OFCCP Will Require Annual AAP Verification by Federal Contractors

The Office of Federal Contract Compliance Programs has announced the creation of an online contractor portal through which service and supply (but not construction) contractors and subcontractors: (1) are required to annually certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit; and (2) must submit their AAPs during compliance evaluations by the OFCCP. Portal registration opens on February 1, 2022, and contractors/subcontractors should submit the required certification between March 31 and June 30, 2022.

We note that, while the OFCCP maintains that it has the authority to establish the certification and submission requirements, some legal commentators question that authority. Nonetheless, the Government Services Administration (“GSA”) does have the authority to require contractors to certify compliance with the AAP requirements at the time of their bid. In addition, OFCCP has asserted that those who do not certify or who state that they have not developed the required AAP may be more likely to be selected for a compliance evaluation, and may even be debarred. Employers will need to choose whether to comply with the OFCCP’s requirements, or not on the grounds that such requirements are not enforceable. What they must not do, however, is falsely certify that they are in compliance if they are not. That is a criminal and civil offense subject to serious penalties.