As reported in today’s Federal Register, OFCCP is seeking regulatory authority to:

• Require federal contractors to annually certify they have prepared AAPs via an online interface; and,

• Institute “a secure method” to electronically submit AAPs when contractors are scheduled for an audit.

As we reported nearly a year ago, because OFCCP cannot conduct a compliance review of every federal contractor location every year, OFCCP wants an efficient alternative method to ensure all federal contractors are regularly preparing annual AAPs.  OFCCP’s desire for an annual certification process stems directly from a pre-COVID-19 Government Accountability Office (GAO) criticism that 85% of contractors do not timely submit AAPs within the 30-day deadline.  According to the GAO, that statistic “suggests that OFCCP processes do not ensure that all contractors are complying with their obligation to complete and annually update an AAP.”  Due to the COVID-19 pandemic, that percentage may now be even higher.

The Federal Register notice is short on details.  Instead, OFCCP is soliciting your input regarding, among other topics:

• The frequency of the certification (the proposal is for annual certification);

• The type of information and level of detail to be required in the certification;

• Whether certification would be practically useful to OFCCP in service of its mission, as compared to the burden on contractors; and,

• Whether the estimated burden on contractors (36 minutes to certify) is accurate.

The notice does appear to propose that contractors upload AAPs annually as part of the certification process, a possibility floated in the GAO’s 2016 report.

Contractors can submit their input to OFCCP on or before November 13, 2020 via the federal e-Rulemaking portal at https://www.regulations.gov/ .

As we receive more detail and assess the possibilities for the certification process, we will make sure to bring you our insights and updates.