GAMECHANGER: OFCCP Proposed Changes to Construction Compliance Review Scheduling Letter, Itemized Listing, and Construction Contract Award Notification Requirement Form

OFCCP published a Notice in the Federal Register seeking public comments on several changes to its Information Collection Requirements (“ICRs”) for federal construction contractors in conjunction with its request for Office of Management and Budget (“OMB”) approval to continue the ICRs pursuant to the federal Paperwork Reduction Act. The proposal includes significant changes to OFCCP’s Construction Contractor Scheduling Letter and Itemized Listing, including two new items and multiple new subparts to its existing Itemized Listing. OFCCP also proposes changes to OFCCP’s Construction Contract Award Notification Requirement Form CC–314. However, the notice itself does not list the substantive proposed changes. Details on the changes were revealed in the 34-page Supporting Statement that OFCCP submitted to OMB. The proposed revised Construction Contractor Scheduling Letter and Itemized Listing are available here, and the proposed revised Form CC-314 is available here.

Comments on the proposed changes are due on April 26, 2024, and can be submitted here or here.

Current Documents

OMB last approved OFCCP’s Construction ICRs, including its audit Scheduling Letter and Itemized Listing, without substantive change on November 22, 2022. That approval expires on July 31, 2024. Our story on that approval explained that the only change to the ICRs then was a minor change to OFCCP’s Construction Contract Award Notification Form (Form CC-314) to add a missing e-mail address field for the “Contractor Awarded Contract or Subcontract.” At that time, there was no change to the Construction Scheduling Letter and Itemized Listing.

The Construction Contractor Scheduling Letter includes an Itemized Listing with three parts to cover the three laws OFCCP enforces: Executive Order 11246 (“EO 11246”), Section 503 of the Rehabilitation Act of 1973 (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”).

What Are the Proposed Changes?

Throughout the Supporting Statement, OFCCP made repeated references to the changes it implemented in August 2023 to the Supply and Service Scheduling Letter and Itemized Listing. (See our stories here and here for details on those changes.) The changes OFCCP proposed to the Construction Contractor Scheduling Letter and Itemized Listing are detailed below.

Proposed Revisions to Construction Contractor Scheduling Letter (Supporting Statement pages 9-10)

Proposed revisions to the audit scheduling letter include:

• Page One: Adding in an option for the scheduling letter to be issued via email with a read receipt requested.
• Page Two: Requesting contractors submit their employment activity data in an electronic database that is readable and in comma-separated values (.csv), Excel (.xls and .xlsx), or alternatively, contact OFCCP to discuss alternative submission formats. During a compliance evaluation, OFCCP argued, it  uses various tools to conduct statistical analyses on the contractor’s employment activity data. To conduct efficient compliance evaluations, OFCCP asserted that it needs employment activity data in an electronic format that is compatible with the agency’s systems and in a useable format for analysis. The proposed language better ensures that OFCCP can access submitted records and promotes a more efficient analysis of contractors’ employment activity data, the agency claims.
  • Editor’s Note: OFCCP has chosen NOT to publish a proposed Rule for Notice and Comment pursuant to the Administrative Procedure Act to require federal contractors to report data in “electronic” format. As a result, OFCCP may not require contractors to submit their data in electronic (or digital) format and rather may only “request” a covered federal Government contractor/subcontractor to do so. (By the way: the agency does not mean “electronic” format, which could be a non-digitized picture taken from a cell phone or a PDF, for example. Rather the agency properly means that it wants contractor data in “digital” format so it may manipulate, copy, and paste the data and subject it to computerized review)
• Page Two: Revising submission instructions to request contactors submit their AAPs and Itemized Listing information electronically. Contractors will still have the option to mail this information, but electronic submission is the preferred method, as the parties may easily confirm receipt and the agency can more efficiently analyze the submission, OFCCP stated.
• Page Two: Revising the language to clarify that OFCCP may initiate enforcement proceedings if the requested information is not provided within 30 calendar days of contractor receipt of the letter.
  • Editor’s Note: This is much ado about nothing. By the time OFCCP had written up  its request for the USDOL Solicitor’s Office (“SOL”) to file an Administrative Complaint to compel the contractor to disclose the data, and L-O-N-G before SOL would ever have gotten around to reviewing OFCCP’s request and filing an Administrative Complaint, months (if not years) would have gone by and the additional week or month or even three or four months the contractor might have needed to deliver the data to OFCCP would have come and gone.
• Page Three: Revising the language to clarify that OFCCP will treat records provided by the contractor as confidential to the maximum extent the information is exempt from public disclosure under the federal Freedom of Information Act (“FOIA”) and will safeguard and protect personally identifiable information to the maximum extent allowable under the law in accordance with the Privacy Act.
  • Editor’s Note: This boils down to OFCCP trying to render assurances to the contractor community that OFCCP will exercise its discretion to invoke any applicable FOIA Exemptions form otherwise required disclosure of documents in the agency’s possession. These Exemptions from the FOIA’s otherwise mandatory disclosure requirement are typically Exemptions 7 (open investigation) and Exemption 4 (commercial, trade secret and confidential business information). OFCCP’s invocation of Exemption 4 to deny a public interest group’s requests for access to contractor EEO-1 Reports is the subject of ongoing litigation we last wrote about in an “In Brief” story on Thursday, February 15, 2024 you may find here. Please realize that OFCCP need not invoke a FOIA Exemption but rather must exercise its discretion to do so. So, this is a comforting note that OFCCP will exercise its discretion to seek to deny access to contractor data in the agency’s possession if the agency receives a FOIA request which the agency believes is potentially subject to an Exemption from required disclosure pursuant to the FOIA.
• Revising all references to “DOL” or “Department of Labor” to state “U.S. Department of Labor.”
• Making other minor language changes for clarity.

Proposed Revisions to OFCCP’s New Itemized Listing in Pursuit of its EO 11246 Mission and Authority (Supporting Statement pages 10-15)

This is the big news because of the burden these document collections represent to construction contractors undergoing OFCCP audits. Moreover, if approved as written, the data OFCCP would be collecting from construction contractors would, for the first time, allow OFCCP to routinely collect a comprehensive set of contractor employment data that would position the agency to be able to effectively analyze unlawful employment discrimination in the major employment transactions that construction contractors are typically engaged (Applicants vs Hires; Promotions; Involuntary Terminations; Layoffs and Recalls).

Proposed revisions to the OFCCP’s proposed new Itemized Listing in pursuit of the agency’s EO 11246 mission and authority include:

Item 1: Item 1 currently requests a list of all construction projects (Federal, non-Federal, and federally assisted) by name and location during the preceding 12 months, including information identifying each project as commercial or residential and Federal or non-Federal. OFCCP proposes minor language changes for clarity and proposes modifying this item to also request the start and end dates (or anticipated end date) of each construction project. Having this information is important in construction reviews, OFCCP argued to OMB, as construction projects vary in duration and frequently stop work or reduce work hours due to seasonal downturns or other factors. Having information on the start and end dates will promote more efficient analyses, as OFCCP will better understand gaps and fluctuations in the contractor’s hiring, utilization, and pay data. This information will also help OFCCP better coordinate the agency’s timing to conducting on-site reviews and contact company personnel.

Item 2: Item 2 as it currently reads before OFCCP’s request today requests “[e]mployee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months.” For each project, Item 2 requests payroll data with the following information:

1. Employee name or ID;
2. Gender;
3. Race/Ethnicity;
4. Hire date;
5. All trades the employee was paid to work in;
6. Total hours worked in each trade;
7. Overtime hours worked in each trade;
8. Wage rate(s) for each trade;
9. Union affiliation;
10. Apprenticeship status; and
11. Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees.

OFCCP proposes modifying Item 2 to seek six additional fields of employment data  and to read in the future , if OMB approves, as follows:

For each project identified in Item 1, please provide employee level payroll data for all construction trade employees working in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months:

1. Employee name or ID;
2. Gender;
3. Race/Ethnicity;
4. Hire date;
5. Union affiliation;
6. Apprenticeship status;
7. Employment type, including but not limited to, full-time, part-time, contract, per diem or day labor, and temporary employees;
8. Job title;
9. Trade or supervision, inspection, or onsite function (g., foreperson);
10. Regular hours worked in each trade, as indicated in your certified payroll;
11. Regular rate of pay, as indicated in your certified payroll;
12. Total regular pay, as indicated in your certified payroll;
13. Overtime hours worked in each trade, as indicated in your certified payroll;
14. Overtime rate of pay, as indicated in your certified payroll;
15. Total overtime pay, as indicated in your certified payroll;
16. Bonus or other pay, as indicated in your certified payroll;
17. Time period covered for the pay and work hours provided in (j)-(p).

Important: According to OFCCP, asking for this additional information will allow the agency to conduct a more robust analysis, where the agency can determine whether there is potential discrimination with respect to all forms of compensation (e.g., disparities in overtime and bonuses), work hours, assignments, and other employment opportunities).

Item 3 ( NEW  subparts): Item 3 currently requests data on the contractor’s construction trade employment activity (applicants, hires, promotions, layoffs, recalls, and terminations) in the covered area during the preceding 12 months.

OFCCP proposes modifying this item to clarify that the contractor should be providing the requested information for all trade employees, as well as those employees involved in the supervision, inspection, and other on-site functions incidental to the actual construction. This clarification is consistent with 41 CFR 60-1.3, which provides that “construction work” includes the supervision, inspection, and other on-site functions incidental to the actual construction, OFCCP stated.

Item 3(a) currently requests information on all applicants identified by name, race/ethnicity, gender, date applied, trade(s) applied for, referral source, and the action taken for each individual. OFCCP proposes modifying Item 3(a) to clarify that the information should include information on walk up applicants, electronic applications, and referrals from unions and/or employment and recruitment services. According to OFCCP, requesting this information is consistent with the regulations at 41 CFR 60-4.3(a)7.c, which require contractors to maintain this applicant and recruitment source information. The proposed language will ensure that contractors are clear about the scope of OFCCP’s request and will ensure greater uniformity in what OFCCP field offices request for this Item, the agency asserted.

Item 3(b) currently requests the contractor’s hire information including the name, trade, gender, and race/ethnicity for each employee. OFCCP proposes modifying this request to include information on the employees’ job title and date of hire. OFCCP explained that it uses the information in Item 3(b) to analyze whether there is potential hiring discrimination, and this additional information will assist OFCCP in determining which positions are similar for the purpose of analysis. Item 3(c) requires contractors to provide the name, trade/job title, gender, and race/ethnicity for each promoted employee. OFCCP uses this information to analyze whether there is potential discrimination with respect to promotions. OFCCP proposes modifying this item to include the date of each promotion. This information will improve OFCCP’s promotion analyses, as the agency can more easily identify which employees should be grouped together in its analyses and better identify what policies and practices were in place at the time of the promotion, OFCCP stated.

Item 3 currently requests information on layoffs but does not include a subpart specifying the layoff data contractors must submit. For clarity and consistency with the other items requested in Item 3, OFCCP proposes adding a new subpart specifying what information contractors must provide with respect to layoffs. The proposed language reads as follows:

Layoffs: This list should include the name, trade/job title, gender, race/ethnicity, date of layoff, reason for layoff, and recall eligibility.

Specifying this information will provide clarity on the scope of OFCCP’s request and ensure greater uniformity in what information field offices are requesting with respect to layoffs, the agency maintained.

Item 3(d) currently requests information on a contractor’s recalls, including the name, trade/job title, gender, and race/ethnicity for each recalled employee. OFCCP proposes expanding this request to include the date of the recall. Having this information will allow OFCCP to better analyze whether employees were subjected to similar/dissimilar treatment with respect to recalls, and better identify what recall policies and practices were in place at the time of each recall, the agency said. OFCCP also proposes moving this item to Item 3(e) (due to the addition of the layoff subpart discussed above).

Item 3(e) currently requests information on a contractor’s terminations, including the name, trade/job title, gender, and race/ethnicity for each terminated employee, and the specific reason for termination. OFCCP proposes expanding this request to include the date of the termination. Having this information will allow OFCCP to better analyze whether employees were subjected to similar/dissimilar treatment with respect to terminations, and better identify what termination policies and practices were in place at the time of each termination, according to the agency. OFCCP also proposes moving this item to Item 3(f) (due to the addition of the layoff subpart discussed above).

Item 4: Item 4 currently requests a copy of the company’s current EEO Policy, as required by 41 CFR 60-4.3(a)7.f. OFCCP proposes modifying this request to read as follows:

Copies of the company’s current Equal Employment Opportunity (EEO) policies, including the EEO Policy implemented pursuant to 41 CFR 60-4.3(a)7.f., antiharassment policies, policies on EEO complaint procedures, policies on employment agreements that impact employees’ equal opportunity rights and complaint processes (e.g., policies on arbitration agreements), and any other EEO policies.

According to OFCCP, having this information at the desk audit will help OFCCP ascertain whether there are any provisions in these employment policies and agreements that limit or interfere with employees’ rights under OFCCP’s antidiscrimination authorities and will allow OFCCP to better determine where to focus its inquiries to have the greatest impact. The proposed changes will also better align Item 4 with the information OFCCP already requests in its Supply and Service scheduling letter, promoting greater uniformity across OFCCP’s programs and enforcement, the agency stated.

Item 13: Item 13 currently requests a list of training programs the contractor participated in, including upgrading programs, apprenticeship, trainee programs, and on-the-job training programs in the covered area during the preceding 12 months. OFCCP proposes adding pre-apprenticeship programs to the list of training programs noted in this request. The language in the current scheduling letter is intended to cover these programs, but adding a specific reference to pre-apprenticeship programs will clarify the scope of this request and ensure uniformity in contractors’ submissions, OFCCP explained.

Item 15: Item 15 of the E.O. 11246 itemized listing currently requests a copy of the contractor’s reasonable accommodation policies and documentation of all accommodation requests received and their resolution, if any, during the preceding 12 months. The Section 503 and VEVRAA itemized listings request contractors submit documentation of all accommodation requests received and their resolution for individuals with a disability and disabled veterans, as required by 41 CFR 60-741.80 and 41 CFR 60-300.80. OFCCP proposes modifying Item 15 of the E.O. 11246 itemized listing to clarify that the contractor is only required to submit copies of its reasonable accommodation requests and resolutions, if any, if such reasonable accommodation requests and resolutions are different than those submitted in response to the Section 503 and VEVRAA itemized listings. This will prevent contractors from submitting duplicative information when responding to these items, OFCCP stated.

 NEW  Item 16: OFCCP’s regulations at 41 CFR 60-4.3(a)7.k require a contractor to validate all tests and other selection requirements where there is an obligation to do so pursuant to the Uniform Guidelines on Employee Selection Procedures (“UGESP”) requirements outlined in 41 CFR part 60–3. (Contractors do not need validate any test, although a “Best Practice” is to validate those tests which demonstrate a legally meaningful statistical “adverse impact” (meant in its technical sense and not just as to every statistical disparity). To verify contractors’ compliance with this requirement, OFCCP proposes adding a new item, Item 16, that reads as follows:

Identify all tests and selection procedures used in the hiring process for positions in the (as appropriate insert either (1) the name(s) of SMSA or (2) the name(s) of Non-SMSA) during the preceding 12 months. Provide evidence that these tests and selection procedures were validated where necessary in accordance with 41 CFR 60-4.3(a)7.k.

According to the agency, reviewing this information at the desk audit stage will help OFCCP determine whether all scheduled contractors are in compliance with the regulations. The language in the current scheduling letter does not allow for OFCCP to make this determination.

 NEW  Item 17 : OFCCP’s regulations at 41 CFR 60-4.3(a)7.m require a contractor to “ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the contractor’s obligations under these specifications are being carried out.” To verify contractors’ compliance with this requirement, OFCCP proposes adding a new item, Item 17, that reads as follows:

Provide evidence that your company monitored personnel and employment related activities during the preceding year to ensure that seniority practices, job classifications, work assignments and other personnel practices did not have a discriminatory effect and that the EEO policy and the contractor’s EEO obligations were being carried out, as provided in 41 CFR 60-4.3(a)7.m.

Reviewing this information at the desk audit stage will assist OFCCP in determining whether all scheduled contractors are meeting this obligation, the agency noted. The language in the current scheduling letter does not allow for OFCCP to make this determination.

Proposed Revisions in Pursuit of the Agency’s Section 503 Itemized Listing Mission and Authority include: (Supporting Statement pages 15-18)

Proposed revisions to the Section 503 Itemized Listing include:

Item 3: Item 3 currently requests the following information from contractors:

Your most recent assessment of your personnel processes, as required by 41 CFR 60-741.44(b), including a description of the assessment and any actions taken or changes made as a result of the assessment.

To provide more specificity on the documentation a contractor must submit regarding its review of personnel processes, OFCCP proposes revising Section 503 Item 3 to the following:

Your most recent assessment of your personnel processes, as required by 41 CFR 60-741.44(b). This assessment shall include, at a minimum, a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment. 

Contractors have also expressed confusion over what documentation is sufficient for this item, and the more detailed request provides greater specificity about what information contractors must provide to document their compliance, OFCCP reported. According to the agency, the proposed language will promote uniformity in contractors’ submissions and ensure consistency in what OFCCP is requesting across field offices. Further, OFCCP recently added this new language to a similar item in the Supply and Service scheduling letter. Adding this language to the construction scheduling letter will promote greater uniformity across OFCCP’s programs, the agency said.

Item 5: Item 5 currently requests the following information from contractors:

Results of the evaluation of the effectiveness of outreach and recruitment efforts taken to identify and recruit qualified individuals with disabilities as described in 41 CFR 60-741.44(f).

To provide more specificity on the documentation a contractor must submit regarding its Section 503 outreach and positive recruitment efforts, OFCCP proposes revising Item 5 to read as follows:

Documentation of appropriate outreach and positive recruitment activities reasonably designed to effectively recruit qualified individuals with disabilities, and an assessment of the effectiveness of these efforts as provided in 41 CFR 60-741.44(f). This includes documentation of all activities undertaken to comply with the obligations at 41 CFR 60-741.44(f), the criteria used to evaluate the effectiveness of each effort, and whether you found each effort to be effective. The documentation should also indicate whether you believe the totality of your efforts were effective. In the event the totality of your efforts were not effective in identifying and recruiting qualified individuals with disabilities, provide detailed documentation describing your actions in implementing and identifying alternative efforts, as provided in 41 CFR 60-741.44(f)(3).

Similar to Item 3 discussed above, contractors have expressed confusion over what documentation is sufficient for Item 5, OFCCP reported. This additional language will clarify the scope of OFCCP’s request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices, according to the agency. Further, OFCCP recently added this new language to a similar item in the Supply and Service scheduling letter. Adding this language to the construction scheduling letter promotes greater uniformity across OFCCP’s programs, the agency asserted.

Item 8: Item 8 currently requests the following information from contractors:

The utilization analysis evaluating the representation of individuals with disabilities in each construction trade, or, if appropriate, evaluating the representation of individuals with disabilities in the workforce as a whole, as provided in 41 CFR 60-741.45. If you are six months or more into your current AAP year on the date you receive this letter, please also submit information that reflects current year progress.

OFCCP proposes revising Item 8 to provide more specificity on the documentation a contractor must submit regarding their Section 503 utilization analysis. The proposed item reads as follows:

The utilization analysis evaluating the representation of individuals with disabilities in each construction trade, or, if appropriate, evaluating the representation of individuals with disabilities in the workforce as a whole, as provided in 41 CFR 60-741.45. If any underutilization of individuals with disabilities is identified, provide a description of the steps taken to determine whether and where impediments to equal employment opportunity exist in accordance with 41 CFR 60-741.45(e). Pursuant to 41 CFR 60-741.45(e) and (f), this description shall include your assessment of personnel processes, the effectiveness of your outreach and recruitment efforts (if different than Item 5), the results of your affirmative action program audit, any other areas that might affect the success of the affirmative action program, and a description of action-oriented programs developed and executed to correct any identified problem areas. Provide this information for the immediately preceding AAP year. If you are six months or more into your current AAP year on the date you receive this listing, provide the information that reflects your progress for at least the first six months of the current AAP year.

Similar to the items discussed above, contractors have expressed confusion over what documentation is sufficient for Item 8, OFCCP reported. According to the agency, this additional language will clarify the scope of the request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices. Further, OFCCP recently added this new language to a similar item in the Supply and Service scheduling letter. Adding this language to the construction scheduling letter will promote greater uniformity across OFCCP’s programs, the agency maintained.

Additional Proposed Revisions: Federally assisted construction contracts are exempt from the Section 503 requirements. Therefore, OFCCP proposes adding in language clarifying that companies whose sole contract coverage comes from federally assisted construction contracts are not required to submit the information requested in the Section 503 Itemized Listing.

Proposed Revisions to the Agency’s New Itemized Listing in pursuit of the Agency’s VEVRAA Mission and Authority (Supporting Statement pages 18-19)

Proposed revisions to the VEVRAA Itemized Listing include:

Item 3: Item 3 currently requests the following information from contractors:

Your most recent assessment of your personnel processes, as required by 41 CFR 60-300.44(b), including a description of the assessment and any actions taken or changes made as a result of the assessment.

OFCCP proposes to revise Item 3 in the VEVRAA section of its Itemized Listing to the following:

Your most recent assessment of your personnel processes, as required by 41 CFR 60-300.44(b). This assessment shall include, at a minimum, a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment.

Like the Section 503 changes discussed above, adding the proposed language will clarify the scope of OFCCP’s request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices, the agency said. Recently, OFCCP also added this level of specificity to its Supply and Service scheduling letter. Adding this language to the construction scheduling letter will promote uniformity across OFCCP’s programs, the agency stated.

Item 5: Item 5 currently requests the following information from contractors:

Results of the evaluation of the effectiveness of outreach and recruitment efforts that were intended to identify and recruit qualified protected veterans as described in 41 CFR 60-300.44(f).

To provide more specificity on the documentation a contractor must submit regarding its VEVRAA outreach and positive recruitment efforts, OFCCP proposes revising Item 5 to read as follows:

Documentation of appropriate outreach and positive recruitment activities reasonably designed to effectively recruit qualified protected veterans, and an assessment of the effectiveness of these efforts as provided in 41 CFR 60-300.44(f). This includes documentation of all activities undertaken to comply with the obligations at 41 CFR 60-300.44(f), the criteria used to evaluate the effectiveness of each effort, and whether you found each effort to be effective. The documentation should also indicate whether you believe the totality of your efforts were effective. In the event the totality of your efforts were not effective in identifying and recruiting qualified protected veterans, provide detailed documentation describing your actions in implementing and identifying alternative efforts, as provided in 41 CFR 60-300.44(f)(3).

Like the Section 503 items discussed above, contractors have expressed confusion over what documentation is sufficient for their Item 5 VEVRAA submission, OFCCP reported. This additional language will clarify the scope of OFCCP’s request, promote uniformity in contractors’ submissions, and ensure consistency in what OFCCP is requesting across field offices, the agency stated. Recently, OFCCP also added this level of specificity to its Supply and Service scheduling letter. Adding this language to the construction scheduling letter will promote uniformity across OFCCP’s programs, the agency noted.

Item 8: Item 8 currently requests information on a contractor’s VEVRAA hiring benchmark. Specifically, the item requests documentation of the hiring benchmark adopted, and the methodology used to establish the benchmark if the contract used the five factors described in 41 CFR 60-300.45(b)(2). OFCCP proposes adding language that clarifies that the request is for the hiring benchmark adopted for the current AAP year. The current language is unclear about the applicable AAP period.

Additional Proposed Revisions: Similar to Section 503, federally assisted construction contracts are exempt from the VEVRAA requirements. Therefore, OFCCP proposes adding in language clarifying that companies whose sole contract coverage comes from federally assisted construction contracts are not required to submit the information requested in the VEVRAA Itemized Listing.

Proposed Changes to Form CC-314 – Construction Contract Award Notification Requirement Form (Supporting Statement Pages 19-21)

The currently approved CC-314 requires contracting officers, applicants, and contractors to submit information relevant to the contract award such as the prime contract number, the name of the awarding Federal agency, applicant, or contractor, the name and contact information of the representative submitting the notification, information on the contractor receiving the award, and basic information on the awarded contract.

OFCCP proposes the following changes: 

• Requesting contract type (i.e., whether the contract is a prime contract or subcontract).
  • OFCCP can use this information when developing its compliance evaluation scheduling list.
• Requesting the NAICS code for the contractor receiving the award if a prime contract.
  • According to OFCCP, having NAICS code information allows the agency to identify the specific type of construction work being performed. OFCCP will use this information to develop its compliance evaluation scheduling list.
• Inquiring about whether the notice is being submitted on behalf of a nonconstruction contractor subject to the notice requirements.
  • The regulations at 41 CFR 60-4.2(b)-(c) provide that nonconstruction contractors are subject to the notice requirement if construction work is necessary in whole or in part to the performance of their nonconstruction contract. Adding the proposed inquiry will allow OFCCP to determine whether the notice is on behalf of these nonconstruction contractors, the agency explained. Having this information allows OFCCP to better identify the pool of contractors for its scheduling lists, the agency noted.
• Requesting the Unique Entity Identifier (UEI) or DUNS number for awarding entities that are contractors.
  • The UEI is an alphanumeric identifier assigned to an entity by the System for Award Management (SAM.gov). OFCCP uses the UEI to identify businesses and other entities that do business with the Federal Government. The UEI has replaced the Data Universal Numbering System (DUNS) number, which the Federal Government stopped using in April 2022. OFCCP proposes including the option to provide a DUNS Number to account for those users who may have not yet completed the transition UEI. 
• Requesting the Employer Identification Number (EIN) for awarding entities that are contractors.
  • Having EIN information allows the agency to align the submitted information with contract information in available data sources such as USASpending.gov, OFCCP explained. OFCCP will use this information to develop its compliance evaluation scheduling list and determine the agency’s jurisdiction over contractors.

In addition to these changes, OFCCP proposes updating the help line call in information on the form and proposes other minor language changes for clarity.

To allow for a transition period, OFCCP is requesting to use the currently approved scheduling letter and CC-314 up to 120 days after OMB approves the new collection. The implementation period will allow OFCCP to update IT systems with the changes described above, the agency explained.

Purported Information Collection Hour Burden (Supporting Statement pages 24-29)

The Supporting Statement at pages 24-29 breaks down OFCCP’s purported additional contractor compliance burdens via multiple charts. Construction Contractors are not likely to agree with OFCCP’s ‘burden hours” assessments of the time and cost it will take the contractor to comply with OFCCP’s proposals.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.