Tuesday August 31, 2021: OFCCP’s New Emerging AAP Delivery Portal and AAP “Verification” Program: Much Ado About Nothing
- Both New Initiatives Lack Regulatory Authority and Both Are Unenforceable
- But, will contractors nonetheless flock like lemmings?
What Just Happened?
OFCCP has now received approval (click on all boxes of interest to you on the linked document to make that information appear) from the Office of Management and Budget (“OMB”) following its “Information Collection Review” of OFCCP’s “Information Collection Request” to go forward for three years with two inter-related contractor compliance initiatives. The Obama OFCCP envisioned both initiatives, the Trump OFCCP put them forward to OMB and the Biden OFCCP now hopes to implement them. They are what I will call the “AAP Portal Filing Initiative” and the “AAP Certification Initiative.”
Significantly, OFCCP advised OMB’s Office of Information and Regulatory Affairs (“OIRA”) in a lengthy April 28, 2021 Supporting Statement A that it does NOT intend to seek regulatory authority for either new Initiative. (Read Supporting Statement A if you want to understand what OFCCP is proposing to do. It is all there in one place…in one lengthy and detailed, but well-written, document.) Of course, OFCCP like all federal agencies, needs legal authority independent of OMB’s approval of both Initiatives pursuant to OMB’s Paperwork Reduction Act oversight authority. OMB does not anoint federal agencies with substantive legal authority to act, but rather simply reviews the agencies’ proposed burden on the regulated community and the “information collection requests” the agencies propose to OMB for review and approval. OMB’s role is only to make sure that what the federal agencies are proposing is not inappropriately burdensome on the regulated community and is consistent with the work of other federal agencies and neither duplicative of nor in conflict with them.
Helpful OFCCP Navigational Documents
Apart from reading OFCCP’s Supporting Statement A, you may wish to peruse two OFCCP “Guides” designed to help those persons assigned to input data into OFCCP’s portal software and make the called-for declarations discussed below (among those federal contractors and subcontractors which choose to volunteer to comply with one or both of OFCCP’s new Initiatives.) The two Guides are the OFCCP’s User Guide for the Verification Interface (AAP-VI) (26 pages) and OFCCP’s Administrative Guide for the Verification Interface (AAP-VI) (22 pages). Both are easy reads because they are well organized and read like childrens’ books. Both Guides display scant language on their pages. Also, pictures on virtually every page interrupt the text and display screen shots of the pages in the filing portal software users would be completing, if they choose to comply with OFCCP’s requests to contractors that they use the portal. A nice “Show-n-Tell” for those persons contractors and subcontractors choose to punish by assigning them to complete all this paperwork if the contractor/subcontractor agrees to submit and comply with either or both of OFCCP’s two new Initiatives.
OFCCP told OMB that it would require contractor compliance with both Initiatives 90 days after OFCCP was able to launch its portal I will describe, below. OFCCP has thus far given no private or public report of when it will complete the portal and will open it for use by covered federal Government contractors and subcontractors. In addition, before OFCCP may open its portal to federal contractors/subcontractors subject to audit to deliver their AAPs (if they choose to do so) through OFCCP’s portal, OFCCP needs to double back yet to OMB to request a change to all of OFCCP’s audit Scheduling Letters to direct the submission of AAPs to OFCCP’s coming portal. So, this is going to be a while. Many jaded federal contractors have already opened side betting pools handicapping the odds as to when OFCCP might finish building, testing, making operational its portal, getting all the needed paperwork to completion and then allowing 90 days to go by. Not this Fiscal Year is an entirely safe bet (only 24 days left to the new federal Fiscal Year. Where is that FY 2022 federal Budget, by the way?) Also, “not this calendar year” is likely also a safe bet (only 116 days left in this calendar year, including many holidays). Spring 2022?
The Portal Initiative
OFCCP first proposes to build an electronic portal to receive, during OFCCP audits, the Affirmative Action Programs (“AAPs”) for (a) Minorities and Women, (b) Individuals with a Disability, and (c) Protected Veterans which OFCCP Rules require BOTH covered federal Government contractors AND subcontractors to develop, maintain and then annually update.
Let’s call this the “Portal Initiative,” although the title OFCCP has officially given its portal is “Affirmative Action Program Verification Interface (AAP-VI)”. For those of you with minds predisposed to mathematical calculations or for whom Latin is your first language, the “VI” stands for “Verification Interface,” not Roman numeral six. Acting as a portal, AAP-VI is simply a mailbox to receive, OFCCP hopes, electronic (i.e., OFCCP will receive PDF documents through the portal) and digital copies of all three types of the above-referenced federal contractor Affirmative Action Plans (including Functional Affirmative Action Plans (“FAAPs”) once OFCCP has summonsed them from Supply and Service contractors, including universities and colleges (but not construction contractors since they do not develop or maintain Affirmative Action Plans) to review in an OFCCP Compliance Evaluation (i.e., audit).
Significantly, OFCCP acknowledges privately to OMB in Supporting Statement A, what OFCCP has said for decades and the federal contractor community knows well: that OFCCP currently lacks regulatory authority to require electronic or digital filings and is hoping to turn what OFCCP describes as currently a “Best Practice” into a hard and enforceable “requirement” operating on federal contractors. In reality, OFCCP is simply hoping that federal contractors will “play ball” with OFCCP and exercise their discretion to do something OFCCP cannot otherwise compel federal contractors to do: file electronically. More later on as to why many and an increasing number of contractors are fearful of the OFCCP portal.
The AAP Certification Initiative
Independently of the “Portal Initiative,” OFCCP seeks to also compel covered federal Government Supply & Service contractors and subcontractors to make three annual “certifications” by check-box Declarations, via the AAP-VI Portal. Let’s call this the “AAP Certification Initiative.” (The VI name (“Verification Interface”) OFCCP has given its portal is unfortunate in that it does not track the language OFCCP uses on the AAP “certification” forms it has created within the AAP-Verification Initiative or the “certification” language the U.S. Government Services Administration (“GSA”) has used for many years in its SAM (System for Award Management) (federal contract (not including subcontracts) and federal grant bid and award software.)
You may wish to also consult pages 16 to 18, inclusive (“AAP Certification”) of its User Guide (linked above) to see OFCCP’s screen shots of its coming required certifications.
The first certification requires contractors and subcontractors to select one of three proffered statements describing the then current status of the entity’s AAP development and maintenance and then click a box so certifying. If the certification initiative indeed comes to fruition, the inclusion of covered federal Government subcontractors in the certification “requirement” will, by the way, create the first-ever database of subcontractors AND will be the first-ever AAP completion certifications the federal government has asked covered federal Government subcontractors to make (since subcontractors operate outside the GSA SAM federal contract and grant bid system, described more fully below). Currently and historically, the federal government and OFCCP have not had a comprehensive or reliable database of covered federal Government “subcontractors.” If subcontractors choose to comply with OFCCP’s AAP Certification Initiative, they will build that first-ever such database, certification-by-certification…a process which will also reveal, for the first-time in history, which companies are “covered federal Government subcontractors.” File this under “shooting oneself with one’s own gun.”
WARNING: Companies and institutions need to be very careful, however, before creating admissions against interest that they are federal “subcontractors.” This is a highly litigated definition with no fewer than seven major case law decisions which define it and have dramatically limited it in the last three decades. Unlike OFCCP’s often overly-expansive explanations of what a “subcontractor” is in its view, federal court decisions and USDOL’s Office of the Solicitor agree that only those subcontracts for goods or services which are “legally” necessary (repeat: legally necessary) to a prime contract or some other covered federal Government subcontract are federal “Government” “subcontracts” subjecting those contracts to OFCCP’s jurisdiction. In other words, if there is no legal requirement operating upon the at-issue prime contract (or operating upon a covered federal Government subcontract) which requires the at-issue subcontractor to perform that task for the prime (or for the covered federal Government subcontractor), the company is merely a “subcontractor,” but not a “covered” federal “Government subcontractor” subject to OFCCP’s jurisdiction and Rules. (In other words, a company supplying workers compensation insurance to a prime federal contractor, for example, is a covered federal Government “subcontractor” because the prime federal contracts require compliance with all state laws and state law, in turn, requires employers to have workers compensation insurance. So, an insurance company’s contract with the prime federal contractor to supply workers compensation insurance is “legally necessary” to the government contractor’s performance of its prime federal contract because the law requires that prime contractor to enter into a workers compensation insurance subcontract.)
Now, back to OFCCP’s first certification. To truly understand this first certification requirement OFCCP hopes to compel, one must first understand and distinguish, to avoid confusion, the very different and separate SAM certification with which bidders on federal prime contracts long ago became familiar when bidding for a contract. It is from the SAM certifications which OFCCP drew inspiration for its first certification announced last Tuesday. Unfortunately, in pursuit of its certification authority, OFCCP was unable to persuade GSA to cooperate with OFCCP and was unable to persuade GSA to provide its certification database to OFCCP. Accordingly, OFCCP decided, and OMB has now approved, OFCCP’s decision to create within OFCCP’s AAP-VI portal a more exacting (and much broader) certification from federal contractors than the existing GSA SAM certification.
But, let’s slow down for a moment to review what AAP certifications federal government contract (and grant) bidders already make when entering a federal contract (or grant) bid. Federal contractors know well the venerable procurement portal known as SAM. SAM is the computer system GSA manages and uses to “register” all individuals and companies which wish to enter into contract with one or more federal agencies of the United States government. SAM is the enormous portal through which almost all federal government contract and grant bids and awards pass. (By the way: another great federal acronym for GSA. SAM. Uncle Sam. Federal Government contracting. Get it?)
SAM has had for many years a “Questions and Declarations Statement” section embedded in every federal contract bid form. The SAM bidding software requires the bidder to “certify” (not “verify”) [currently at Question 23 of the SAM Questions and Declarations section] as true one of the following three statements (abbreviated here for brevity’s sake) about the status of its AAPs by declaring that the bidding entity has:
- “developed and has on file” AAPs “required by Secretary of Labor regulations” at each establishment, as applicable; or
- no AAPs when it should have them in place; or
- just became a covered federal Government contractor within the last 120 days and is thus exempt from just yet developing AAPs (for the moment, per 41 CFR Section 60-2.1(c)).
Inspired by the three possible certification statements in SAM, OFCCP mimicked, but did not copy them verbatim for use in its AAP-VI software certification initiative. Rather, OFCCP claims it will require a covered federal Government contractor/subcontractor to pick and certify one of the following three statements OFCCP will present in its AAP-VI software portal:
- “It has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit. See 41 CFR Chapter 60.” [This is a good answer from OFCCP’s perspective.]
- “It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.” [This is a bad answer from OFCCP’s perspective.]
- “It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.” [This is a good answer from OFCCP’s perspective, for the moment…until AAPs are due to be developed and maintained at and after the 120-day mark after securing one’s covered federal Government contract/subcontract]
Note the verbs of the Declaration OFCCP asks covered federal Government contractors to certify: “developed and maintained.” By the way, that is language right out of 41 CFR Section 60-2.1 “Who must develop affirmative action programs” and 41 CFR Section 60-1.12 (b). While these words are undefined in OFCCP’s submission to OMB, presumably OFCCP will argue that “developed” means pursuant to OFCCP’s Rules given the reference to 41 CFR Section 60. Similarly, OFCCP will likely argue that the word “maintained” means that the covered entity must keep its AAPs in its possession for the regulatorily required length of time per 41 CFR Section 60-1.12 (OFCCP’s Recordkeeping Rules).
By the way, Question 22 on the SAM “Questions and Declarations Statement” also asks federal contract bidders to “certify” (not “verify”) that the bidder has “filed (emphasis added) all required” EEO compliance reports [Editor’s Note: not “developed” or “maintained” them: simply “filed” them] pursuant to 52. FAR.222.25 “Affirmative Action Compliance.” This “FAR” reference is to that portion of the Federal Acquisition Regulations which also requires the “offeror” (i.e., the bidder on the federal government contract) to “represent” that it either “has developed and has on file,” or has NOT “developed and does not have on file” at each establishment, AAPs “required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and 60-2).” Alternatively, the offeror may represent that it has not previously had contracts “subject to the written affirmative action program requirement of the rules and regulations of the Secretary of Labor.” It is really SAM Question 22 that historically has driven the certification of AAPs the contractor has “developed” and maintains in its system of records.
The two 41 CFR citations (60-1 and 60-2) which the SAM representation (above) references should be well familiar to OFCCP practitioners as incorporating the so-called “EEO Clauses” (to Executive Order 11246) at 41 CFR Section 60-1 (including the duty at 41 CFR Section 60-1.7(c) to file EEO-1 Reports. Hmmm. I wonder why OFCCP felt obliged to write a Rule compelling covered federal Government contractor to file EEO-1 reports but does not think it needs to write a Rule for the electronic filing of AAPs with OFCCP or to annually certify several pieces of information with OFCCP?)
In turn, 41 CFR Section 60-2, requires covered federal Government contractors to develop Affirmative Action Plans for Minorites and Women, specifies the contents of those AAPs and requires contractors to provide OFCCP, upon request in audits, with the documentation underlying the various calculations the contractor develops in the various analyses called for in the AAP for Minorites and Women. Nowhere do OFCCP’s existing Rules require contractors to certify to OFCCP that they have prepared AAPs pursuant to OFCCP’s requirements at 41 CFR Section 60-2, whether during an audit or otherwise.
To mechanically accomplish this certification, by the way, OFCCP has set up in its AAP-VI software a “Declarations and Certification tab” setting forth the three possible statements about the status of the contractor’s AAP development and maintenance…much like the bidder certification architecture in SAM. By the way, OFCCP has stated to OMB that it will offer to share its eventual certifications database with GSA. Obviously, OFCCP wants GSA to compare the bidder’s statements to GSA at point of bid with the contactor’s / subcontractor’s annual statements to OFCCP. And, OFCCP hopes GSA will, upon reflection, agree to reciprocate by sharing its certification information back to OFCCP.
The second new certification OFCCP is seeking to unveil is a check-box certification that the covered entity has “developed and maintained” required AAPs for each and every AAP establishment within the covered federal Government contracting entity. OFCCP envisions an annual certification on a date certain for all of a contractor’s AAPs. OFCCP has not yet specified that date, and of course, must do so, at any rate as it has done for the EEO-1 filing and for AAP submissions to the agency, via Rulemaking to make its “certification requirement” legally enforceable. See pages 16 & 17 of OFCCP’s User Guide to see a screen shot of OFCCP’s coming “establishment certification” format. You will also have to read OFCCP’s Supplemental Statement A to obtain OFCCP’s discussion of its thinking favoring an annual simultaneous filing date for all AAP establishments certifications.
OFCCP intends to have contractors and subcontractors register into the AAP-VI platform, create an account for the company and create a separate page for each AAP establishment within the contractor’s company (or companies) which is a covered federal Government contractor or subcontractor. If a company/institution has 100 AAP establishments, for example, OFCCP will thus want the company/institution to create 100 AAP establishment pages, one for each establishment. After creating its AAP establishment pages, OFCCP expects the filing entity to certify, via a checkbox, that it has developed AAPs at each establishment, by going from one establishment page to the next establishment page and checking a box on each page declaring that the filing entity is compliant with OFCCP’s Rules in each AAP establishment governing the development of applicable AAPs.
SURPRISE! SURPRISE! SURPRISE! But OFCCP has included a surprise third certification obtaining the filing entity’s certification that it understands that it may NOT alter or update any active AAP FOLLOWING certification that the contractor has developed it in conformity with OFCCP’s Rules of AAP construction and has maintained all of its active AAPs. This attempt to “tie-the-contractor’s hands” from freely and unilaterally altering and/or correcting its AAPs when it chooses to do so, just like any other corporate document, throws a jab at those unknown and unnamed AAP vendors rumored to prepare only, what are oftentimes called, “skinny AAPs” or “boilerplate AAPs”. “Skinny AAPs”/” boilerplate AAPs are those not sufficiently fully baked to count as a “reasonable AAP submission” as OFCCP defines that concept in its Federal Contract Compliance Manual. Perhaps the AAP is “skinny” because it is missing major component parts. However, it is more likely that it is “skinny” or “boilerplate” because it is not customized to the AAP establishment in question but rather contains only rote language and analyses created for one lead AAP and then duplicated uncritically and tattooed into all of a contractor’s AAPs across the country regardless of geographic location or the work of the contractor’s various offices and plants.
It is rumored that some AAP vendors develop these skinny/boilerplate AAPs and then trade them out for an upgraded version once the contractor/subcontractor receives notice of a coming audit by way of OFCCP’s periodic CSAL notices. OFCCP has complained for years that it receives AAPs which it believes were altered, often in significant ways, in the days immediately before the contractor or subcontractor placed its AAPs on file with OFCCP for use in an announced OFCCP audit. OFCCP’s belief has been that the sudden major changes to the AAP were accomplished to render them suddenly compliant, but only because OFCCP forced an audit and not because the contractor either discovered honest errors in the HR data contained in the contractor’s/subcontractor’s AAPs and corrected them, or updated the AAPs with newly available data. OFCCP’s concern about this practice has been that it wants to create a “level playing field” among government contractors. Specifically, OFCCP does not want to disincentivize compliance by allowing some scofflaw contractors to get away with decreasing their compliance costs by shrinking their OFCCP compliance duties while other responsible contractors incur more substantial costs to prepare full-fledged and compliant AAPs per OFCCP’s Rules. And, because OFCCP typically annually audits far less than 2% of the covered federal Government contractor universe, the failure of OFCCP to “tie-the-hands” of federal contractors once they certify their AAPs, would allow a lot of “skinny” or missing AAPs to remain so…absent OFCCP’s SURPRISE contractor hand ties.
Specifically, the SURPRISE is that OFCCP has added to its certification of each AAP establishment that the contractor or subcontractor “will not be able to edit my “affirmative Action Plan after I click the submit button.” (emphasis added) This “hands tied” language is unique to OFCCP’s form of AAP certification and does not currently appear in SAM.
The Specific Language of the OFCCP Declaration to be Made in AAP-VI (containing the SURPRISE language): OFCCP intends to have the contractor, subcontractor and/or grantee Declarant “[a]ffirm that the information you are submitting is true and accurate by selecting the checkbox for the Declaration Statement.” And, here is OFCCP’s Declaration Statement:
“I certify that the information that has been provided as part of our Affirmative Action Plan (AAP) certification is true and correct to the best of my knowledge. I also understand that any attempt to refuse to submit an AAP certification, alteration or falsification of required records or information and any substantial or material violation may result in the institution of administrative or judicial enforcement proceedings…. I also understand that I will not be able to edit my Affirmative Action Plan after I click the submit button.” (emphasis added)
See page 17 of OFCCP’s User Guide (Section 5.1) containing a fuzzy screen shot depicting “Step 1 of 2” of the AAP certification process and specifically the “SAM Questions and Declaration Statement.”
Now, many Government contractors and subcontractors can relax.
|There is no OFCCP proposal on the table to collect all AAPs from all covered federal Government contractors / subcontractors and have them deliver those AAPs to OFCCP’s glutenous AAP portal.|
Contractors are wary of OFCCP’s Portal Initiative for very legitimate reasons: First, as noted above, OFCCP lacks regulatory authority to compel covered federal Government contractors to submit AAPs for audit via electronic and/or digital means. OFCCP has always acknowledged that lack of authority (while always wishing it could compel digital deliveries). There is nothing controversial in this observation that OFCCP lacks the authority to compel electronic (or digital) document deliveries to it. This observation thus raises the question why raise the risk of any submission to OFCCP accomplished via unnecessary and unenforceable electronic or digital means?
Contractors take comfort that OFCCP cannot compel them to provide documents in digital form because data security concerns (computer system hacking and Ransomware/surveillance/public exposure of business and customer information) have mounted to become the number one long term business concern affecting businesses in the United States. As contractors weigh and balance risks, most contractors are legitimately concerned that OFCCP’s electronic storage, retrieval and use policies and practices do not offer sufficient data privacy or protection against data hacking or data misuse. (Did I hear somebody whisper SOC 2 compliance, which is the current floor (not zenith) of data security compliance?) Many contractors note that OFCCP fails to meet data security requirements contractors routinely insist upon as to all other vendors and businesses with which they do business. (Moreover, many federal agencies gathering and housing much more important documents than AAPs are hacked dozens of times daily by private and nation-state hackers. The White House, the Office of Personnel Management (which also gave up millions of Top-Secret Personnel files, including that of John Fox), and the Departments of Homeland Security, Commerce, Energy, and Justice, among many others, have all been hacked, and their data comprised.)
Also, some, but not most, federal Government contractors have Human Resources Trade Secrets embedded in their AAPs for Minorities and Women. This raises special document security concerns for those federal contractors with this condition for which OFCCP makes no special provision.
As a result of OFCCP’s tardy adoption of top tier security-safeguarded computer systems, many contractors prefer to deliver their Affirmative Action Plans to OFCCP and corporate and employee file documents via PDF (“Portable Document Format”). Happily, as noted above, OFCCP has announced to OMB its intention to allow PDF submissions to OFCCP (through its AAP-VI). Moreover, many federal Government contractors prefer to ALSO accomplish delivery of AAP information via overnight delivery service or via the United States Postal System AND NOT by digital delivery (despite its relative ease). In so adopting these two simple document security protocols, contractors hope they will deter, or even defeat, computer hackers engaged in digital data theft, or at least slow them down. This is because PDFs, while electronic, are only a picture and are thus not digitally readable (i.e., by a computer). Proof of theorem: ask a vision impaired person using a screen reader (like JAWS™, for example) to read digital documents to them out loud, what happens when the screen reader encounters a picture in the document it is reading, perhaps of a tree, for example, instead of encountering a word? Absent “alt text” (aka an “alt tag”) describing the picture, the computer cannot “read” it and thus cannot translate it into the spoken word. The computer just skips over the tree in my example and cannot digitally translate it or use artificial intelligence to discern it is a tree and proceed to describe it to the vision-impaired computer user.
So, absent OFCCP’s issuance of a regulation requiring digital document filings, no covered federal Government contractor currently has a regulatory duty to supply digitally readable copies of their AAPs to OFCCP or to deliver their AAPs to OFCCP via OFCCP’s coming digital AAP filing portal. Rather, contractors may continue to mail their AAPs into OFCCP in paper form as contractors have done in a long-lasting tradition for coming up on 50 years now (since 1972 when the Nixon Administration first created AAPs for Minorites and Women).
OFCCP cannot compel covered federal contractors to verify that they have created AAPs and that they comply with OFCCP’s Rules of AAP construction. Well, surprise, OFCCP does not have that regulatory authority now (or historically). We will get to that, but contractors must remember that GSA and SAM DO HAVE THE LEGAL AUTHORITY TO REQUIRE A CONTRACT BIDDER TO “CERTIFY” AAP COMPLIANCE AT THE TIME OF THEIR BID. And, that has been true for many, many years.
First: OFCCP’S Claimed Regulatory Authority to Compel VEVRAA AAP Verifications Does Not Exist
Let’s first review what OFCCP told the Office of Management and Budget (“OMB”) its (OFCCP’s) regulatory authority was to compel “verifications” of AAPs for Protected Veterans pursuant to VEVRAA (38 USC Section 4212) and its OFCCP implementing Rules at 41 CFR Section 60-300 and following.
So, what did OFCCP tell OMB on OFCCP’s Information Collection Request its (OFCCP’s) regulatory authority was pursuant to its VEVRAA Rules either to cause contractors to:
- submit AAPs to OFCCP outside of a “Compliance Evaluation” so OFCCP may verify that the contractor actually has them prepared and in place per OFCCP’s Rules; or
- check a box on an OFCCP form to “verify” the existence of properly prepared contract AAPs?
OK, here it is:
“CFR Citation: ***41 CFR 60-300.40(c)***.”
So, here is what 41 CFR Section 60-300.40(c) says in fact:
“§ 60-300.40 Applicability of the affirmative action program requirement.
(c) The affirmative action program shall be reviewed and updated annually by the official designated by the contractor pursuant to § 60-300.44(i).”
So, unfortunately for OFCCP, this regulatory citation gets nowhere close to infusing OFCCP with authority to require contractors to either deliver VEVRAA AAPs for Protected Veterans to OFCCP for verification, or to cause covered federal Government contractors to “verify” the existence of compliant VEVRAA AAPs by way of a simple check-the-box form.
In fact, this regulatory citation misses the mark by so far, it reveals the desperation the Solicitor’s Office faced in trying to support then OFCCP Director Craig Leen’s hope of compelling these contractor verifications in some fashion. (Please remember, OFCCP Director Pat Shiu in the Obama Administration first had the dream of requiring contractor verifications before OFCCP Director Craig Leen came along in the Trump Administration and caused the paperwork to be drafted to go over to OMB to ask it for permission to require AAP verifications. It is that Trump OFCCP request which the Biden OMB has now processed and sent back to the Biden OFCCP following approval.)
So, OFCCP has no regulatory authority to compel contractors to accomplish either form of verification of its VEVRAA AAPs: neither delivery of the AAPs to OFCCP nor a check-the-box requirement.
Second: OFCCP’S Claimed Regulatory Authority to Compel Section 503 AAP Verifications Does Not Exist
So, what did OFCCP tell OMB on OFCCP’s Information Collection Request its (OFCCP’s) regulatory authority was pursuant to its Section 503 Rules to cause contractors to verify their AAPs for Individuals with Disabilities?
OK, here it is:
“CFR Citation: ***41 CFR 60-741.40(b)(3)***.”
So, here is what 41 CFR Section 60-741.40(b)(3) says in fact:
“41 CFR § 60-741.40 General purpose and applicability of the affirmative action program requirement.
(b) Applicability of the affirmative action program.
(3) The affirmative action program shall be reviewed and updated annually by the official designated by the contractor pursuant to § 60-741.44(i).”
So, unfortunately for OFCCP, like the parallel VEVRAA Rule citation, this Section 503 Rule regulatory citation gets nowhere close to infusing OFCCP with authority to require contractors to either deliver Section 503 AAPs to OFCCP for verification, or to cause covered federal Government contractors to “verify” the existence of compliant Section 503 AAPs by way of even a simple check-the-box form.
So again, without further regulatory change, OFCCP is unable to compel covered federal Government contractors to verify to OFCCP that they have properly developed and maintained their Section 503 AAPs.
So, what did OFCCP tell OMB on OFCCP’s Information Collection Request its (OFCCP’s) regulatory authority was pursuant to its Executive Order 11246 Rules to cause contractors to verify their AAPs for Minorities and Women?
So, this suddenly gets much more interesting as OFCCP put forward to OMB no fewer than three different regulatory citations it claims all independently authorize OFCCP to compel 11246 AAP verifications (which is suspicious in and-of-itself given the number of proffered justifications: unconfidently throwing everything up on the wall to see if anything sticks).
OK, here is the first of three citations OFCCP has put forward to justify verification of contractor AAPs for Minorities and Women:
“CFR Citation: ***41 CFR 60-2.31***.”
So, here is what 41 CFR Section 60-2.31 says in fact:
“41 § 60-2.31 Program summary.
The affirmative action program must be summarized and updated annually. The program summary must be prepared in a format which will be prescribed by the Director and published in the Federal Register as a notice before becoming effective. Contractors and subcontractors must submit the program summary to OFCCP each year on the anniversary date of the affirmative action program.”
This OFCCP Rule has been around since the Carter Administration but neither OFCCP nor OMB has ever sought to breathe life into it. It has been dormant for over 40 years. (So, relax. You do not have to provide a Summary of your AAP to OFCCP).
A “certification” is not a summary in any Websters’ dictionary. Moreover, OFCCP intention is to compel a single date in the future on which to have all federal contractors file their certifications. This notion, too, runs afoul of the language of the Rule OFCCP believes authorizes the agency to compel annual verifications. What 41 CFR Section 60-2.31 states is that any AAP Summary is to be filed on the “anniversary date” of the AAP.
So, this is clearly another OFCCP stretch position trying to force a suggestion that this language at 60-2.31 somehow now creates a duty on a contractor to either submit its AAPs for Minorites and Women to OFCCP to allow the agency to verify the contractor’s AAP compliance, or to “check a box” verifying that the contractor really does have compliant AAPs for Minorities and Women stacked up in files awaiting OFCCP’s audit Scheduling Letter. Certification of compliance is simply not the filing of a Summary of the AAP for Minorities and Women.
This proffered justification to support OFCCP’s AAP verification proposal is interesting, again, though in that it suggests OFCCP’s Solicitors harbor concern about the infirmity of OFCCP’s other alternative explanations for OFCCP’s authority to compel verification. Why would a lawyer put this explanation forward when it is so weak? It detracts from the strength of the other possible sources of OFCCP’s authority and now imbues those remaining posited sources of authority for OFCCP’s Certification Initiative with a presumption against their validity.
Here is the second of three citations OFCCP has put forward to justify verification of contractor AAPs for Minorities and Women:
“CFR Citation: ***41 CFR 60-2.32***.”
So, here is what 41 CFR Section 60-2.32 says in fact:
“41 CFR § 60-2.32 Affirmative action records.
The contractor must make available to the Office of Federal Contract Compliance Programs, upon request, records maintained pursuant to § 60-1.12 of this chapter and written or otherwise documented portions of AAPs maintained pursuant to § 60-2.10 for such purposes as may be appropriate to the fulfillment of the agency’s responsibilities under Executive Order 11246.”
Unfortunately for OFCCP, this language, too, is twice insufficient to authorize OFCCP to compel AAP certifications. First, a duty to “make available” both “records” and “documented portions of AAPs” are not check-box certifications. Second, reliance on this particular Rule, and it is true of the other four Rules OFCCP fingers as the source of OFCCP’s authority to compel check-box certifications as to all three of OFCCP’s enforcement programs, fails utterly under scrutiny pursuant to the strictures of the Administrative Procedure Act (APA). This is because each of the cited OFCCP Rules lacks sufficient detail to make clear a contractor’s obligation to supply the various certifications and when and how. The fingered existing OFCCP Rules make no reference to what a contractor is to do to specifically to certify and moreover makes no statement of the timing of any such verification (upon contract bid? Monthly? Annually? Every five years?) Finally, what is the form of the verification? AAP submissions? Check-the-box?
Under the APA (which I call “the you gotta write it down” law), federal agencies like OFCCP have to be clear and detailed in their requirements before they can hold a member of the regulated community to be in violation of unclear Rules. For example, David Copus and I successfully represented the Firestone Tire & Rubber Company against OFCCP in 1979 through 1981 (just as the case was being heard in federal District Court after two years of litigation in the administrative courts, I was joining OFCCP and fell off the trial team) when OFCCP sued Firestone for having prepared allegedly inadequate AAPs. OFCCP had several complaints. First that Firestone had used two standard deviations to declare when to declare goals under OFCCP’s then (and now) Rule that contractors must set a goal for Minorities and Women when there are fewer minorities and women than one would reasonably expect in the workforce. OFCCP argued that its Rule required a goal every time utilization was even 1/10th of 1 percent below calculated availability. The Courts ruled that the APA required OFCCP to specify the use of the “any difference Rule” if that is what it wanted instead of either the 80% Rule, the Two Standard Deviation Rule or perhaps use of Fishers’ Exact analyses to determine when there were fewer Minorities or Women than what one would reasonably expect. The APA and the Firestone ruling is why contractors today enjoy use of any of the four above-referenced Rules to define when to set a goal for Minorities and Women.
Similarly, OFCCP argued in the Firestone case that its then Rule that required contractors to create availability analyses only for “major” Job Groups meant that all employees had to be in some Job Group somewhere. Firestone interpreted the word “major” to mean 50 or more and only built a Job Group if there were 50 or more similarly situated employees. The Court upheld Firestone’s interpretation under the APA holding that OFCCP could change the requirement to require all employees to be in Job Groups, but had to write that down with specificity in the Rule to satisfy the APA’s clarity and “level playing field” requirements. So, Firestone prevailed. By the way, many years later OFCCP Director Shirley Wilcher showed how Rulemaking is done properly by changing the “major Job Group Rule.” She did so by issuing a new regulation in 2000 which required that “all” employees in an AAP establishment go into some Job Group, somewhere. And, that is why federal contractors today have the obligation to create Job Groups as small as one employee. But Shirley understood the APA, did it correctly and wrote it down.
So, this cited OFCCP Rule at 41 CFR 60-2.32 is yet another “Hail Mary pass” hoping for only gullible contractors to bite and, if not, for malleable Administrative Law Judges to agree.
Here is the third of the three citations OFCCP has put forward to justify verification of contractor AAPs for Minorities and Women:
“CFR Citation: ***41 CFR 60-2.10(c)***.”
So, here is what 41 CFR Section 60-2.10(c) says in fact:
“41 CFR Section § 60-2.10 General purpose and contents of affirmative action programs.
(c) Documentation. Contractors must maintain and make available to OFCCP documentation of their compliance with §§ 60-2.11 through 60-2.17.”
Shirley Wilcher made this Rule operational in 2000 as the Clinton Administration was leaving office. Again however, a regulatory duty to make documentation available of compliance with each of the sections of OFCCP’s Rule providing the recipe for the six major component parts of AAPs for Minorities and Women is not a command to a contractor to supply a check-the-box certification. Rather, the intent and application of this Rule was and is to require contractors to provide OFCCP, during a Compliance Evaluation of AAPs for Minorities and Women, the underlying records supporting a contractor’s calculations and the records supporting each of the major component analyses of an AAP for Minorities and Women. This Rule was necessary, for example, when OFCCP questioned in an audit, whether the contractor properly listed employees in its Workforce Analysis, or whether the contractor had formed its Job Groups properly, or had calculated Availability properly or had undertaken proper statistical Disparity Analyses, etc.
Finally, what happens “bad” to a Covered federal Government contractor or Subcontractor which decides to stand on its legal rights, refuses to comply with either or both of OFCCP’s electronic filing and AAP certification initiatives, for whatever good, bad or indifferent reason, and tells OFCCP to just “pound sand”?
OFCCP has threatened two kinds of enforcement actions in its various writings to OMB.
First, OFCCP has threatened that “…contractors who (sic) fail to self-certify or who (sic) state that they have not developed an AAP as required by law would be more likely to be on the [audit selection] scheduling list than contractors that have self-certified.” However, the contractor would then obtain a viable defense to not engage the retaliatory OFCCP audit. This is because the contractor would be able to show that OFCCP had proceeded without authority under law.
Second, OFCCP has stated to OMB that OFCCP would file an enforcement action seeking debarment against a contractor refusing to comply with either or both of OFCCP’s electronic filing and/or AAP certification initiatives. However, OFCCP lacks the ability to debar a federal contractor, as do the courts. Rather, only the federal contractor can debar itself for failing to comply with a lawful FINAL order of the courts. Debarment under OFCCP’s Rules is different from every other kind of debarment in the federal contracting system in that it is not punitive…that is, it is not a punishment for a past bad deed. Rather, debarment is an “incentive” to future compliance. This is because the debarment is purged in the language of the law, or lifted in lay parlance, immediately upon the contractor’s agreement to comply with OFCCP’s valid compliance demand. And, there are no financial fines or penalties. For the lawyers reading this, OFCCP debarment is the administrative equivalent of judicial “civil contempt”: the offender has the “keys to the courthouse door” to allow it to escape punishment the moment the offender (even belatedly…after decades of litigation) agrees to comply. OFCCP debarment, by contrast, is not “criminal contempt,” in which the offender is punished or financially sanctioned for his violation.
While OFCCP’s two new electronic filing and AAP certification initiative are likely still probably another 6+ months away from becoming operational, OFCCP will eventually make it to the start line and start suggesting to/demanding of contractors that they comply with both initiatives. Contractors will have to decide whether they want to indulge OFCCP and comply even though OFCCP, as it dishearteningly has done so often in the past, is proceeding in the absence of legal authority.
Some contractors will say “yes” and some will say “no” to OFCCP’s initiatives. No contractor decision will be wrong. Some contractors will fear data security problems which are insurmountable for those contractors as data security fears heighten and are now nearing fever pitch in the private sector as one after another CEO and Data Security Officer are fired for data breaches and hacks. Other contractors will be repulsed at allocating OFCCP any more corporate resources or mindshare in a cost-competitive world driving attention and focus on competing vigorously and fairly in the marketplace against other well-run and efficient companies.
Other contractors may fear that their odds of being audited will go up if they comply and put certifications on file while their odds of being audited stay the same if they do not participate in OFCCP’s unauthorized certification exercise. For example, subcontractors which OFCCP has never heard about may not wish to come out of the darkness and into the limelight and become visible for the first time to OFCCP. Similarly, federal Government contractors lacking AAPs may not wish to confess that status knowing that such a report would undoubtedly trigger an avalanche of OFCCP audits which otherwise may not come.
And, if OFCCP does not get a large budget increase to enable it to hire more staff to beef up its now all-time low staffing (now hovering just above 400 employees nationwide), none of these initiatives much matter since OFCCP will in that circumstance lack staff sufficient either to determine which companies did not certify and to staff a meaningful number of audits.
Some contractors will give thought, I am sorry to predict, to just misrepresenting the status of their AAPs when choosing to voluntarily certify their AAPs. This would be far worse than just not filing any certifications since it is a criminal and civil offense to make false or knowingly misleading statements to a federal officer, including even OFCCP’s most junior Compliance Officer or when responding to an OFCCP question presented via software like AAP-VI. See 5 USC 1001. I have just never thought federal contractors looked particularly fashionable in black and white striped tops and bottoms. Not a good look.
And, OFCCP will be haunted by the thought that it should not waste its prosecutorial resources on mere paperwork violations, and should rather focus on discrimination law violators (i.e., failure to hire, failure to hire, failure to hire and compensation) where OFCCP has in the past made a difference in society…and can do it again…a positive difference.