The White House Office of Management and Budget (OMB) has finally approved the “Affirmative Action Program Verification Interface” (AAP-VI) for use by the Office of Federal Contract Compliance Programs (OFCCP).
In response to a critical 2016 report from the Government Accountability Office (GAO) regarding the OFCCP’s enforcement practices, the agency first sought approval in September 2020 for “an annual Affirmative Action Program online certification process for federal contractors and for a secure method for federal contractors to submit AAPs electronically to OFCCP when they are scheduled for a compliance evaluation.”
The AAP-VI is the agency’s newly-developed online platform/portal for this purpose, but it’s capabilities are somewhat of a mystery. It was developed on a Drupal open source content management platform to integrate with the OFCCP’s new case management system (also built on a Drupal platform). While the OFCCP considered requiring all qualifying federal contractors to upload AAPs annually regardless of whether or not an establishment has been scheduled for an audit, the agency ultimately backed away from that proposal. But many in the industry strongly suspect that is the ultimate goal of the new platform and it is only a matter of time before the OFCCP takes that inevitable next step (see “What’s Next” below for more).
As things stand, the AAP-VI will initially be used to allow federal contractor employers to “certify” or “verify” (depending on the OFCCP document and when it was written) whether and to what extent their organizations are in compliance with the OFCCP’s AAP requirements.
The OFCCP plans to identify federal contractor employer establishments that are likely required to prepare AAPs and send letters to these organizations inviting them to verify through the AAP-VI. The agency will also post a notice on its website with a link to the AAP-VI site (which is actually hosted under the larger Department of Labor domain). The OFCCP has yet to announce when contractors will be required to start verifying their AAPs.
The AAP-VI will also become the only way to submit materials to the OFCCP in an audit, though current means of submission will likely still be made available in the event of technical difficulties. So far, the OFCCP has only indicated that the AAP-VI will be used by contractors to upload their “AAPs” for a desk audit submission. It is unclear whether or not that includes the 22 additional items requested by the Executive Order 11246 OFCCP Scheduling Letter or whether or not the OFCCP will require contractors to submit materials in response to follow up questions and requests via the AAP-VI.
Most predict a “slow roll-out” in which the OFCCP will first require contractors to use AAP-VI to upload AAPs, then expanding to use AAP-VI to upload the entire desk audit submission, and finally expanding use to all exchanges of documents, data, and information in an audit, likely including secure messaging in place of email. Such a roll-out would have the dual benefit of more slowly acclimating the contracting community to the new platform and more slowly stress-testing the platform in a live environment to ensure it can handle the workload.
Note that the OFCCP’s Supporting Statement declares, “[T]he requirement to submit AAPs through the portal during compliance evaluations will not be implemented until the [scheduling] letters have been updated and approved by OMB,” in order to provide contractors with additional time to prepare to submit materials through the new portal and to “clarify the method of AAP submission for compliance evaluations.” Updating the OFCCP’s Scheduling Letters and getting those updates approved by OMB is not a quick process, however. The earliest the OFCCP is likely to implement this requirement would be sometime in 2022.
Other Details of Note
Many are noting that the AAP-VI was approved “with changes,” but the only change is in the OFCCP’s burden estimate. No changes were made to the requirements or function of the AAP-VI itself.
The OFCCP also submitted two user manuals for the AAP-VI. One is for end-users (contractors) and shows screen shots of the actual platform and its current functionality, along with some other mildly interesting tidbits.
Oddly, the OFCCP also submitted (and published) an “admin” user manual for AAP-VI system administrators within the agency. Whether or not any information in that document is useful to hackers remains to be seen (the Drupal platform is known for its tight security) but it does provide some insight into how the OFCCP is relying on EEO-1 reporting information for company structure and establishments, and how the AAP-VI will be able to “import” EEO-1 company data (company names, subsidiaries, establishments, etc., not demographic data).
Anyone telling you they know what the OFCCP will do next likely also has a bridge in Brooklyn for sale that they’d like to show you. That said, we can look at what the agency has indicated and what is reasonably possible.
Most agree that the OFCCP would very much like to require contractors to submit AAPs annually to the agency regardless of whether or not the contractor has been selected or scheduled for audit. However, the OFCCP’s current regulations do not clearly provide that authority. For the OFCCP to implement such a requirement, the agency would likely need to update its implementing regulations.
Updating regulations is no small task, so if the OFCCP is going to bother updating the regulations implementing Executive Order 11246, this is unlikely to be the only update the agency will try to make. Such a process is a years-long undertaking.
The troubles with an annual AAP submission requirement are only compounded when one considers the myriad forms and formats AAPs can take. The OFCCP’s regulations generally provide required elements for AAPs and supporting reports and analyses, but stop short of requiring strict formatting and/or file formats. Either the AAP-VI would need to be designed to accept any form or format for AAPs, or the agency will need to further “standardize” the AAP reports (also likely requiring regulatory updates).
So while the dream of across-the-board, annual AAP submission seems closer to realization than ever, there are still significant hurdles that are not likely to be cleared any time soon. Much more likely is the annual submission of a standardized AAP summary.
AAP Summaries Are Already Required
41 C.F.R. § 60-2.31 states in full: “The affirmative action program must be summarized and updated annually. The program summary must be prepared in a format which will be prescribed by the Director and published in the Federal Register as a notice before becoming effective. Contractors and subcontractors must submit the program summary to OFCCP each year on the anniversary date of the affirmative action program.” But the OFCCP has never really acted on this provision.
In addition to developing the summary format and publishing that in the Federal Register, the OFCCP will likely also need to get the new AAP summary approved by OMB. But the submission requirement itself is already baked into the regulations. All it needs is to be “activated.” This is the most likely path of least resistance open to the OFCCP.
If you have questions about this or any other OFCCP matter, feel free to contact us at BCGi@Biddle.com.