The OFCCP has finally launched the new AAP Verification Initiative’s “Contractor Portal.” Sort of.

As of February 1, 2022, contractors can now register in the Contractor Portal, the official name of the tool the OFCCP will use to collect information on contractors’ self-reported compliance status. The agency encourages contractors to register early so that the first round of required verifications can (hopefully) go more smoothly.

Contractors will not actually be able to verify their compliance with the OFCCP’s AAP requirements until March 31, 2022. And existing contractors will have from that date until June 30, 2022 to complete their first verification.

Why register early?

Well, for one, to make sure you can actually get into the system when March 31 rolls around. Users will have to first set up an account through Login.gov and go through an authentication process in order to access the new AAP-VI portal.

The other reason the OFCCP is encouraging contractors to register early is a little dicey. You see, the agency has decided that verifying compliance company-wide, as contractors are required to do now in the System for Award Management (SAM), will not do for OFCCP’s purposes. The agency notes that AAPs are prepared on the “establishment” level, so contractors should have to verify compliance for each of their “establishments.” But there are a couple of problems with that.

The first problem is due to the fact that nowhere in the entirety of the OFCCP’s regulations does the agency actually provide a definition of “establishment.” Instead, they rely on the definition found in the EEO-1 instructions, which brings us to the second problem. When you register in the new Contractor Portal and enter your organization’s Employer Identification Number (EIN), they pre-populate information about your organization, including a list of “establishments” based on EEO-1 reporting data. The trouble is that contractors are not necessarily required to prepare an AAP for each EEO-1 reporting location. In fact, some contractors are not required to file EEO-1 reports at all (we’re looking at you, higher education institutions).

And just to make this that much more frustrating, the agency will be pre-populating organization information from 2018 EEO-1 filings. So it is highly unlikely that the “establishment” structure the OFCCP will present you will have any relation to your current AAP reporting structure.

The agency understands that, which is why the latest version of the Federal Contractor User Guide encourages contractors to update information about their company, including contact information and information regarding establishments, as part of the registration process. That is all fine and dandy, except for the fact that the agency can’t actually require you to update this information or verify/certify that it is correct. They want you to, but they don’t actually have the authority to make you do it.

And if you hold a current Functional Affirmative Action Plan (FAAP) agreement, all this information about establishments might be completely irrelevant if your AAPs are 100% functional and of limited utility if you prepare functional and location-based AAPs. Again, the agency would very much like such users to update the establishment information to reflect their AAP structure, but can’t actually require you to do so. Moreover, even asking might be a violation of the Paperwork Reduction Act considering that the OFCCP is already in possession of that information (because submission is required as part of the FAAP application process and approved FAAP agreement holders are required to keep that information up to date with the agency). Why they are not pre-populating contractor information for FAAP holders using the function and establishment information already in their possession is anyone’s guess.

Is The OFCCP Doing an End-Run?

No, I don’t think they are. The agency will happily imply that you must update your establishment information in order to verify compliance on the establishment level if that will encourage you to update that data. But if they wanted to make that a hard requirement, they should have included that in the Information Collection Request approved by the Office of Management and Budget. But they did not.

However, contractors are being asked to verify that they have “developed and maintained affirmative action programs at each establishment, as applicable” (emphasis added). By answering that question in the affirmative for all of your 2018 EEO-1 reporting locations, even if you know that a particular location does not have its own AAP, you are not providing false information to the federal government so long as you are either not actually covered by the regulations (which can happen if your organization falls in and out of contractor status) or you are sure that all of your employees are included in an AAP somewhere.

Lots of Questions, Few Answers

There are a lot of questions contractors have that the agency has yet to answer. For example, in verifying compliance, are contractors granting the OFCCP jurisdiction to audit them? Are contractors going to be required to sync up their EEO-1 and AAP reporting structures on a going-forward basis? The answer to those and many other hair-raising questions is “No,” but you won’t find many assurances in the assistance materials provided so far, primarily the updated User Guide and further guidance in the form of “Frequently Asked Questions” (FAQs).

Those guidance materials are available on the Contractor Portal landing page, which is not the “coming soon” landing page many people have been checking constantly for updates. The actual landing page is at https://contractorportal.dol.gov/.

Where Can I Get Real Answers?

The good news is that you can join us on Monday, February 14, 2022 for a special BCGi webinar on all things AAP-VI. Biddle Consultant Phil Akroyd and BCGi Director Matt Nusbaum will attempt to clear away all the noise and get to the heart of what you actually need to know and what you actually need to do to comply with this ridiculously confusing new requirement.

Yes, we know it is Valentine’s Day. We chose that date to express our love of the agency. And yes, we know it is the day after the Super Bowl, so plan accordingly and register here. The webinar is free.

And, as always, if you have any questions or concerns, feel free to contact us at BCGi@Biddle.com.