or without changes, or disapprove this version. The current version of the directive is only approved through June 30, 2022. If OMB does not complete its review by then, it may extend the current directive. Should OMB fail to take any action by June 30, federal contractors will be unable to rely on Directive 2013-01 to request the use of functional affirmative action programs.