OFCCP Proposes Revised Construction Scheduling Letter

By: Evan Szarenski

As previously reported on the DCI Blog, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is in the process of updating its scheduling letter for construction reviews. On June 17, 2024, OFCCP moved closer to implementing these changes when it published a required notice in the Federal Register. The notice provides the public with 30 days to comment on proposed revisions to the construction scheduling letter. This proposal will not impact the scheduling letter used for supply & service (that is, non-construction) compliance reviews. 

OFCCP made the following substantive changes to its previous proposed revision. OFCCP is: 

• Clarifying that contractors must submit employee-level payroll data for “employees involved in the supervision, inspection, and other onsite functions incidental to the actual construction” in addition to construction trade employees; 
• Requiring records showing that the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” and the “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” are included in construction subcontracts;
• Clarifying that contractors must submit information on both technology-based selection procedures (including artificial intelligence) and non-technology-based selection procedures; and 
• Requiring documentation of outreach efforts for individuals with disabilities and protected veterans for the first six months of the current AAP year if the contractor is 6 or months into their current AAP year on the date of receiving the scheduling letter. 
  

As part of this renewal process, OFCCP is also requesting authority to continue the use of the Notification of Construction Contract Award Portal (NCAP) form. The NCAP form is completed by federal contracting officers and by representatives of federal contractors to provide information on federal construction contractors and subcontractors receiving more than $10,000 in federal money. OFCCP is proposing the following changes for the NCAP form: 

• A request for information on whether the contract at issue is a prime contract or a subcontract. 
• A request for the NAICS code for the employer.
• An inquiry about whether the NCAP form is being completed for a nonconstruction company subject to OFCCP’s construction regulations. 
• A note stating that a contractor can inform OFCCP that its Unique Entity ID (UEI) or Data Universal Numbering System (DUNS) Number are unavailable if the employer does not have a UEI or DUNS number. 
• A request for the Employer Identification Number. 

The public has until July 17, 2024, to submit comments on OFCCP’s revised proposal. Comments can be submitted on the Office of Information and Regulatory Affairs (OIRA) website. Once the comment period closes, OIRA will begin its review of the proposal and comments and either approve (possibly with additional changes) or deny the proposal. 

DCI will continue to monitor the status of this proposal and provide updates.