OFCCP Weekly Review: September 2021 | Association of Direct Employers

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Tuesday, August 31, 2021: New emerging AAP delivery portal and OFCCP’s AAP “verification” program: much ado about nothing

  • The two new initiatives lack regulatory authority and both are unenforceable
  • But will entrepreneurs still flock like lemmings?

Fast-fire take-out

What just happened

OFCCP has now received approval (click on all the boxes that interest you on the linked document to bring up this information) of the Office of Management and Budget (“OMB”) following its “Information Collection Review” of the “Information Collection Request” of OFCCP to move forward for three years with two interrelated contractor compliance initiatives. Obama’s OFCCP considered both initiatives, Trump’s OFCCP proposed them to the OMB, and Biden’s OFCCP now hopes to implement them. This is what I will call the “AAP Portal Filing Initiative” and “the AAP Certification Initiative”.

Significantly, OFCCP advised the Office of Information and Regulatory Affairs of the OMB (“OIRA”) in a long April 28, 2021 Supporting statement A that it does NOT intend to solicit the regulatory authority for any of the new initiatives. (Read Supporting Statement A if you want to understand what OFCCP is proposing to do. It’s all in one place … in one long and detailed, but well-written document.) Of course, OFCCP, like all federal agencies , needs independent authority for OMB approval of the two initiatives in accordance with OMB’s Paperwork Reduction Act supervisory authority. The OMB does not give federal agencies the legal authority to act, but simply examines the burden proposed by the agencies on the regulated community and the “information gathering requests” that the agencies propose to the OMB for consideration and approval. The role of the OMB is only to ensure that what federal agencies are proposing is not unduly burdensome on the regulated community and is consistent with the work of other federal agencies and is neither duplicative nor conflicting. with them.

OFCCP useful navigation documents

In addition to reading OFCCP supporting statement A, you may wish to consult two OFCCP “guides” designed to help those responsible for entering data into the OFCCP portal software and making Requested statements described below (among federal contractors and sub-contractors who choose to volunteer to comply with one or both of the OFCCP’s new initiatives.) The two guides are the OFCCP User Guide for Verification Interface (AAP-VI) (26 pages) and OFCCP Verification Interface Administration Guide (AAP-VI) (22 pages). Both are easy to read because they are well organized and read like children’s books. Both guides display limited language on their pages. In addition, images on virtually every page interrupt the text and display screenshots of the Ranking Portal software pages that users would be filling out if they chose to comply with OFCCP requests to contractors. that they use the portal. A nice “Show-n-Tell” for the people that contractors and sub-contractors choose to punish by instructing them to complete all of these documents if the contractor / sub-contractor agrees to submit and comply with one. or the two new OFCCP initiatives.

Hourly

OFCCP told OMB that it will require entrepreneurs to comply with both initiatives 90 days after OFCCP has been able to launch its portal which I will describe below. The OFCCP has so far not given any private or public report on when it will complete the portal and open it for use by covered federal contractors and subcontractors. Additionally, before the OFCCP can open its portal to federal audited contractors / subcontractors to deliver their PAAs (if they choose to do so) through the OFCCP portal, the OFCCP has yet to come back. to the OMB to request a modification of the entire OFCCP audit. Programming letters to direct the submission of AAPs to the next OFCCP portal. So, it’s going to be long. Many jaded federal contractors have already opened side betting pools, which hampers the chances of knowing when the OFCCP could finish building, testing, commissioning its portal, completing all the necessary documents, then the 90-day period. This fiscal year is not a safe bet (there are only 24 days left until the new federal fiscal year. By the way, where is that federal budget for fiscal year 2022?) Also, “not this calendar year Is probably also a safe bet (only 116 days left in this calendar year, including many holidays). Spring 2022?

The portal initiative

The OFCCP first proposes to build an electronic portal to receive, during OFCCP audits, Affirmative Action Programs (“PAA”) for (a) minorities and women, (b) people with disabilities and (c) protected veterans required by OFCCP rules. THE TWO Federal government contractors covered AND subcontractors develop, maintain and update annually.

Let’s call it the “Portal Initiative”, although the title that OFCCP has officially given to its portal is “Positive Action Program Verification Interface (AAP-VI)”. For those of you who are predisposed to mathematical calculations or for whom Latin is your first language, the “VI” stands for “Verification Interface”, not the Roman numeral six. Acting as a portal, the AAP-VI is simply a receiving mailbox, OFCCP hopes, electronic (i.e. OFCCP will receive PDF documents through the portal) and digital copies of three types of positive action plans from the aforementioned Federal Contractor (including Functional Affirmative Action Plans (“FAAP”) once the OFCCP has called them by supply and service contractors, including universities and colleges (but not construction contractors, as they do not develop or maintain affirmative action plans) to review them as part of an OFCCP compliance assessment (i.e. say, Audit).

Significantly, OFCCP privately acknowledges to OMB in Statement in Support A, what OFCCP has been saying for decades and the federal contractor community is well aware: Best practice “into a” requirement. »Strict and enforceable law that applies to federal contractors. In reality, OFCCP is simply hoping that federal contractors will “play the game” with OFCCP and exercise their discretion to do something that OFCCP cannot otherwise force federal contractors to do: file electronically. Later, we will explain why many and more entrepreneurs are afraid of the OFCCP portal.

The AAP certification initiative

Apart from the “portal initiative”, OFCCP also seeks to require contractors and subcontractors covered in federal government supplies and services to complete three annual “certifications” by checkbox declarations, via the AAP portal. -VI. Let’s call this the “AAP Certification Initiative”. (The name VI (“Verification interface”) OFCCP has indicated that its portal is unfortunate in that it does not follow the language used by OFCCP on the AAP “certification” forms it created as part of the AAP verification initiative or the “certification” language used by the United States Government Services Administration (“GSA”). used for many years in its SAM (System for Award Management) (federal contract (excluding subcontracts) and federal software for tendering and awarding grants.)

You can also consult pages 16 to 18 inclusive (“AAP ​​Certification”) of its User Guide (link above) to see OFCCP screenshots of its upcoming required certifications.

Want an additional overview?
Dive deep into today’s news bonus blog post detailing the unexpected problems, the time of deployment and the special “surprise” the OFCCP has in store for some AAP providers.


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