On December 2, 2021, OFCCP announced that its Affirmative Action Program Verification Interface (also referred to as the Contractor Portal) is now operative. Through the Contractor Portal, federal government supply and service contractors and subcontractors will be required to certify on an annual basis that they have developed and maintained affirmative action plans (AAP) for each of their establishments or functional units. Construction contractors are not required to certify compliance or register for the Contractor Portal. 

Beginning February 1, 2022, contractors will be able to register their companies through the Portal. The AAP certification period will then begin on March 31, 2022, and contractors and subcontractors must complete the certification by June 30, 2022.  OFCCP has issued FAQs on the Portal and will also be issuing a user guide in the upcoming months to provide contractors with additional information regarding registration and the certification process. The certification requirement applies to both establishment-based and functional affirmative action plans (FAApPs).

Although it is not clear whether a contractor’s failure to make the required certification will flag the contractor to undergo an OFCCP compliance evaluation, the certification requirement appears to raise the stakes for contractors and subcontractors to ensure their compliance with the affirmative action plan requirement.  Some companies doing business with the federal government or with a government contractor may not realize that they have a federal government contract or subcontract that is subject to OFCCP’s equal opportunity clause and the AAP requirement.  Notably, OFCCP’s regulations provide that the equal opportunity clause is deemed to be included in all covered contracts or subcontracts, regardless of whether the clause is explicitly incorporated in the actual contract document.  Accordingly, contractors potentially subject to the AAP requirement (generally, those with federal contracts or subcontracts exceeding $50,000 in value and 50 or more employees) should carefully consider whether they are required to implement an AAP, and do so, ahead of the upcoming certification requirement.