According to a follow-up/status report by the U.S. Government Accountability Office (GAO), the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has made significant progress toward implementing a GAO recommendation to “monitor” federal contractors’ affirmative action programs (AAPs) by requiring contractors to annually submit written AAPs to the OFCCP, regardless of whether or not the contractor has been selected for a compliance review.
The GAO is a legislative branch agency that provides auditing, evaluation, and investigative services for Congress. In 2016 the GAO investigated the OFCCP’s practices at the urging of Representatives John Kline (R-PA) and Tim Walberg (R-IL) over concern that the OFCCP was imposing excessive compliance burdens on contractors.
Ironically, the GAO made several recommendations for ways the OFCCP could improve its practices, at least one of which would significantly increase the burden on the federal contracting community. Specifically, the GAO recommended that the OFCCP develop “a mechanism to monitor AAPs from covered federal contractors on a regular basis.” The GAO suggested that such a mechanism “could include electronically collecting AAPs and contractor certification of annual updates.”
Of the six recommendations the GAO made in the 2016 report, and five additional recommendations in a 2017 follow-up report, the OFCCP has implemented just one—the agency has taken steps toward requiring contractors to “disaggregate demographic data for the purpose of setting placement goals…rather than setting a single goal for all minorities.” The OFCCP has in fact been encouraging contractors to set race-/ethnicity-specific placement goals, but the agency’s regulations do not require it and the agency has not provided any meaningful guidance regarding how contractors should determine when/if such placement goals are necessary.
On page 11 of a recent follow-up/status report, the GAO notes that the OFCCP “has taken steps toward implementing a mechanism to monitor AAPs but has not fully implemented this recommendation.” Specifically, the OFCCP contracted with a third-party information technology vendor last year to develop a web-based “portal” to allow contractors to upload their AAPs electronically for OFCCP review and “resource prioritization” (e.g., identifying where, when, and how to better allocate audit resources). The OFCCP anticipates delivery of a working portal by the close of fiscal year 2019 (September 30, 2019).
Notably, the OFCCP also reports that the agency has developed the necessary information collection request (ICR) to obtain approval from the White House Office of Management and Budget (OMB) to “collect all contractors’ AAPs annually.” The agency anticipates that OMB approval will come in time for the completion of the portal. Interestingly, a search of ICR requests at reginfo.gov for the past two years does not return an ICR request regarding the annual collection of federal contractors’ AAPs. Nor has there been any notice in the Federal Register regarding such a requirement.
Given that we are days away from the end of the OFCCP’s 2019 fiscal year with no other indication that an AAP reporting requirement is eminent, it would appear that there has been some delay. Nonetheless, it would appear that such a requirement is in the works.
Note that there is an existing provision in the OFCCP’s regulations at 41 C.F.R. § 60-2.31 that requires contractors to annually summarize and update their AAPs and submit these “program summaries” to the OFCCP each year in a format prescribed by the agency. This provision has laid dormant since its inception but would be relatively easy for the agency to “activate.”
Given that the OFCCP currently audits anywhere from 2-4% of federal contractor AAPs each year, this technological advancement would fundamentally change the landscape by requiring all contractors submit all AAPs each year…a sea change to say the least.
We will continue to monitor the situation and report on further developments as they occur.