U.S. Government contractors and subcontractors must complete OFCCP Affirmative Action Program certifications by June 30, 2022

Federal Acquisition Regulation (FAR) Executive Order 11246 (the “Executive Order”) and Contract Clause 52.222-26 (the “FAR Clause”) have long provided important employment-related requirements for government contractors and subcontractors. New rules now require certifications – by June 30, 2022 – in relation to compliance with positive action commitments.

Companies that have a contract (a “Prime Contractor”) or subcontract with the US Government for $50,000 or more and that have 50 or more employees are required by the Executive Order and the FAR clause to undertake to: not to engage in discrimination and also to accept measures to ensure equal employment and promotion of protected persons. Under the Executive Order and FAR Clause, these companies must have an affirmative action program (AAP) for each employment location, including a written affirmative action plan (and if there is a federal contract or $150,000 or more, a written Veteran’s Plan per FAR 52.222-35 is also required). Compliance with these requirements is monitored by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

In the past, confirmation of contractor compliance with this requirement was typically only verified during a scheduled OFCCP audit. Under the new rules published by the OFCCP, companies that are required to have an AAP now have until June 30, 2022 to certify that they have developed and maintained the required AAP and written positive action plans for each location covered by the requirement. Going forward, companies that are new to the AAP requirement will have 90 days from the development of the AAP to complete online certification for OFCCP. Certification is online at https://www.dol.gov/agencies/ofccp/contractorportal.

A company must make one of the following declarations as part of certification:

  • It has developed and maintained affirmative action programs at each facility and/or for each functional or business unit, as appropriate.
  • Has been a party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each facility, if applicable.
  • It has become a federal contractor or subcontractor in the past 120 days and as such has not yet developed applicable affirmative action programs.

By implementing this online certification requirement, OFCCP is now not only aware of which companies that have contracts directly with the US government (referred to as “Prime Contracts”) are subject to the requirements of the FAR Clause, but are now also made aware of Businesses that are subcontractors under a federal contract that are subject to the requirements of the FAR Clause.

Prime contractors, or companies that have a contract with a prime contractor, should review those contracts, including the contract value, to ensure they know if they need to have an AAP (and if so, that they have the AAP and necessary plans in place) and complete the certification described above.

If you have any questions regarding the above or any other matter relating to federal treaties, please contact a member of staff in the firm’s federal treaties practice: Mark Fitzgerald, Mark Bass, or Seth Cowell.

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