The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is currently seeking renewal for the authority to require federal contractors to annually “certify” or “verify” their AAP compliance through the agency’s “Contractor Portal.” Authorization is currently set to expire in August, 2024 and is typically granted for three-year periods.
The agency is seeking renewal with “no substantive changes,” but that does not mean no changes. The agency is proposing to update the Contractor Portal to require users to enter the “Unique Entity ID” (UEI) for the parent company and each establishment. As of April 4, 2022, organizations registering on Sam.gov are assigned a UEI as part of the registration process. The UEI will replace the Data Universal Numbering System (DUNS) number used to date.
The “Affirmative Action Program Verification Initiative” (AAP-VI) is not actually a requirement you will find when combing through the agency’s regulations. It is an “information collection” (survey) that relies on the broader regulatory authority of federal agencies to collect information from the public and is subject to specific rules found primarily in the Paperwork Reduction Act and the Administrative Procedures Act.
Federal agencies are generally free to solicit (ask for) information from the public willy-nilly, but if they want to require anyone to respond to questions they intend to pose to more than 10 people, they have to get authorization from a division of the White House Office of Management and Budget, specifically the Office of Information and Regulatory Affairs (OIRA). OIRA generally evaluates the need for the information collection and attempts to balance that need against the burden put on respondents. In other words, OIRA isn’t reviewing underlying policy so much, but whether and to what extent “the juice is worth the squeeze.”
In recent years, the OFCCP has chosen to effectively legislate through information collections and publishing unenforceable sub-regulatory guidance, rather than do the heavy-lifting involved in actually updating the underlying regulations. In doing so, the agency often blurs the lines of its authority, often to the detriment of the federal contracting community. AAP-VI is a prime example.
The OFCCP originally proposed to simply ask contractors whether or not they prepare AAPs as required on the organization level, mirroring what contractors already do in the System for Award Management (SAM) administered by the General Services Administration. But at some point during the proposal process, the agency changed their proposal to ask the compliance question at the establishment level, requiring contractors to verify that they prepare AAPs at each location.
However, the agency did not get permission to require contractors to provide the OFCCP with location information. So they did a sneaky thing.
The OFCCP initially populated the Contractor Portal with location information based on three-year-old EEO-1 data. They still did not have the authority to require contractors to provide information about their AAP locations, however, so they heavily implied that contractors must edit/update the EEO-1 data to match their current AAP structure. The vast majority of the agency’s guidance documents covered how to edit/update this information without ever noting that doing so is not actually required. And the data was so out-of-date that most contractors feared not updating it might constitute providing false information to the federal government and lead to adverse consequences.
BCGi has pointed this out before. Contractors do not have to claim any “ownership” over the EEO-1 data the OFCCP uses to populate the Contractor Portal. Contractors can simply click into each location provided, whether or not that location even exists, and answer “yes,” they prepare AAPs for that location “as applicable.”
If a contractor chooses to edit/update this information, however, they arguably do take “ownership” of that data, and create for themselves an obligation to keep that information up to date going forward.
The OFCCP counted on contractors updating their location data, even though they don’t have to, and it worked. Although never granted the authority to do so, the OFCCP has and continues to build a database of contractor locations. Note that the agency could have simply included this in their information collection request, or through a separate information collection approved by OIRA. The fact that they did not raises questions and alarms.
Other examples abound, such as the creation of new “campus” audits, which the OFCCP is currently trying to implement—not by updating their regulations that spell out the different types of audits the agency can conduct—but by issuing a “Technical Assistance Guide” for higher education contractors and updating the “Scheduling Letter” (another “information collection”) used to initiate audits.
While the OFCCP is currently asking OIRA to re-authorize the AAP-VI program without “substantive” changes, we would very much like it if the OFCCP would clarify exactly what is and is not legally required of contractors.
This is not an unusual ask, by the way. If you have ever looked at a paper VETS-4212 form you will notice that half of the grid used to report veteran employees and hires is grey. That’s because the grey boxes are optional, not required, and the VETS-4212 form and instructions make that clear.
The Contractor Portal does not note that updating location information is optional, either through explicit text or visual cues. And none of the agency’s guidance documents even imply that anything is optional; in fact, they heavily imply that updating location information is legally required and failure to do so could have legal consequences. Notably, the agency does not even clarify for OIRA what elements are required and not, nor have they throughout the AAP-VI authorization process, making it very difficult to determine what exactly OIRA is authorizing when they approve the information collection.
This same agency (OFCCP) will then accuse contractors of “hiding the ball” in audits and otherwise being uncooperative and/or untrustworthy. BCGi respectfully submits that the agency is leading by example here, and should consider setting a better one. Adding disclaimers to the Contractor Portal and the AAP-VI guidance documents noting what is required and what is optional would not constitute a “substantive change” that requires permission from OIRA to implement. But this renewal period nonetheless provides a good opportunity for the agency to do just that, if they want to be honest and transparent. If they want to keep hiding the ball themselves and eroding their own credibility, then no changes are required.
The OFCCP is soliciting public comment on their AAP-VI renewal request. If you are interested in submitting comments you may do so here. Comments are due by Monday, February 12, 2024.