The Office of Management and Budget recently gave the Office of Federal Contract Compliance Programs (OFCCP) the green light to roll out its new Affirmative Action Verification Interface (AAP-VI).
The new AAP-VI system portal, although not yet active on OFCCP’s website, will provide a secure web-based interface for federal contractors to submit their affirmative action plans (AAPs).
Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), and Section 503 of the Rehabilitation Act of 1973 require federal contractors to take proactive steps in recruiting, hiring, training, and promotions to ensure equal employment opportunities in the workplace. As a result, contractors that meet jurisdictional thresholds must develop a written AAP and monitor and adjust AAP compliance efforts on an ongoing basis. For non-construction employers, the threshold requirement is generally 50 or more employees and at least one federal contract of $50,000 or more.
AAP-VI Addresses Enforcement Gap
The new AAP-VI reporting system responds to a 2016 Government Accountability Office (GAO) report that criticized OFCCP’s AAP compliance shortcomings. Until now, only federal contractors who were subject to an OFCCP audit were required to submit their AAPs via mail or email. There was also no requirement for contractors to annually certify as to their AAP compliance.
Because less than 1% of federal contractors are audited by OFCCP on an annual basis, many federal contractors who fell short of their AAP compliance obligations were able to avoid enforcement action. Ironically, failing to have a written AAP was one of the top three violations committed by federal contractors that were subject to audits. As a result, the GAO report specifically recommended that OFCCP develop a new mechanism for regularly monitoring federal contractors’ AAP compliance, including contractor certification of annual AAP updates.
New AAP-VI Reporting Requirements
For now, only federal contractor locations identified by OFCCP for audit will be required to upload a copy of their full affirmative action plans via the AAP-VI system. However, ALL contractors will likely be required to certify that they have developed or updated a compliant AAP on an annual basis. Although OFCCP has not yet stated whether such certification will be mandatory, the language in its recently published user guide indicates that certification of AAP compliance will be required as part of its System for Award Management (SAM) questions and declarations.
In addition, OFCCP’s Directive 2018-07, which sets forth OFCCP’s plans and objectives for the AAP-VI program, indicates that the annual certification requirements “could later take the form of annual submission of AAPs to OFCCP for review.”
The directive also specifies that failure to develop and update AAPs will likely be considered as a criterion in scheduling compliance evaluations, as not developing and maintaining AAPs “indicates a lack of commitment to comply with equal employment opportunity and anti-discrimination obligations.” As a result, federal contractors who fail to comply with AAP-VI reporting obligations may be more likely to be scheduled for a compliance audit.
How to Prepare for AAP-VI Reporting
OFCCP has not yet indicated a “go live” date for the AAP-VI, but OMB’s approval means that federal contractors can expect the requirements to soon be forthcoming.
Existing contractors will have 90 days to comply with the certification requirement once it takes effect. New contractors or existing contractors who are newly subject to AAP requirements will have 90 days after developing their AAPs to certify. Because those who are newly subject to AAP requirements have 120 days to develop their AAPs, this means they would have a total of 210 days to develop and file their AAPs with OFCCP.
Federal contractors and subcontractors should take the following steps now to ensure AAP-VI compliance:
- Assess current operations (including differences among operations in various locations) to determine if current contracts or subcontracts require an AAP.
- Develop an AAP if one is required but not currently in place.
- Audit existing AAPs to remedy compliance gaps.
- Ensure that documentation of AAP efforts is optimized for OFCCP’s new technology and verification requirements.
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