With the 2022 EEO-1 deadline having passed on May 17, albeit with a “grace period” extension until June 23, 2022, yet another deadline looms for federal supply and service contractors and subcontractors: the June 30, 2022 deadline for certifying compliance with your affirmative action obligations.

Some background

Based on an independent nonpartisan study showing that upward of 80% of all federal contractors and subcontractors randomly selected for compliance reviews by the Office of Federal Contracts Compliance Programs (OFCCP) requested extensions of time — often multiple extensions — to submit their affirmative action plans (AAPs) for audit, the OFCCP concluded that most federal contractors and subcontractors were not complying with their obligations to establish and maintain up-to-date AAPs. Thus, to “encourage” federal contractors and subcontractors to keep up with their AAP obligations, the OFCCP introduced the OFCCP Contractor Portal, on which, commencing this year, federal contractors and subcontractors must certify, under penalty of perjury, that they have established and maintained an up-to-date AAP for each covered contractor or subcontractor establishment (location).

What you need to do if you haven’t already certified

The first step in the certification process is to register your company and all of its establishments on the OFCCP Contractor Portal. Registration is based on your 2018 EEO-1 report. Thus, you also must indicate whether any of the establishments included in your 2018 EEO-1 report have closed or been sold and add any new establishments you have opened or acquired since 2018. Once registered, federal contractors and subcontractors have until June 30, 2022, to certify their compliance. Compliance is based on the status of your AAP as of the date you certify. Thus, if your “AAP year” is the 12-month period ending June 30 and you have an up-to-date AAP, you may certify that you are in compliance anytime through June 30, 2022, even though your plan will expire and need to be updated for the period beginning July 1, 2022. On the other hand, if your plan year ends May 31 and you have not yet updated your plan and did not certify your compliance before May 31, 2022, you will need to update your plan before the June 30, 2022 deadline.

The consequences of failing to certify 

The OFCCP has indicated that federal contractors and subcontractors who fail to register and/or certify their compliance will be audited. All federal contractors are listed in the Federal Procurement Data System, and the OFCCP relies on a variety of other sources to identify federal subcontractors. Thus, if you are a federal contractor or subcontractor, the OFCCP knows who you are. Whether the agency has the resources to audit all contractors and subcontractors who fail to certify is another question, but we do not recommend taking the risk.