The OFCCP’s New Contractor Portal: Here is What Federal Contractors and Subcontractors Ought to Know | Alston & Bird

Luna Ruth

The Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) both administers and enforces the following three equal employment opportunity laws: (1) Executive Order 11246; (2) Section 503 of the Rehabilitation Act of 1973, as amended; and (3) Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended.[1] These aforementioned laws forbid employment discrimination and mandate that federal contractors implement Affirmative Action Plans (AAPs) that guarantee equal employment opportunities for covered classes.[2] Pursuant to 41 CFR § 60-2.10, “an affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that absent discrimination, over time a contractor’s workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects.”[3]

Executive Order 11246[4] and Section 503 of the Rehabilitation Act of 1973[5] require that certain contractors and subcontractors who maintain a covered contract of $50,000 or more and have 50 or more employees must implement an AAP. Additionally, VEVRAA [6] requires federal contractors with at least 50 employees and contracts of $150,000 or more have an AAP.[7]

In September of 2016, the U.S. Government Accountability Office (GAO) published a study that recommended changes to aspects of OFFCP’s affirmative action compliance evaluations. [8] The study found that approximately 85 percent of evaluated federal contractor establishments had not submitted an AAP within 30 days of the OFCCP’s request.[9] In response to the findings and recommendations in the GAO study, on February 1, 2022, the OFFCP launched the Contractor Portal as a new OFCCP platform. As of March 31, 2022, the Contractor Portal is fully functional and requires covered federal contractors and subcontractors to certify, on an annual basis, whether their establishments are meeting their AAP requirements.[10]

Certification on the Contractor Portal is required for certain service and supply contractors and subcontractors. As noted above, under Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973, contractors with at least 50 employees and at least one contract worth $50,000 or more must have an AAP and certify same on the Contractor Portal. Pursuant to VEVRAA, contractors and subcontractors with at least 50 employees and a contract worth $150,000 or more have an AAP and certify same on the Contractor Portal. Contractors that are only construction contractors, however, are not currently required use the Contractor Portal.[11]

Covered federal contractors and subcontractors should note the current deadline to certify compliance with the annual AAP requirements on the Contractor Portal: June 30, 2022.[12]  Importantly, a Company that begins federal contracting/subcontracting at a later date is required to create an AAP within 120 days of being awarded the covered federal contract and must register and certify compliance within 90 days from the creation of their AAP.[13]  As part of the rollout of this new initiative, the OFCCA website provides a helpful webinar explaining certification using the Contractor Portal and a series of “How-To Videos.”[14]

The Contractor Portal is an important change for federal contractors and subcontractors that is designed to provide the OFCCP with enhanced information to monitor company compliance with AAP requirements.   In addition to enhancing OFCCP’s focus on the timely completion of AAPs, the Contractor Portal may represent a step in the direction of additional AAP or data submission requirements for covered contractors in the future. Also, it is important to note that since a Company is making certain certifications to the Government, those who certify that they have complied with AAP requirements, but have not really done so, are risking potential liability under the False Claims Act or for false statements made under 18 U.S.C. § 1001.

[1] Office of Federal Contract Compliance Programs: Contractor Portal Federal Contractor Briefing Certification Webinar – March 31, 2022

[2] Office of Federal Contract Compliance Programs: Contractor Portal Frequently Asked Questions & Jurisdiction Thresholds and Inflationary Adjustments

[3] Code of Federal Regulations, https://www.ecfr.gov/current/title-41/subtitle-B/chapter-60/part-60-2

[4] Department of Labor, https://www.dol.gov/agencies/ofccp/executive-order-11246

[5] Department of Labor, https://www.dol.gov/agencies/ofccp/section-503

[6] Department of Labor, https://www.dol.gov/agencies/ofccp/vevraa/as-amended

[7] Office of Federal Contract Compliance Programs: Jurisdiction Thresholds and Inflationary Adjustments, https://www.dol.gov/agencies/ofccp/jurisdictional-thresholds#Q2

[8] U.S. Government Accountability Office: Report 16-750 Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance, https://www.gao.gov/products/gao-16-750

[9] Office of Federal Contract Compliance Programs: Contractor Portal Federal Contractor Briefing Certification Webinar – March 31, 2022

[10] Office of Federal Contract Compliance Programs: Contractor Portal, https://www.dol.gov/agencies/ofccp/contractorportal

[11] Office of Federal Contract Compliance Programs: Contractor Portal Frequently Asked Questions, https://www.dol.gov/agencies/ofccp/faqs/contractorportal

[12] Office of Federal Contract Compliance Programs: Contractor Portal, https://www.dol.gov/agencies/ofccp/contractorportal

[13] Office of Federal Contract Compliance Programs: Contractor Portal Frequently Asked Questions, https://www.dol.gov/agencies/ofccp/faqs/contractorportal

[14] Office of Federal Contract Compliance Programs: Contractor Portal, https://www.dol.gov/agencies/ofccp/contractorportal

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