OFCCP Contractor Portal Open for Registration

On February 1, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) officially opened up its Contractor Portal. Federal contractors and subcontractors may now begin registering in preparation for certifying compliance with their affirmative action plan (“AAP”) obligations (see December 3 newsletter article).  Note that contractors cannot certify compliance just yet, but instead must wait until after March 31, 2022.  The deadline for certification is June 30, 2022.

Purpose of Contractor Portal

As a refresher, the OFCCP intends to use the online Portal for two purposes:

1. For covered federal contractors and subcontractors to certify, on an annual basis, whether they have developed and maintained an AAP for each establishment.
2. For covered contractors to securely submit their AAPs (and other requested information) to the OFCCP during compliance evaluations (aka, “audits”).

Who Must Comply

Because these obligations relate to the preparation of AAPs, the reporting obligation only applies to “supply and service” federal contractors/subcontractors who have 50 or more employees, and hold a federal contract/subcontract in excess of $50,000 (for gender/race obligations and disability obligations) or $150,000 (for veteran obligations).  For this reason, if an organization is considered a “federal contractor” for other reasons (such as related to the (stalled) Federal Contractor Vaccine Mandate), but does not otherwise have to comply with the affirmative action laws, these obligations are inapplicable.  Construction contractors also are exempted from the certification requirement.

Registration

On February 1, 2022, the OFCCP presented a webinar which walked contractors through the registration process.  The OFCCP simultaneously released a Federal Contractor User Guide with step-by-step instructions on how to register on the portal, and a FAQ document.  These resources specifically address how to add Parent Company information, add separate Establishments, establish a primary “Admin User” relative to the Company’s overall access, as well as assign other “Non-Admin Users.”

Additionally, for companies with multiple establishments, the OFCCP’s FAQs include several questions on “Multiple User Functionality,” and emphasize that the initial user who registers for the Contractor Portal will, by default, be the “Admin User” who is responsible for granting access to other users on behalf of the Company.  No other user will be able to access the portal without the Admin User first granting access.

The OFCCP “strongly recommends” that contractors start registering as soon as possible.  However, given the possibility for challenge to this requirement, which did not go through the usual regulatory hurdles typical of new regulations, contractors may want to wait until closer to when the certification window opens on March 31, 2022 before registering.  In this way, the contractor would not provide the OFCCP with access to its contact information and/or admit its potential status as a contractor prematurely. 

Certification

While the OFCCP’s webinar did not cover the certification requirement in significant detail, the speakers did clarify that contractors do not need to move up their AAP plan dates to comply with the certification requirements.  Rather, a contractor must certify that it has a current AAP relative to its specific plan date.  Therefore, in most cases, whether the contractor certifies compliance related to its 2021 AAP or its 2022 AAP will depend upon when the contractor submits the certification.

• Example 1: Let’s assume a contractor’s plan date begins on June 1, 2022.  If the contractor submits the certification on May 1, 2022, the contractor would be certifying that its 2021 AAP is current.  If, however, the contractor waits until June 15, 2022 to certify, it would only be able to certify compliance if its 2022 AAP is complete, as it is after the plan date. 
• Example 2: Let’s assume a contractor’s plan date begins on January 1, 2022.  Because the plan date has already passed, the contractor must ensure it completes its 2022 AAP before certifying. 
• Example 3: Let’s assume a contractor’s plan date begins on August 1, 2022.  In that case, the contractor would certify that its 2021 AAP is current, as its 2022 plan would not come due during the certification window.

Needless to say, the certification requirement makes it all the more important to remain current on your AAPs.  For those clients who use Baird Holm to prepare their AAPs, we encourage you to provide us with your data as soon as possible to ensure you can comply with this new certification obligation.

We will keep you updated on further developments as we get closer to the certification window.